Author: Danielle Citron

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Some Thoughts on Section 230 and Recent Criminal Arrests

We’ve devoted considerable attention on our blog to Section 230 of the Communications Decency Act, which immunizes online service providers/hosts from liability for user-generated content. Site operators are protected from liability even though they knew (or should have known) that user-generated content contained defamation, privacy invasions, intentional infliction of emotional distress, civil rights violations, and state criminal activity. Providing a safe harbor for ISPs, search engines, and social networks is a good thing. If communication conduits like ISPs did not enjoy Section 230 immunity, they would surely censor much valuable online content to avoid publisher liability. The same is true of search engines that index the vast universe of online content and produce relevant information to users in seconds and, for that matter, social media providers that host millions, and some billions, of users. Without Section 230, search engines like Google and Bing and social media providers like Yelp, Trip Advisor, Facebook, YouTube, and Twitter might not exist. The fear of publisher liability would have inhibited their growth. For that reason, Congress reaffirmed Section 230’s importance in the SPEECH Act of 2010, which requires U.S. courts to apply the First Amendment and Section 230 in assessing foreign defamation judgments.

In the past few months, prosecutors have arrested notorious revenge porn site operators Hunter Moore, Kevin Bolleart, and Casey Meyering. Those arrests have raised the question, what about Section 230? Hunter Moore’s arrest is the least controversial. Although Section 230 immunity is broad sweeping, it isn’t absolute. It exempts from its reach federal criminal law, intellectual property law, and the Electronic Communications Privacy Act. As Section 230(e) provides, the statute has “[n]o effect” on “any [f]ederal criminal statute” and does not “limit or expand any law pertaining to intellectual property.” Federal prosecutors indicted Moore for conspiring to hack into people’s computers in order to steal their nude images. According to the indictment, Moore paid a computer hacker to access women’s password-protected computers and e-mail accounts to steal nude photos for financial gain—profits for his revenge porn site Is Anyone Up. Site operators may be held accountable for violating federal criminal law.

What about revenge porn operators Bolleart and Meyerson who are facing state criminal charges? Generally speaking, site operators are not transformed into “information content providers” (who are not immunized from liability) unless they co-developed or co-created the allegedly criminal/tortious content, such as by paying for the illegal content and reselling it or drafting some of the contested content themselves. California Attorney General Kamala Harris’s prosecutions of both Bolleart and Meyerson press the question whether Section 230’s immunity extends to sites that effectively engage in extortion by encouraging the posting of sensitive private information and profiting from its removal.

Let’s take Bolleart’s case. It’s based on a similar theory as the case against Meyerson, who runs WinbyState, a private revenge porn site with a connected site that charges for the take down of photos. In December 2013, Bollaert, operator of revenge porn site UGotPosted, was indicted for extortion, conspiracy, and identity theft. His site featured the nude photos, Facebook screen shots, and contact information of more than 10,000 individuals. The indictment alleged that Bollaert ran the revenge porn site with a companion takedown site, Change My Reputation. According to the indictment, when Bollaert received complaints from individuals, he would send them e-mails directing them to the takedown site, which charged up to $350 for the removal of photos. Attorney General Harris explained that Bollaert “published intimate photos of unsuspecting victims and turned their public humiliation and betrayal into a commodity with the potential to devastate lives.”

Bollaert will surely challenge the state’s criminal law charges on Section 230 grounds. His strongest argument is that charging for the removal of user-generated photos is not tantamount to co-developing them. Said another way, charging for the removal of content is not the same as paying for, or helping develop, it. That is especially true of the identity theft charges because Bollaert never personally passed himself off as the subjects depicted in the photos. Nonetheless, the state has a strong argument that the extortion charges fall outside Section 230’s immunity because they hinge on what Bollaert himself did and said, not on what his users posted. Only time will tell if that sort of argument will prevail. Even if the California AG’s charges are dismissed on Section 230 grounds, federal prosecutors could charge Bollaert with federal criminal extortion charges. Sites that encourage cyber harassment and charge for its removal (or have a financial arrangement with removal services) are engaging in extortion. At the least, they are actively and knowingly conspiring in a scheme of extortion. Of course, this possibility depends on the enforcement of federal criminal law vis-à-vis cyber stalking, which as we have seen is stymied by social attitudes and insufficient training.

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Exciting New Chapter for CoOp: Thanks to Collins and Yung

The blog has made some exciting steps forward. We have changed our look. For many, I imagine it has taken some getting used to–I wrestled with the various changes to the New  Republic and New York magazines and each time, I adjusted. We are hoping that our new look appeals to our readers. More importantly, we have two new, fantastic permabloggers. Ronald K.L. Collins is a free speech thought leader; Corey Yung does fantastic work on judicial decision-making, criminal law, and sex crimes. Looking forward to reading and writing!

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Introducing Guest Blogger Margaret Hu

I am delighted to introduce Professor Margaret Hu who will be guest blogging with us this month. I’ve blogged about her superb work here, and it is such a honor to have her aboard.

HU-MARGARET_newbkgrnd

Professor Hu is an Assistant Professor of Law at Washington and Lee University School of Law, and joined the faculty in 2013. Her research interests include the intersection of immigration policy, national security, cybersurveillance, and civil rights.  Previously, she served as senior policy advisor for the White House Initiative on Asian Americans and Pacific Islanders, and also served as special policy counsel in the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), Civil Rights Division, U.S. Department of Justice, in Washington, D.C. Professor Hu’s work has been published in the Indiana Law Journal and the U.C. Davis Law Review.
Professor Hu holds a B.A. from the University of Kansas and a J.D. from Duke Law School. She is a Truman Scholar and a Foreign Language Area Studies Scholar. She clerked for Judge Rosemary Barkett on the U.S. Court of Appeals, Eleventh Circuit, and subsequently joined the U.S. Department of Justice through the Attorney General’s Honors Program.
Here are links to her work:

 

 

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Welcoming Back Ari Waldman

We are thrilled to welcome back Professor Ari Ezra Waldmanpicture_002_-_version_2-1.jpg to the blog! Professor Waldman is Associate Professor and Director of the Institute for Information Law and Policy at New York Law School and the Paul F. Lazarsfeld Fellow in the Department of Sociology at Columbia University. His research focuses on privacy, online hate and harassment, and digital aspects of intellectual property law. His doctoral dissertation, tentatively titled, “Privacy as Trust,” is a study of online sharing behavior and it’s implications for privacy law and policy. He is a graduate of Harvard Law School and Harvard College.

His recent publications include:

Durkheim’s Internet: Social and Political Theory in Online Society, 7 N.Y.U. J. LAW & LIBERTY 355 (2013)

Marriage Rights and the Good Life: A Sociological Theory of Marriage and Constitutional Law, 64 HASTINGS L. J. 739 (2013)

All Those Like You: Identity Aggression and Student Speech, 77 MISSOURI L. REV. 563 (2013)

Hostile Educational Environments,71 MARYLAND L. REV. 705 (2012)

Tormented: Anti-Gay Bullying in Schools, 84 TEMPLE L. REV. 385 (2012)

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Atrocious Privacy Invasion: Non-Consensual Videotaping of Sex Indicted in NY

Criminalizing privacy invasions has a long history. In their ground-break article The Right to Privacy published in 1890, Samuel Warren and Louis Brandeis argued that “[i]t would doubtless be desirable that the privacy of the individual should receive the added protection of the criminal law.” Since that time, lawmakers have banned the non-consensual recording of individuals in a state of undress in contexts where they have reasonable expectation of privacy. New York’s unlawful surveillance law, for instance, prohibits use of an imaging device to secretly record or to broadcast another person undressing or having sex for the purpose of degrading that person in cases where the person had a reasonable expectation of privacy.

In November 2013, a New York former private wealth adviser was indicted for nineteen counts of unlawful surveillance and attempted unlawful surveillance for secretly taping himself having sex with different women without their consent. The illegal tapings allegedly occurred over a year’s time and apparently were many.

The New York Post talked to one of the victim’s attorney, Daniel Parker, who explained that the man posted the illegal videos on Internet sites. According to Parker, the man “used an elaborate system of surveillance using multiple devices in both his bedroom and their homes.” In other words, the man not only had various cameras in his own bedroom to tape himself having sex with women who had no idea and never consented but he also secretly taped himself having sex with the women in their homes. Parker explained that the man “left a trail and it was on YouTube and Vimeo.” What were those hidden devices? The man apparently used a hidden camera, a web cam and a stealth phone app to film the women engaged in various sexual acts. According to Parker, the man installed a hidden camera in the bookshelf of his East 69th Street apartment.

The victims delivered the video footage to the Manhattan District Attorney’s Office prompting the investigation. Kudos to prosecutor Siobahn Carty for bringing the case, though my sense is that it took the victims considerable energy and time to convince law enforcement to take their case seriously and to understand the technology used to perpetrated the egregious privacy violations. Technical ignorance is common amongst law enforcement, well, and common for may people. Troubling cultural attitudes and “I don’t get the tech” response are notorious responses to different forms of harassment, including non-consensual taping of individuals in their most intimate moments. I will report more on the case as I get a hold of the indictment.


 

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Call for Papers: “Governing Intelligence in the Digital Age” Sponsored by Stanford Journal on International Law

The Stanford Journal on International Law has a call for papers for an upcoming conference entitled “Governing Intelligence in the Digital Age.”

Governing Intelligence

in the Digital Age

May 2-3, 2014 at Stanford Law School

Background

 

In the aftermath of former US National Security Agency (NSA) contractor Edward J. Snowden’s disclosures about the scale of the NSA’s electronic surveillance operations, the recurrent dispute over the post-9/11 boundaries of the national security state is once again in full swing.

In the United States, the revelations have brought to the fore concerns ranging from the so-called balance between national security and privacy to the proper degree of judicial and congressional oversight of the Intelligence Community.  Legislators, academics, and commentators have put forward various proposals to rein in intelligence including, most prominently, calls for greater transparency in the Foreign Intelligence Surveillance Court.  As a result, Senator Dianne Feinstein, Chair of the U.S. Senate Select Committee on Intelligence, has pledged to conduct a “total review” of all intelligence programs.

Across the Atlantic, the LIBE Committee of the European Parliament has launched a wide-ranging inquiry into the legality of the alleged electronic mass surveillance of EU citizens.  The EP has also called for the suspension of the US-EU Agreement concerning the US Department of the Treasury’s Terrorist Finance Tracking Program (TFTP), which is meant to facilitate the transatlantic exchange of financial data for counterterrorism purposes.  Although the EP lacks formal authority to suspend the agreement, its forceful response may be indicative of the EU’s considerable concern for privacy, which may also be at work in its robust data protection regime. Read More

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Attention Prawfs in NYC for AALS: the Annual Prawfs/CoOp Happy Hour

Attention Prawfs in NYC for AALS: the annual Prawfs/Co-Op Happy Hour will be this Friday at 930pm until midnight (at least) at the Hilton “Bridges” Bar. See you then and there, and please pass it on!
As you’ll see from Yelp, we’re apparently prioritizing location and big pours in our selection of venue:
http://www.yelp.com/biz/bridges-bar-hilton-new-york-new-york

Much thanks to the wonderful Dan Markel for organizing it!

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Exciting news for the Center on Democracy & Technology: Nuala O’Connor Appointed President and CEO

Brilliant news: CDT’s Board of Directors just announced that Nuala O’Connor has been named President & CEO, effective January 21, 2014. O’Connor will succeed Leslie Harris, who is stepping down after leading CDT for nearly nine years. As the privacy community knows well, Harris provided extraordinary leadership: vision, enthusiasm, and commitment. O’Connor will build on that tradition in spades. She is the perfect leader for CDT.

From CDT’s announcement:

“Nuala drove an ambitious civil liberties agenda as the first Chief Privacy Officer at the Department of Homeland Security in a post 9-11 world. She fought for and implemented policies to protect the human rights of U.S. and global citizens in a climate of overreaching surveillance efforts. The Board is thrilled to have Nuala at the helm as CDT expands on 20 years of Internet policy work advancing civil liberties and human rights across the globe,” said Deirdre Mulligan, CDT Board Chair.

O’Connor is an internationally recognized expert in technology policy, particularly in the areas of privacy and information governance. O’Connor comes to CDT from Amazon.com, where she served both as Vice President of Compliance & Customer Trust and as Associate General Counsel for Privacy & Data Protection. Previously she served as the first Chief Privacy Officer at the U.S. Department of Homeland Security (DHS). At DHS, O’Connor was responsible for groundbreaking policy creation and implementation on the use of personal information in national security and law enforcement.

“I am honored to join the superb team at the Center for Democracy & Technology. CDT is at the forefront of advocating for civil liberties in the digital world,” said O’Connor. “There has never been a more important time in the fight to keep the Internet open, innovative and free. From government surveillance to data-driven algorithms to the Internet of things, challenges abound. I am committed to continuing to grow CDT’s global influence and impact as a voice for the open Internet and for the rights of its users.”

“Nuala is a brilliant choice to lead CDT. She is a passionate advocate for civil liberties, highly expert about the emerging global challenges and fully committed to CDT’s mission. She is a bold leader who will guide CDT into its next chapter. I have had the honor of working with CDT’s talented and thoughtful team for almost nine years. I am confident that they will thrive with Nuala at the helm,” said Leslie Harris.

Beyond her experience at Amazon and DHS, O’Connor has also worked in consumer privacy at General Electric, and as Chief Counsel for Technology at the U.S. Department of Commerce. She also created the privacy compliance department at DoubleClick and practiced law at Sidley Austin, Venable, and Hudson Cook.

O’Connor, who is originally from Belfast, Northern Ireland, holds an A.B. from Princeton University, an M.Ed. from Harvard University, and a J.D. from Georgetown University Law Center. She currently serves on numerous nonprofit boards, and is the recipient of a number of national awards, including the IAPP Vanguard Award, the Executive Women’s Forum’s Woman of Influence award, and was named to the Federal 100, but is most proud of having been named “Geek of the Week” by the Minority Media & Telecom Council in May 2013. She lives in the Washington, D.C. area with her three school-aged children.

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Andrew Blair-Stanek on “IP as a New Front in the Tax Avoidance Battle”

My colleague and guest blogger Andrew Blair-Stanek is working on a fascinating new piece entitled “IP as a New Front in the Tax Avoidance Battle.” As the piece exposes, multinationals’ IP-based tax avoidance is a serious problem that IP law, scholars, and practitioners have largely ignored. The abstract and corresponding cool diagram can be found here. I will blog more about it after the piece goes up on SSRN.