Category: Cyber Civil Rights


CCR Symposium: More on the “Civil Rights” Category

To follow up my earlier post on whether the problems of online threats and harassment are civil rights problems, I wanted to offer a hypo.

Imagine a blogger located in Berkeley, California, has a blog with a comment thread. One day, the blogger ends up banning a particular commenter (who indicates that he is a conservative white male) for being obnoxious. A few hours later, the blogger receives an anonymous e-mail from a reader who is pretty angry with the banning. After contesting the banning, the anonymous e-mailer adds this threat:

It appears to me that you have internalized a recently established feminine paradigm that seeks to excuse supposed adults from all address not amounting to deference. Not that you’d care, but seem to be something of a pussy. You are so aggressive in unilaterally redefining venerable norms of adulthood that I find myself hoping that you get mugged, just so you can appreciate what real pain is. Incidentally, Berkeley can be a dangerous place after dark.

Love and kisses.

Are threats like this part of a broader civil rights issue? Does it depend on the gender, race, and/or sexual orientation of the recipient blogger?

In this case, it was a real e-mail, and I happen to know that the recipient was a straight white male (as the recipient was me — this happened about 3 weeks ago, when I was in Berkeley for a talk at Boalt). Does that change the nature of the conduct or the proper legal response?


CCR Symposium: Legal Responses to Online Harassment

Danielle Citron’s article does a great job of reframing the question of online anonymous speech into an appropriate broader context. James has already posted about this, so I won’t reiterate his excellent points. The question that it leaves us with – how the law might be adjusted to incorporate these concerns – is a tricky one, however. It is particularly challenging because anonymity both shields anonymous attacks, and protects targeted minorities. Similarly, exposing anonymous harassers can both chill their speech, and protect the speech of their targets (and their targets’ communities), who might otherwise be silenced by threats. I can think of three broad options for a legal response – leave the system as it is, make individual speakers easier to find, or increase liability against conduit websites. Each of these solutions carries its own risks, and none seems like a perfect response…

First, we can retain the system as we have it now. By this I mean websites and most ISPs are not required to store identifying information about posters, and targets of online harassment must file John Doe subpoenas to uncover the identity of their attacker (assuming this is possible) before proceeding with a lawsuit. This system provides uncertain protection for the targets of online harassment, meaning that women and minority groups will continue to find themselves threatened and potentially muzzled online. As Citron notes, this environment can lead to very real structural effects, where not merely the targets, but everyone who identifies with the targets may find the Internet an increasingly inhospitable place.

Further, it provides inconsistent protection for anonymous speech online. Those who are aware that they are engaging in illegal behavior can take steps to ensure that their identity is virtually impossible to determine. If an egregious defender takes steps to shield himself, he will likely not be held liable. Thus, targets of online harassment can often uncover only those the posters who didn’t think their speech was problematic in the first place, or simply didn’t understand that they could be tracked. The worst violators get away free. As more and more lawsuits demonstrate that posters who don’t take such precautions can be caught, the distance between those who are caught and those who escape will grow greater. Already, John Doe lawsuits tend to uncover and punish the middling offenders rather than the most extreme. As a result, the current regime doesn’t provide consistent protection for anonymous speech, or for the targets on online harassment.

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CCR Symposium: Two Stories About Law’s Expressive Value

For the most part, Danielle Citron’s work on cyber harassment has me convinced. Both of her essential points—that online harassment of women is a serious problem, and that it can and should be countered using extant categories of civil rights (and other bodies of) law—seem exactly right. Because I basically agree with Citron’s core thesis, I am going use my posts in this symposium to focus on several ancillary points that are raised by this important work.

This post examines Citron’s invocation of law’s expressive dimension. In a point introduced in Cyber Civil Rights and amplified in Law’s Expressive Value in Combating Cyber Gender Harassment, Citron argues that one of the values of situating cyber gender harassment within a civil rights agenda is that it will efface the perception that the harm inflicted by online harassment is trivial.

This optimistic vision of law’s power to shape social norms possesses intuitive appeal, but it tells only half the story about law’s expressive value. Below the fold, I discuss in more detail an alternative account of how law interacts with social norms that complicates (though does not necessarily contradict) Citron’s thesis.

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CCR Symposium: A Mildly Skeptical Take

I suspect I may have been invited to this symposium to give a mildly dissenting view, and I won’t disappoint. In particular, I want to question whether it makes sense to construe these problems as “civil rights” issues, and what is gained from that.

It seems to me that a lot of the issues Danielle discusses in her very interesting paper are byproducts of how anonymity can unleash criminal behavior in online environments, especially in the form of threats and harassment. These problems are very real, and I find them very troubling. But I’m not entirely sure where the line is between seeing these problems as questions for the traditional mechanisms of torts and criminal law versus seeing them as “civil rights” issues.

It seems correct to me that a disproportionate amount of this behavior is targeted at groups traditionally protected by the civil rights laws (especially women). But no group is immune from it; this sort of behavior is disturbingly common online even outside traditionally targeted groups. Given that, I’m not entirely sure if it works to frame this as a civil rights issue, as well as what is to be gained from doing so. Or at least, my instinct is to be skeptical about that categorization; perhaps this symposium will lead me to change my mind.


CCR Symposium: The Civil Rights Agenda

For me, the most important part of Danielle Citron’s paper is right there in the title: the way she frames online harassment specifically as a civil rights problem. It’s one of those moves that’s so seemingly simple that the reader may be tempted to say yeah, yeah, so what? But then Citron shows what, directly and carefully. Online harassment isn’t just about individual bullies and victims–though it’s about that, too. It’s also about pervasive patterns of abuse, directed at vulnerable groups, that effectively deprive them of the ability to participate in important social institutions.

Another commentator at this symposium, Ann Bartow, has argued that some legal scholarship has “too much doctrine, and not enough dead bodies.” Cyber Civil Rights has plenty of dead bodies, especially the virtual effigies of women targeted by anonymous individuals–or worse, anonymous mobs–for online abuse. The paper opens with the story of Kathy Sierra, threatened with rape and strangulation, including the delightful comment, “The only thing Kathy has to offer me is that noose in her neck size.” The footnotes of the first part of Cyber Civil Rights give a grim tour through some some of online harassment’s greatest and most appalling hits.

Then–and this is the point of Bartow’s argument that scholars need to be willing to point out where the bodies are buried–Citron uses these unsettling stories to make a familiar doctrinal story strange. In the Internet law world, we’re accustomed to talking about harassment as an issue that combines two of our favorite Internet hobbyhorses: anonymity and Section 230‘s immunity for intermediaries. The result is that many serious, important debates about responses to harassment have run into the well-worn ruts of very old arguments (on Internet time, that is) about the legal standard for unmasking anonymous individuals online and about how much to make intermediaries liable for harmful content.

Shifting from there to civil rights frame, however, allows Citron to point out important but often-ignored features of harassment online, ones that suggest different doctrinal moves. Civil rights discourse helps us see the victims of harassment as members of a consistently subordinated group, rather than as just unlucky individuals. It helps us see the mob dynamics at work in these simulacra of lynchings, rather than thinking about each insult in isolation. It reminds us that there’s a long tradition of using law creatively to prevent personal bias from becoming societal discrimination.

Indeed, when you go back to the online harassment cases after reading Cyber Civil Rights, it’s striking how many of them are really civil rights cases. True, few of them buy into that frame, and few have provided much redress for victims, but they’re directly engaged with classic civil rights issues. Take Noah v. AOL, a 2003 case dismissing on section 230 grounds a lawsuit against AOL for doing nothing about anti-Muslim comments its chat rooms like “well allah can suck my dick you peice of ass” and “SMELLY TOWEL HEADS,” or, more recently, the Craigslist and cases about discriminatory online housing ads. The law in these cases is all about the ins and outs of interpreting section 230, but the facts are all about religious intolerance and racial segregation. Cyber Civil Rights suggests that when we think about cross-cutting issues in Internet law–such as anonymity or intermediary liability–we might do well to pause before diving into the technical specifics of the communications at stake and instead ask, “Why do we want to know?”

CCR Symposium: Balancing Anonymity and Accountability Online

Is cyberspace a “wild west“? Should “anything go” online? Are statements and behavior sharply distinguishable? Are the former “only words” that change the world through the unforced force of persuasion, and the latter the kind of action we rightfully fear and regulate?

Danielle Citron’s work Cyber Civil Rights suggests that the answer to all these questions is no. She both applies and challenges the old doctrinal categories we’ve used to deal with these issues–such as the speech/conduct distinction, the line between threats and mere contempt, and defamation law’s parsing of facts and opinions. Technology has made online reputations persistent, searchable, replicable, and visible. Citron powerfully argues that it’s time for their creators to be accountable as well.

Yet who is the creator of an online reputation? Is it individuals or aggregators? If the first pages of Google results that show up for a query about a certain person are dominated by critics, slanderers, rumorers, and haters, have each of those individuals created her reputation online? Or should the search engine itself (and those using it) take some responsibility, and agree to “technological due process” for the person whose unflattering portrait they’ve painted and sought out?

If we are to build an economy of accountability online, I believe that the behavior of all these groups will have to change. Citron focuses on the ultimate sources of online attacks, and her rich account of the harms they create and creative legal approaches to dealing with it are commendable. I propose to complement her work with a broader examination of the way in which undeservedly bad reputations are created and maintained online.

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