Category: Web 2.0


Bigoted Harassment, Alive and Well Online

With the help of law and changing norms, invidious discrimination has become less prevalent in arenas like schools, workplaces, hotels, and public transportation.  Due to our social environments, anti-discrimination law is fairly easy to enforce.  Because leaders usually can figure out those responsible for discriminatory conduct and ignore such behavior at their peril, bigotry raises a real risk of social sanction.  So too hate discourse in the public sphere is more muted.  A hundred years ago, Southern newspapers and leaders explicitly endorsed mob violence against blacks.  As late as 1940, a newspaper editor in Durham, North Carolina could state that: “A Negro is different from other people in that he’s an unfortunate branch of the human family who hasn’t been able to make out of himself all he is capable of” due to his “background of the jungle.”  In the post-Civil Rights era, the public expression of bigoted epithets and slurs occurs infrequently.  One rarely hears racist, sexist, or homophobic speech in mainstream media outlets.  Some interpret this state of affairs optimistically, as a sign that we are moving beyond race, gender, and arguably even sexual orientation.  The election of the first black President provoked proclamations of our entry into a “post-racial” era.  Many contend that we no longer need feminism anymore.  Prime time television is filled with images of female power, from Brenda Leigh Johnson’s chief on The Closer to Dr. Miranda Bailey’s “take no prisoners” surgeon on Grey’s Anatomy.  Who needs feminism anymore as its goals have been achieved?

But a new era is not upon us.  In some arenas, hate’s explicit form has repackaged itself in subtlety.  In public discourse, crude biological views of group inferiority are often replaced with a kinder, gentler “color-blind racism,” as sociologist Eduardo Bonilla-Silva calls it. The face of modern racism is, in journalist Touré’s estimation, “invisible or hard to discern, lurking in the shadows or hidden.”  The media has also better disguised sexism with its anxiety about female achievement, renewed and amplified objectification of young women’s bodies and faces, and the dual exploitation and punishment of female sexuality, as media scholar Susan Douglas explains.

Offline public discourse may now be on more neutral ground but its online counterpart is not.  While virulent bigotry continues behind closed doors, it increasingly appears in online spaces that blend public and private discourse.  Although televised sports commentary rarely features anti-gay rhetoric, online sports message boards are awash in in-your-face homophobic speech.  Racial epithets and slurs are common online, whether in Facebook profiles, Twitter posts, blog comments, or YouTube videos.  College students encounter more sexually inappropriate speech in online interactions than in face-to-face ones.

Matters have not improved since I started talking and writing about it since 2007, when we woke up, for a brief second, and paid attention to sexualized, misogynistic attacks on Kathy Sierra on her blog and two others and the targeting of female law students on AutoAdmit.  Then, technologist Tim O’Reilly and Wikipedia co-founder Jimmy Wales called for a Blogger’s Code of Conduct.  That effort failed to gain traction, and ever since the bigoted online abuse continues, silencing victims, ruining their online reputations, costing them jobs, and interfering with their ability to engage with others online and offline.  Newsweek’s always insightful Jessica Bennett has published important new piece on online misogyny and the Guardian’s Vanessa Thorpe and Richard Rogers similarly explore the rape threats and abuse of female bloggers.  I will be blogging about bigoted online harassment, as I am amidst writing a book about it and serving on the Inter-Parliamentary Task Force on Online Hate, which recently held a hearing at the House of Commons.  This all has to stop, and now.


Parents Facilitating Facebook Use for the Under 13 Set: The False Promise of Minimum Age Requirements

The Child Online Privacy Protection Act (COPPA), enacted in 1998 and finalized in 2000, requires commercial websites that target children under 13 or have actual knowledge that users are under 13 to ask for parental permission before collecting and using their information.  Legislators hoped to protect children from predatory marketing, safety risks such as stalking or kidnapping, and other abuses related to the use of children’s private data.  They also wanted more parental involvement in online data-collection practices and to encourage the development of technologies designed to give parents better tools to protect their kids’ online privacy.  Although COPPA has succeeded in stopping egregious predatory data practices, it has fallen short of its core goals.  The Federal Trade Commission (FTC), tasked with implementing and enforcing COPPA, admits that online industries have neither innovated nor emphasized mechanisms for obtaining verifiable parental consent.  Instead, to avoid costs associated with obtaining parental consent including potential fines for inappropriately dealing with children’s data, many sites just limit their services to children 13 and older. Sites typically include the age restriction in their Terms of Service agreements (ToS), to which users must consent when they create an account.  Many sites ask users for their age or birth date to ascertain if they are 13 or over.  Facebook does, for instance, and reserves the right to terminate accounts of users who “violate the letter or spirit” of its ToS.  To protect itself from possible legal exposure, Facebook employs cookies to prevent users from changing their minds about their age to evade the site’s requirements and actively deletes accounts where evidence suggests that the users are not in fact 13 or older.  This spring, the FTC called for comments on a proposed amendment to its Child Online Privacy Protection Rule, enacted in 2000 and renewed without change in 2005.  As FTC Chairman Jon Leibowitz explained: “In this era of rapid technological change, kids are often tech savvy but judgment poor. We want to ensure that the COPPA Rule is effective in helping parents protect their children online, without unnecessarily burdening online businesses.  We look forward to the continuing thoughtful input from industry, children’s advocates, and other stakeholders as we work to update the Rule.”

A study released this week by danah boyd, Eszter Hargittai, Jason Schultz, and John Palfrey sheds new light on COPPA’s failings.  Given the current regulatory attention to COPPA, the study could not be more timely or more important.  The authors surveyed a national sample of 1,007 parents and guardians who have children ages 10-14 living with them.  They found that although many sites restrict access to children, many parents knowingly allow their children to lie about their age–indeed, they often help them do so– to gain access to age-restricted sties in violation of the sites’ ToS.  This is true for some of the most popular social media sites and services, such as Facebook, Gmail, and Skype.  Specifically, the study revealed that 55% of 12 year olds had Facebook accounts while 32% of 11 year olds and 19% of 10 year olds did as well.  Seventy-eight percent of the parents of 10 year olds helped their kids set up their Facebook accounts; 68% of the parents of 11 year olds helped their kids sign up; and 76% of the parents of 12 year olds did the same.  Of those parents who reported that their child joined Facebook underage and helped create the child’s account, 74% knew that Facebook had a minimum age that their kids failed to meet.  Although Facebook’s minimum age is a requirement, just over a third of the those parents believed the minimum age was a recommendation.  Over three-quarters of parents believed that there are circumstances that make it okay for their child to sign up for a service even if their child fell short of the age requirement.  Those reasons included communicating with parents, other family members, and friends; use of the service for educational purposes; and because classmates used the service.  Half of the parents indicated that their child could violate the restriction only if under parental supervision.  As the authors explained, those parents felt as though the violation was acceptable because they were monitoring their children’s online practices.  Importantly, most parents either did not understand the reason for the age requirement or failed to appreciate its privacy goals.  While most parents had no idea what animated the requirement, some offered explanations such as concerns about the adult content or language on the site, “children don’t need to have a social media presence,” and “to protect minors from perverts.”  A small fraction of the parents referred to legal issues.  Only two parents referenced privacy.

What does all of this tell us?   Rather than providing parents and children with greater options for controlling the use of youth’s personal information, COPPA has actually encouraged the adoption of formal limits on children’s access to online services.  Those limits are rather meaningless, though.  As the authors explain, parents are “taking matters into their own hands to circumvent the restrictions . . . at the cost of their children’s privacy and at the risk of acting unethically and potentially in violation of the law.”  While providers and parents together circumvent COPPA’s requirements, the true losers are the parents who don’t get the chance to audit and delete their children’s data, as COPPA mandates when sites have actual knowledge that they are collecting and using data from kids under 13.  We are also seeing parents help their children engage in public deceit because they think their kids would benefit from online services.  This creates a serious parenting conflict among those who wish to encourage honesty. Because children pretend that they are far older than they actually are in online interactions, they also may open themselves up to other risks including stalking, something the statute sought to avoid.  In the end, COPPA has accomplished very little and risked a lot.  Kids under 13 do not end up with privacy protections afforded by COPPA and may even put themselves at risk.  Providers get around COPPA’s requirements with age cutoffs that are routinely violated.  Innovation for greater parental controls remains illusive.  As the study’s authors urge, policy-makers should “shift away from privacy regulation models that are based on age or other demographic categories and instead develop universal privacy protections for online users.”

More broadly, the study shows us that parents are involved in their kids’ social media use, whether it’s deceptive and in violation of ToS or not.  One might say that parents are increasingly taking over the role of Chief Family Privacy Officer, but, as we now appreciate, without COPPA’s protections.  What’s needed is far more education for parents and kids about the privacy risks associated with social media.  That’s of course true for the under 13 set and for those 13 and older. But since parents are helping expose their kids to social media services without COPPA’s protections, we need to work on education as early as elementary/lower school.  High school students, their parents, and educators often don’t appreciate the potential privacy risks of social media so one can imagine that kids in lower school, their parents, and teachers don’t as well.  Do students really want to spend hundreds of thousands of dollars on a college education and then end up unemployable due to something they posted on Facebook (which now is at greater risk for being indexed and searched online due to changes in Google’s algorithm)?  Do they know that colleges may someday look at their social media activity, to their detriment?  A new survey done by Kaplan Test Prep of admissions officers at 359 selective colleges and universities revealed that 24 percent of respondents reported using Facebook or other social networking pages to research an applicant, see here too.  All of this also reinforces the lessons of Ryan Calo’s important work on the flaws of current notice regimes and the potential for improvement through thoughtful design–parents neither get that ToS requirements are not just suggestions nor appreciate the privacy concerns animating those requirements.  Intermediaries can and should do better in that regard.  The study has contributed much to our appreciation of COPPA and the regulation of privacy online more generally.  I am hoping that legislators and regulators are paying attention.


Facebook, Bullet Not Dodged Yet (Part Deux)

In June, I blogged about the dreaded question (for parents of teenagers): “Mom, can I have a Facebook profile?”  At the time, we talked about its benefits and drawbacks.  On the one hand, it’s a gateway to socializing that she had been missing given her late birthday.  Different sports leagues had Facebook groups, perhaps she needed to join, and other activities would as well.  On the other hand, her privacy and reputation could be jeopardized, by her own hand or her “friends.”  Facebook’s privacy settings are notoriously whimsical, and more importantly as Steve Bellovin’s work shows notoriously misunderstood–setting up an account was indeed a game of chance, or as Bob Keller notes, like giving your kid a pipe of crystal meth.  We gave our thirteen year old kid the choice and told her to talk to us when she was ready to get started.  The summer came and went and all was quiet.  So now, a good five months later and a good five months wiser, my kid has decided that she wants to think about getting a Facebook page again.  And the conversation went something like this (she did all of the talking):  So I’m feeling excited about this.  Facebook would let me stay in touch with my sleep-away camp friends who live all over the place and I could friend kids that I meet from other schools in the area, at games, mixers, etc.  And I am jazzed about this new close friends feature that everyone’s been talking about.  This way I can share photographs only with my five best pals and I don’t have to worry.  (Pause).  But, I really want to friend the kids from camp and want them to see what I am up to, so this close friends feature may not work.  And what if those camp friends have weird friends or end up being strange themselves.  I can’t de-friend them, can I and still pal around at camp?  And I don’t want other people making judgments about me based on what those not-so-close friends are up to?  Will colleges see what I am doing, when it comes time?  And what if someone goes on my close friend’s computer and copy and pastes my silly remarks and it goes viral, like the Friday girl who ended up getting death threats and harassed.  Can I put up my favorite artists?  I definitely can say I like the Beatles and Elton John, but can I say Kesha?  Will people think I am appropriate if I put Kesha down or Katy Perry?  Some of their songs are, err, a little inappropriate.

After all of that, my kid said she needed to think about it, it all seemed so, well, complicated.  That seemed just the right word: complicated.  But the question seems even more tricky now than it did in June.  Who is she doing this for?  Taking cues from Erving Goffman, life is a performance.  Some of it is just for you–a way to develop oneself, experiment, play, and figure out who you are as much as who you are not.  Much of it is for others.  We perform different roles for the people in our lives: friends, parents, co-workers, coach, priest/imam/rabbi, acquaintances, and strangers.  Some performances are oppressive: we cover or pass as best we can in the face of stigma and prejudice.  And we perform at a time of extensive social and political surveillance.  We feel watched, and for good reason.  Companies give us social influence scores.  Employers, marketers, and businesses use those scores to benefit some, leaving others less favored and less fortunate.  Maybe we perform online for them?  Colleges look at social media profiles.  (danah boyd has a great piece about a question a college asked her about a student’s MySpace page, which seemingly contradicted his college essay.)  Do young people perform for them?  At the same time, government monitors our online presence, searching for threats to critical infrastructure and the like.  Government 2.0 social media sites may be keeping track of the stories we like, the friends we make, and pictures we post.  Who knows?  Agencies aren’t promising not to watch us, so maybe being careful is smart.  Are we performing for fusion centers and our government social media friends?  All of this watching brings to mind Julie Cohen’s book Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press, forthcoming 2011, see her talk here)–more on that in early 2012 in our online symposium on the book.  Navigating those questions every time one posts on Facebook is bewildering, especially because we can’t really control what happens to the information posted there.  A commentator on my previous post basically said that I had better get a grip on reality, that nothing I did or said could influence what she did and she would hate me anyway.  I guess we just fundamentally disagree.  Parenting is a huge responsibility, and lots of what my kid is mulling comes from long, long conversations we have had about being a responsible and smart digital citizen.  I am looking forward to talking it through again, once she has a better idea of what she wants to do.

P.S. Sorry about the light blogging, working on my first book on cyber mobs and hate (forthcoming Harvard University Press).

H/T Susan McCarty (who helped me find the db piece) , JJC


Hot Summer Flashes, Black Urban Mobs

Like Professor Zick, I am grateful for the invitation to share my view of the world with Concurring Opinions. I’d like to pick up where his post on strange expressive acts left off and, along the way, perhaps answer his question.

Flash mobs have been eliciting wide-eyed excitement for the better part of the past decade now. They were playful and glaringly pointless in their earliest manifestations. Mobbers back then were content with the playful performance art of the thing. Early proponents, at the same time, breathlessly lauded the flash mob “movement.”

MGK leads a movement (Youtube)

Today, the flash mob has matured into something much more complex than these early proponents prophesied. For one, they involve unsupported and disaffected young people of color in cities on the one hand and, on the other, anxious and unprepared law enforcement officials. A fateful mix.

In North London in early August, mobile online social networking and messaging probably helped outrage over the police shooting of a young black man morph into misanthropic madness.  Race-inflected flash mob mischief hit the U.S. this summer, too. Most major metropolitan newspapers and cable news channels this summer have run stories about young black people across the country using their idle time and fleet thumbs to organize shoplifting, beatings, and general indiscipline. This is not the first time the U.S. has seen the flash mob or something like it. (Remember the 2000 recount in Florida?) But the demographic and commercial politics of these events in particular ought to raise eyebrows.
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Comic-Con and Social Networks

Comic-Con is many things: awesome, hilarious, tragic, fun, hilarious, expensive and hilarious. Every July, San Diego becomes the homeof more than just balmy temperatures and the alt-rock tones of Jason Mraz; it hosts Comic-Con, an extraordinary pop culture event that brings together Trekkies and Chris Evans (the 2011 Captain America), Jedis and Ryan Kwanten (of True Blood) and more than a few people who have never picked up a comic book. I’ve joined the crowds the past two years because, well, it’s what you do in San Diego this weekend.

I have found that Comic-Con is a prime beneficiary of the decline of anonymity in online social networks.

Facebook may be leading the way in the fight against anonymity, but digital communities built around shared interest in science fiction are giving Mark Zuckerberg a run for his anti-anonymity money. To be sure, online games like World of Warcraft (WoW) allow you to create fantastic identities and personae for yourself, but I had a feeling they have become so much more than that. I did not know from experience: I enjoy Sci Fi and have my share of SyFy shows waiting on my DVR, but I’ve never played WoW. I was never a big gamer, even when “Where in the World is Carmen Sandiego” actually came on those large black floppy discs. So, I did what any nerd would do: I went to Comic-Con to test a theory.

I looked for groups where members were of similar ages (thus excluding families), but did not restrict myself to any particular age, race, gender or costume. I spoke to about 100 people. I wanted to know where they met their friends: online or in person? If online, on what platform? If not on a traditional social networking site like Facebook, where? Did they ever have pseudonyms or online identities that hid their real identities? If so, how and when did they come out of the closet to meet each other? In other words, I was trying to understand the role of online anonymity in social interaction among people at Comic-Con, many of whom are highly wired.

Of 107 people, 67 met the friends they were with at the time online. Notably, that is not the same as saying that nearly 2/3 of respondents came to Comic-Con with people they met online, but still, that is a staggering number! In any event, all of them eventually “met” or “found” each other on Facebook, but some initially linked up through sci-fi themed groups. But, since it all happened through Facebook, no one was anonymous. 

Not all relationships started on Facebook’s science fiction corner. A few knew each other as frequent commenters on, an all-things-Stargate fan website; some were WoW buddies who “never kept [themselves]hidden. He sounded cool, so whatever. It’s all on Facebook or MySpace anyway.” Another young man met his Jedi-clad friend “playing a few different online games. In the chat rooms, he mentioned he was from China and I thought that was so cool, especially since I live in Georgia.” He meant the country, not the state. The two struck up a friendship, became MySpace “friends,” then Facebook “friends” and then decided that they both should meet each others’ friends at Comic-Con. I also met a few young women who lamented that I wasn’t in costume and said that they too bonded online as three of the precious few females to comment about the show Warehouse 13 with any frequency. “As soon as I saw another girl, I immediately asked who she was and where she was. She then friended me on Facebook and I had a friend in a place called Riverside, California. I live in Oklahoma.”

Comic-Con attendees bear the brunt of a lot of stereotypes, none more common than of the adolescent, nonathletic boy who projects the kind of person he wants to be into his WoW elf. But, my initial research suggests that these men and women are not hiding behind the perceived anonymity that their online games could provide. Instead, they see their digital selves as extensions of their physical selves and their online identities as ways to help them meet people in real life. It is difficult for all of us to meet new people, so while an elf-self may be a foot in the door, the man behind the elf wants nothing more than to drop his mask and allow his digital community to supplement his physical community.

Admittedly, my tiny sample set answered informal questions in an unscientific survey. But, this concept — who we really are online and what are we really doing — has implications for the kind of policies websites, intermediaries and users would want to adopt to make the Internet a safe community for all. If we don’t want to be anonymous and have less and less need for it, why should we put safety and certain rights at risk in the name of protecting absolute anonymity? If even elf-selves are eschewing anonymity because of the community-building possibilities of Facebook and, perhaps anonymity is not part of the liberating potential of the Internet. Perhaps community-building is.


When We Say “Stop Cyberbullying,” What Are Our Goals?

Being laid up for a week with a nasty tonsil infection gave me the opportunity to catch up on some Sunday NY Times crosswords (Side Note: I refuse to accept that we’re now spelling the word “epilogue” as “epilog,” Mr. Will Shortz), some nerdy SciFi television and some law review articles on cyberharassment. Many esteemed colleagues, not to mention countless law students, are writing about this or related topics in some way. There is indeed much to talk about. But, what does not get as much play are the assumptions upon which much of the results-oriented scholarship is based.

The face-to-face and online harassment of young people, of any sexual orientation, of any gender, of any race, of any socio-economic status, is a bad thing. For the moment, let us put aside those who cling to the antiquated “this is all part of growing up” meme and assume that we all think harassing, attacking and emotionally abusing young people is bad. But, when we are asked to evaluate potential ameliorative responses — harsh punishments, tolerance education, increasing the role of government and a host of other possibilities — it is not enough to simply assume that a problem exists. In order to compare one response against another, we must first engage in a discussion about the values we’re trying to protect over and above solving the problem.

For example, let us assume for the moment that cyberharassment raises only two issues: the speech rights of harassers and the speech rights of victims. If we have to factor into any solution concerns about these stakeholders’ free speech, must we weigh them equally? No. But, then how do we weigh them? Does it matter whose rights? Sure. Those mean harassing kids don’t deserve their rights, only victims do. But, we all know what that kind of reasoning implies. Does it matter that in our example both the perpetrators and victims are students? Do minors even have speech rights (ask Justice Thomas for a resounding “Pfft. Surely you jest!“).

Do we have an adequate basis for finding an answer other than our own personal prejudices? I think we do, but our Internet speech law misses the mark. The legislative history of Section 230 of the Communications Decency Act (the immunity clause) and judicial opinions in cases like Reno v. ACLU, Ashcroft v. ACLU and Zeran v. AmericaOnline suggest that we determine what to value based on our vision of the Internet user as a modern day “pamphleteer” who can reach out “to a world-wide audience,” and do so “anonymous[ly].” A person like that in an environment like that would value individual autonomy and autonomy-based free speech values more than anything else, devaluing other First Amendment values. That vision of the Internet user and his online experience, however, is simply incorrect. Anonymity as a technical matter does not really exist and social networking platforms like Facebook are making anonymity a thing of the past. And, being a pamphleteer that can reach anyone is a little difficult when all content goes through and can be arranged and censored by intermediaries. This Internet user with this online experience would not only be concerned with individual autonomy above all other things. He would be concerned with his reputation, which can be irreparably damaged by online defamation and misbehavior. And, he would be concerned with getting his voice out there, especially since he is completely dependent upon third parties for access.


Scoring Ourselves to Economic Death

In The New York Times, Stephanie Rosenbloom asks readers to “imagine a world in which we are assigned a number that indicates how influential we are.”  That number would help determine our success at getting a job, hotel-room upgrade, break on a service, or free samples at the store.  As Rosenbloom tells us, imagine no more, companies, such as Klout, PeerIndex, and Twitter Grader, are mining our social media activities and assigning us influence scores.  Social scoring is based on our online social network activity, including the number of followers, friends, and the extent to which our online activity gets people moving.  If if you recommend a salon to your social network friends and they follow suit, your good word has two functions.  You’re doing a good thing for your friends and the salon (let’s hope), and now you’re doing good for you.  Because you have inspired people to take action, your influence score may rise.  In the present, people with high scores get preferential treatment by retailers.  More than 2,500 marketers are now using Klout’s data.  Audi will begin offering Facebook users promotions based on their Klout score.  The Las Vegas Palms Hotel and Casino is using Klout data to give highly rated guests an upgrade or tickets to a show.  In the future, those scores could be used by prospective employers, friends, and dates.

On the one hand, this market trend has something important to commend — its visibility.  Consumers can find out their influence scores and work to raise them.  By contrast, the impact of behavioral advertising is often hidden.  We are tracked and scored in databases and have no idea how it shakes out.  Joe Turow’s excellent book Niche Envy explains that consumers know very little about how their data personalizes market transactions.  Some individuals may end up as haves and others as have-nots, but neither group knows the extent of it.  As Turow explains, “our simple corner store is turning into a Marrakech bazaar–except that the merchant has been analyzing our diaries while we negotiate blindfolded, behind a curtain, through a translator.”  On the other hand, the information isn’t perfect and the algorithms secret so people may waste time doing things that they believe will raise their scores but don’t.  But that isn’t really troubling, unless every job or blog post had the effect we hoped it might.  What’s troubling is the trend’s implications for society and culture.  It seems old school to say that people blog, make friends, and engage in online chats to play, experiment, and create culture.  Now, they may feel pressured to do all of these things as a matter of economic necessity.  We may forgo experimentation for product endorsements, and idle chatter for better job prospects.  This makes our children’s choice to engage with social media seem like less of choice than a carefully cultivated necessity.  It also spells far more trouble for people who are already victimized, those who cyber mobs target with lies, threats, technical attacks, and privacy invasions.  They go offline or write under pseudonyms to protect themselves.  We now know that those choices (if we can call it that) cost more economically than they already do aside from the many other costs that my work discusses.  I imagine there’s more to this influence score story but I thought I’d share my initial take.


Another Day, Another Sexting Politician

My first reaction to Congressman Anthony Weiner’s admission was, “Oh… my… god!” My second reaction was to laugh — no matter how old we men get, we are all still 12 year old boys inside — and think of a post filled with double entendre. My third reaction was to wonder what this deeply unfortunate story means for tech law.

(NOTE: Any double entendre is purely unintentional! My mother reads these things!).

Brooklyn Congressman Anthony Weiner, a man I have had the opportunity to meet and even challenge to running race, first alleged that his Twitter account had been hacked, then maintained that he did not send the tweet but the image could have been of him and then, finally and mercifully, admitted that he sent the tweet and was carrying on “inappropriate relationships” with “several” women that he met online. Minority Leader Nancy Pelosi has called for an ethics investigation, conservative pundits are calling for the Congressman’s head and the rest of us are probably unmoved. We live in a world where Eric Massa, Christopher Smith, Mark Foley and so many other politicians are sexually crazed and hooked into a virtual world they either do not understand or are simply too arrogant to care about.

Weinergate has obvious lessons on the perils of throwing no caution to the wind regarding your Internet presence. It also reminds us that some men in power tend to lose their grip on reality. But, you do not have to be in Congress to be victimized by careless, stupid digital behavior.

If one divorcing spouse wanted to prove infidelity, perhaps as part of denying a 50/50 split of marital assets, text messages, emails and self-taken photographs on the other spouses cell phone, Twitter history and email inbox may be fair game. Just last year, a New York state judge in part used evidence of a man’s sexually charged conversations with various women online to deny him child custody. Notably, there had been no evidence that this man ever met any of these women in person or committed any sexual act. He messaged them online, adding jpegs of himself. Another judge in New Hampshire refused to use evidence of a divorcing spouse’s virtual interactions without evidence of an actual affair outside the digital universe. Family court judges have wide latitude in this area, but what are your thoughts about these cases?

Outside of the family law context, lewd online behavior can trigger morality clauses in contracts. Assuming for the moment that morality clauses — provisions in contracts that restrict certain elements of or behaviors in a party’s personal life — are even enforceable, sending a lewd photograph of yourself to “several” women with whom you are having “inappropriate relationship[s]” could be grounds for dismissal.

The operative question is whether evidence of digital hanky-panky, without even a hint of actual infidelity or inappropriateness in real life, is enough wrongdoing in these and other contexts. It seems incongruous to simultaneously recognize the pervasiveness and salience of digital interaction today and still diminish the importance of digital inappropriate behavior below face-to-face conduct. We are both virtual and physical beings now. Excusing a person’s bad conduct in the former simply because it happened through packets of 1’s and 0’s on the Internet seems antiquated and a recipe for a blind spot in social norms.


Bullet, So Not Dodged

The question that I had been dreading came at last: “Mom, can I have a Facebook page?”  My daughter provided a strong defense: she’s 13, so she meets Facebook’s Terms of Service age requirement; she’s nearly an adult in her religion’s eyes (her bat mitzvah is in a week); past practices proves she’s responsible; and well, she feels ready.  (And I just discovered, she’s done her homework: see this Yahoo Answers! “My mom won’t let me get a Facebook page, how do I convince her?” thread that I found on my computer).

Next came the conversation.  We talked about how increasingly social media activity is part of one’s life’s biography.  Anything said and done in social network spaces becomes part of who you are in our Information Age.  Colleges may ask for your Facebook password.  Over 70% of employers look at social media data for interviewing and hiring (and sad to say, the outcomes are grim for applicants who over 60% of the time don’t get the interview or job due to social network profiles).  It’s not just what you post that speaks volumes — your social network (friends and their friends) tells some of your story for you.  There goes any control that you thought you had.  FB users often wrestle with whether they should de-friend those whose online personas don’t match their sensibilities (or the way in which they want others to perceive them).  This means that users need to keep a careful eye on their friends’ profiles (as well as ever-changing privacy settings).

That’s a lot of responsibility.  Or, as Bill Keller of the New York Times put it when he allowed his 13-year old daughter to join Facebook, he felt “a little as if I had passed my child a pipe of crystal meth.”  Beyond the potential privacy and reputational concerns that accompany social media use, an online life has other potential perils, like overuse (and thus inattention to studies, face-to-face family time, etc.) that cyber-pessimists underscore (see Nicholas Carr’s The Shallows).  And bullying, serious harassment, bigotry increasingly appear in mainstream social media in ways that kids can’t necessarily avoid (my work explores those problems, see here, here, and here, as well as terrific work by guest bloggers Ari Waldman and Mary Anne Franks).  Of course, there’s also lots of positive stuff emerging from these networked spaces.  Social media outlets like Facebook allow us to enact our personalities.  They let us express ourselves in ever-changing and expanding ways.  FB and other outlets host civic engagement as Helen Norton and I have emphasized.

I wonder, too, if my kid has a meaningful choice.  Can digital natives really stay away from social media if all of their friends socialize there?  And will employers and colleges expect that applicants partake in these activities because everyone else does?  Someday, will resisting having a Facebook profile express something negative about you?  Will it signal that you’re not socially adjusted or successful?  As Scott Peppet underscores in his work, we may be forced to give up our privacy to show that we are indeed healthy, social, smart, and the like.  That’s a lot to process, right?  I’m going to chew on this a while.  Your thoughts are most welcome!


Cyberharassment’s Waterloo

I begin my Co-Op blogging stint with deep appreciation for Danielle Citron’s invitation and for the entire Co-Op community’s indulgence. I am honored to be a small part of a wonderful online community that brings out the best in us and, for that matter, Web 2.0. My name is Ari, I am a Legal Scholar Teaching Fellow (just like a VAP) at California Western School of Law and I am a student of the interplay among the First Amendment, the Internet and other modern technologies and their effects on minority populations, like gays and lesbians. I go on the professor job market this Fall. I have a weekly blog (every Wednesday) over at the country’s most popular gay news site, Towleroad, for those interested in perspectives on LGBT legal issues for a mass audience. I also have a healthy relationship with physical fitness and an unhealthy relationship with the store Jack Spade. If there’s counseling for the latter, I’d appreciate a reference. Kidding…

For my month of blogging, I hope to engage with you in a few conversations, mostly about cyberharassment and the First Amendment, and hopefully with a healthy dose of humor.

My current project is the third in a series of projects about cyberharassment. The previous articles, available here, address the effects of cyberharassment on LGBT youth, argue for the use of affirmative “soft power” rather than after-the-fact criminalization to solve the problem and create a new analytical framework for adjudicating student free speech defenses to a school’s authority to punish cyberaggressors. Now I am considering the effect that cyberharassment, particularly harassment of a minority group, has on civic participation and the realization of democratic values. I argue that Internet intermediaries self-regulation of their sites and services to filter out hate, sexual harassment and other aggression conforms with long-standing First Amendment values.

Like President Obama likes to say, let me be clear. I do not mean to suggest that the First Amendment applies as a limit on the activities of private actors like Facebook or MySpace or Google; rather, I think that contrary to libertarian First Amendment scholars, we can expect these online intermediaries to regulate content and say that doing so reflects the democratic interests that underly the First Amendment.

Here’s the draft argument in brief that I am currently working out: The view of the Internet as an unencumbered and unfettered town square deserving the same Rawlsian liberal approach to free speech is wrong. Every online interaction is governed by intermediaries of varying kinds, all of which are the filters through which our online speech makes it through to our online communities. Traditional intermediaries have the power to regulate content consistent with the First Amendment, especially when not doing so would interfere with their and their users’ ability to participate in civil society. We see this more Aristotelian/communitarian approach to First Amendment values in intermediary jurisprudence — from publishers to book stores, and from schools to workplaces. And, like schools and workplaces, which can regulate their members’ speech in order to fulfill the institutions’ purposes, so too can online intermediaries like Facebook.

This project is in the early stages, and I always welcome comments/suggestions/evisceration of the argument. More to come…

I look forward to continuing this and other discussions with this splendid community.