CCR: Coda
posted by Danielle Citron
In writing Cyber Civil Rights, I hoped to begin a conversation about the relationship between cyber civil rights and cyber civil liberties, including the ways in which safeguarding civil rights online reinforces free speech values. Thanks to distinguished participants Ann Bartow, Daithí Mac Síthigh, David Fagundes, Michael Froomkin, Nathaniel Gleicher, James Grimmelmann, Orin Kerr, Nancy Kim, Helen Norton, David Robinson, Dan Solove, and Kaimi Wenger and my co-bloggers Dave Hoffman, Frank Pasquale, and Deven Desai (who came up with the idea for the symposium, wrote superb posts, and organized the event) that conversation happened in a rich and thought-provoking way, one that will have a lasting impact on my work on the protection of civil rights online.
Some of the discussion highlighted for me the wisdom of Dave Hoffman’s insights about cultural cognition: our cultural values have much to do with how we view the burdens and benefits of a civil rights agenda online. To be sure, a cyber civil rights agenda has to wrestle with our diverging twenty-first century values if it is to have any efficacy. At the same time, we should not disconnect from, or forget, the lessons of our not-so-distant past. Kierkegaard noted that because there is nothing to see in the future except something from the past, we must be mindful about what part of the past we use in imagining in the future. In the late 1970s, society made a judgment that threats of sexual violence and comments reducing women to sexual objects in the workplace constituted a pernicious form of sex discrimination, one that unacceptably interfered with women’s employment opportunities in a manner that the First Amendment does not privilege. That normative and doctrinal judgment remains true today and it has much to teach us about the harassment of vulnerable individuals online, especially women. Just as the harassment of female employees with pornographic images in the workplace and sexual taunts inflicts serious economic and social costs, so, too, does the flooding of a female blogger’s income-generating site with pornography (and/or rape threats) and shutting the site down with denial of service attacks. This, I believe, must be part of our thinking about the problem of cyber harassment of individuals from traditionally subordinated groups.
The probing discussion of website operators’ standard of care and anonymity were illuminating and important as were the critiques of the expressive value that law can play in combating cyber gender harassment, the subject of my current work. These insights will no doubt have an indelible mark on my future endeavors. And I also wanted to thank those who gave me feedback via email and comments: it was open-source academics at its best.
April 17, 2009 at 3:25 pm
Posted in: Cyber Civil Rights
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Responses (14)
Orin Kerr - April 17, 2009 at 11:02 pm
Thanks for the interesting exchange, everyone.
Orin Kerr - April 17, 2009 at 11:07 pm
Oh, and here’s a particularly timely story:
http://www.law.com/jsp/article.jsp?id=1202430012681
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Tormented by Cyberstalker, Ropes Partner Drafts New Legislation on Online Libel
Brian Baxter
The American Lawyer
April 20, 2009
Ropes & Gray partner Joan Lukey is no stranger to litigation battles.
As one of The American Lawyer’s Star Laterals of 2008 — she joined Ropes in June after 34 years at crosstown Boston rival Wilmer Cutler Pickering Hale and Dorr — Lukey has tried more than 70 cases and become a renowned First Amendment lawyer.
But now she is trying to silence a cyberstalker, Leslie Sachs. He began targeting her after she obtained a court order against him on behalf of star client and noted crime novelist Patricia Cornwell in 2007.
After threats on Lukey’s life and others at her firm, the 59-year-old litigator is now drafting federal legislation to go after those who make libelous statements on the Internet.
“All of this relates to the fact that the Internet leads people to function anonymously, which in turn means there’s no accountability because you can’t find them,” Lukey says. “That’s what this is about. We just want to stop Leslie Sachs.”
. . . .
Seth Finkelstein - April 18, 2009 at 9:31 am
If you’re really interested in “conversation”, please consider the many objections which have been raised¸ and the negative experiences which have been had, with such a framework.
What tends to happen is that the Old-Boy’s-Network cuts a deal with the Mackinnon-Dworkinites. None of the real Old-Boy’s-Network abusers gets touched, since they have power within the institution. But the Mackinnon-Dworkinites get to make powerless people’s lives miserable about very minor matters (which lets them play to their ideological constituency). It’s a worst of both worlds result.
Matt - April 18, 2009 at 4:01 pm
Orin: Leaving aside the legal/policy merits of what Lukey is doing, do you believe that she would have experienced the same degree of fear and trepidation if she were male? Your previous post mentions the email threat you received when you were in Berkeley; while I don’t doubt that males also receive violent threats, they don’t typically vary their routine and experience fear to the same degree as when females do. Did you find your time in Berkley to be a “nightmare”? Were you constantly looking over your shoulder when you were alone at night? I think the degree of harm differs considerably depending on whether the victim is male or female (and Danielle goes into the effects from such harm on females at length). It is important to note this when judging whether such speech merits a “civil rights” type response.
Orin Kerr - April 19, 2009 at 1:16 am
Matt,
A question like that would have to be answered with probabilities, as you are asking me to guess at the reaction of an imaginary person in a hypothetical But I would say it is a very very low probability. Don’t you think? As any student of criminal law knows, criminal law is often strongly gendered: It would be an odd (if not stunning) departure from the traditional approach of criminal law for the law to be blind to those realities.
Of course, the important question is why the answer to your question matters. Outside the civil rights context, Lukey’s gender is clearly relevant to whether the conduct would trigger threat and harassment statutes, both civilly and criminally. Most of these statutes ultimately rely on whether a reasonable person would feel in fear, and it is obvious that this standard would factor in gender.
If I understand you correctly, your assumption is that this isn’t enough, however: There needs to be more than liability under tort and criminal law, and further, that extra liability has to be based on civil rights principles rather than other principles of liability. That’s the step I’m not certain about — why traditional criminal law and tort law aren’t enough, and why new principles of law to respond to new social problems caused by technology should be framed as civil rights issues rather than straightforward responses to important and troublesome social harms.
JP - April 19, 2009 at 12:08 pm
Orin, I think the answer to your last question is statutory attorneys’ fees. I believe this is acknowledged by both sides to the debate, though there is obviously much dispute as to whether the availability of such fees is a pro or con.
Orin Kerr - April 19, 2009 at 12:24 pm
JP,
Statutory attorneys’ fees are also provided outside the civil rights context, however (see, e.g., the wiretap act).
JP - April 19, 2009 at 4:32 pm
True. I guess my response was to the first part of your question. As to the second part (why civil right?), I don’t know, and I don’t think anyone posting or commenting on this symposium has offered a compelling answer, despite your persistence.
Matt - April 19, 2009 at 4:51 pm
Orin,
Of course, I recognize your fundamental disagreement with many of the symposiasts about whether a civil rights framework really adds anything. I am curious, though, after reading Danielle’s article, whether you believe that traditional tort and criminal law is working as it should in combating cyber-harassment and cyber-threats.
Michael Froomkin - April 19, 2009 at 9:28 pm
It seems to me that the timely story is this one: Officials Say U.S. Wiretaps Exceeded Law…
Orin Kerr - April 19, 2009 at 10:24 pm
Matt,
If you read over my posts, you’ll see that I am in fact quite open to options beyond traditional criminal law and tort law. See, for example, my proposal from 2007 that I blogged about here:
http://www.concurringopinions.com/archives/2009/04/ccr_symposium_w_1.html
Also, I would note that the concept of “traditional criminal law” is sort of uncertain here, given that these issues have been subject to considerable legislative attention. For example, in 1999, the Justice Department released a report, 1999 REPORT ON CYBERSTALKING: A NEW CHALLENGE FOR LAW ENFORCEMENT AND INDUSTRY, available at http://www.usdoj.gov/criminal/cybercrime/cyberstalking.htm, which was in part on these issues and which lead to a considerable expansion of the the federal interstate harassment statute, sometimes known as the federal cyberstalking statute. Would you include that report and amended statute as “traditional criminal law”?
Jon Garfunkel - April 20, 2009 at 2:08 am
Danielle, Frank et al — thanks for organizing this online symposium. I am just catching up on the comments now.
Though I must point out, once again, that the generic weblog format is of little organizational help. Can you amend this post with links to all of the CCR entries?
Also, in the spirit of Twitter, would it be beneficial for each participant to give a one-sentence summary of their takeaway from the discussion?
Jon
Marc J. Randazza - April 20, 2009 at 10:08 am
Seth Finkelstein wrote:
If you’re really interested in “conversation”, please consider the many objections which have been raised¸ and the negative experiences which have been had, with such a framework.
What tends to happen is that the Old-Boy’s-Network cuts a deal with the Mackinnon-Dworkinites. None of the real Old-Boy’s-Network abusers gets touched, since they have power within the institution. But the Mackinnon-Dworkinites get to make powerless people’s lives miserable about very minor matters (which lets them play to their ideological constituency). It’s a worst of both worlds result.
Naturally, the comment got ignored because it is blasphemy. I’d just like to say that I agree wholeheartedly and my only regret is that I’m not eloquent enough to have put it so simply.
Danielle Citron - April 27, 2009 at 12:33 pm
I write this comment to respond to the erroneous and reputation harming suggestion that I misrepresented research on the gendered nature of cyber harassment and why I have not written until now.
The non-profit organization Working to Halt Online Abuse (WHOA) has compiled statistics about individuals harassed online. In 2007, 61 percent of the individuals reporting online abuse were female while 21 percent were male. Similarly, in 2006, 70 percent of its online harassment complainants identified themselves as women. Overall, from 2000 to 2007, 72.5 percent of the 2,285 individuals reporting cyber harassment were female and 22 percent were male. Half of the victims were between the ages of 18 and 40 and reportedly had no relationship with their attackers. Similarly, the Stalking Resource Center, a branch of the National Center for Victims of Crimes, reports that approximately 60 percent of online harassment cases involve male attackers and female targets.
Academic research supports this statistical evidence. The University of Maryland’s Electrical and Computer Department recently studied the threat of attacks associated with the chat medium IRC. Researchers found that users with female names received on average 100 “malicious private messages,” which the study explicitly defined as “sexually explicit or threatening language,” whereas users with male names received only 3.7. Indeed, contrary to what has been misstated, the study explicitly explained that the “experiment show[ed] that the user gender has a significant impact on one component of the attack thread (i.e., the number of malicious private messages received for which the female bots received more than 25 times more private messages than the male bots)” and “no significant impact on the other kinds of attacks, such as attempts to send files to users and links sent to users.” The study explained that attacks came from human chat-users who selected their targets, not automated scripts programmed to send attacks to everyone on the channel, and that “male human users specifically targeted female users.”
I am extensively quoting the study to make clear that my analysis is not my interpretation of the study but instead that of its authors.
And however one line of my BU article may be construed by others (i.e., the comment he deserves a Congressional medal), my editors, myself, Nathaniel Gleicher and others have read it as I have. But no matter, my work does not include lies (the suggestion that I am deceiving others is indeed defamatory as is the suggestion that the explanation of the Maryland study is) but instead includes exact quotes of the countless postings on AutoAdmit. And the various stories of the attacks on women are exact quotes as well and cannot be disputed.
I hesistated speaking to this issue as I fear cyber harassment, which I have clearly experienced personally and indeed as Dave notes in a prior comment on Prawfs has included menacing physical harm.
Danielle Citron
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