CCR Symposium: In Defense of Self-Defense
posted by David Fagundes
As several other symposium participants have pointed out, Danielle Citron’s proposal seeks to enhance some speech by suppressing other speech. A different approach to cyber sex harassment would be to combat the harassing conduct not with legal sanctions, but by enabling and encouraging counter-speech that exposes and criticizes both harassers and their behavior.
In CCR (at 104-06), Citron considers and dismisses the counter-speech approach. The problems that she identifies with this strategy are convincing, but her discussion fails to give full consideration to the various ways that counter-speech may be promising tool to counter cyber sex harassment. I articulate three such reasons below the fold.
First, encouraging counter-speech may (as Citron points out) sustain the life of the attacks, but this might have a positive outcome, because it would expose the harassing conduct to more eyeballs and reveal how concerning a problem it is. My sense is that people need to see the kinds of attacks Citron talks about in detail, especially the 99.9% of the male population who will likely never make or receive such an attack. The reason is that once you do see this kind of stuff, you’ll find it pretty hard to dismiss the issue (I know because someone on the cyberprof listserv sent around a link to some really gruesome misogynistic material that had been aimed at them online, and when I looked at it I realized I had no idea how bad some of this stuff was). Starting a critical public dialogue that shows exactly what is being said online would do much to make people take this problem seriously, pre-empting arguments that the law is overreacting to something trivial. Opponents of Citron’s approach should like this, too; if they’re right that her article overstates the harm of this material, then let’s get it out there and let the public decide. I have a very strong suspicion that social norms would quickly coalesce around the conclusion that this is not a trivial concern.
Second, counter-speech is promising because speech itself can be empowering. Having the law come to your aid is helpful and often necessary, but the value added by exercising self-help in any situation is that it makes the individual feel capable of taking matters into their own hands. Plus, as Citron points out, many of the victims of these attacks feel powerless and defeated by their experience. If there were venues in which recipients of attacks could expose attackers and subject them to the shame they merit, that would likely be a satisfying experience that would leave victims feeling better about the end result.
Finally, I suspect that counter-speech would be effective against the kind of people who practice cyber sex harassment. From what I’ve read in Citron’s work and James Grimmelmann’s “lulz mob” post from yesterday, harassers are, more or less, mean-spirited cowards. They remind me of the people in LA who are boiling cauldrons of rage and aggression—as long as they’re driving along the freeway, safe within the confines of their car, and their targets have no way to respond to them. No one with real character or courage would spend any time at a keyboard anonymously harassing a someone else, and I suspect that anyone who does this would melt if confronted by public shaming (whatever the cyberspace equivalent of that may be).
These two approaches are not, of course, mutually exclusive. The law could take a hard-line against cyber sex harassment and there could also be a variety of online means for victims of attacks to engage in counter-speech to call out and shame attackers. My point in this post has simply been that Citron’s dismissal of counter-speech effectively raises problems with a self-help strategy, but does so at the expense of overlooking its promise.
April 16, 2009 at 1:16 am
Posted in: Cyber Civil Rights
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Responses (7)
Marc J. Randazza - April 16, 2009 at 7:43 am
Your defense of self defense is worthy of praise, and your characterization of those who launch anonymous attacks seems quite accurate.
The fact is, there are private ways to engage in self-defense. Consider the story of the “Patent Troll Tracker” blog.
http://randazza.wordpress.com/2008/01/28/bring-me-the-head-of-troll-tracker/
In that case, Raymond Niro, an Illinois lawyer who was criticized by the Patent Troll Tracker offered a $10,000 bounty to anyone who could provide him with the PTT’s identity. And it worked.
I believe that you have a First Amendment right to speak anonymously. I’ve seen any number of unethical abuses of the legal system – engineered to reveal the identity of an anonymous speaker. I’ve seen even more that were plain stupid.
Mr. Niro didn’t send a bogus DMCA notice. He didn’t file a specious copyright claim in order to pull a garden variety defamation suit into federal court. He didn’t try and overcome Section 230. He probably calculated the amount of money and time such an effort would take and simply privatized the investigation.
Of course this anecdote doesn’t make for a perfect rule.
1) The PTT seemed to be offering legitimate criticism and probably had every right to remain anonymous. Accordingly, this “bounty model,” seems to have been used to stifle legitimate criticism. Nevertheless, as we have seen with the DMCA notice and takedown procedure and the raft of frivolous defamation suits that float down the river every day, all methods are open to abuse. The “bounty model” exists with or without government intervention, therefore we just may have to live with the fact that it *can* be abused.
2) Mr. Niro was in a bit of a privileged position: He had $10,000 to spend on such an effort. However, your garden variety victim of a cyber mob very well might not have that kind of money lying around. But, lets refer back to your poetic and accurate description of the anonymous attacker. I would venture to guess that the marketplace would place a lower value on the head of “lonelyvirgin” (of AutoAdmit infamy) than it placed on the head of PTT.
But, there are other reasons that the market could be harnessed to expose those who deserve to be exposed and unmasked.
Any legal remedies that might be available under a scaled-back Section 230 would still cost something. Plaintiff’s side personal injury and medical malpractice lawyers routinely lay out huge costs pre-suit. So, if a plaintiff’s lawyer were called in to go after an anonymous attacker, the cost of the “outing bounty” would be figured in to the calculus of whether the claim would be worth taking on contingency or on a fee-basis. If a claim was of questionable validity, less lawyers would be willing to put up the bounty, or they would be willing to put up less of a bounty. If the victim was truly feeling economic harm, placing at least some of the burden on the victim (at least initially) would be far more preferable to placing an anchor on the neck of the entire internet in order to root out a few bad actors.
3) What if nobody knows the identity of the attacker? This is a problem. If you put up $1 million, it doesn’t help much if nobody knows who the person is. However, it is very rare that you’ll find someone who doesn’t screw up. The traditional “detective work” that goes into tracking down an anonymous speaker usually unmasks the person. Lets say that there is a 40% exposure rate (I’m pulling that number out of my ass, so someone please correct me with more accurate data, if there is any) just on a technological front, now lets add the percentage of those who get exposed by people who want the bounty…. I think we can get to a reasonable exposure level this way.
The fact is, if we repeal Section 230 altogether and require “digital fingerprints” on every communication, it will still be very easy to circumvent any legal regime. Proxy servers, assistants in other countries, unlocked wireless networks, and any number of black-hat-hacker tricks can make it seem like an innocent party wrote an attack. There will always be a way… but capitalizing on the strength of the market to out a poster will not be as susceptible to technological sleight of hand.
4) What if the “outer” lies and names an innocent person? Easy. Before they get the bounty, they swear under penalty of perjury (and perhaps under some kind of liquidated damages provision) that they aren’t lying. They don’t get the coin until the legal process confirms the identity of the attacker.
5) But what if a lawyer wont put up the money and the victim is poor? Then I would guess that the case has no value and it shouldn’t be brought in the first place. However, I recognize that there very well may be cases that “fall through the cracks.” Then, the “victim” could (and should) solicit law professors and others who might be now calling for an end to Section 230. I’m not trying to be glib about this — but if you are prepared to throw the brakes on the American internet industry all in the name of accountability, wouldn’t you toss in $100 of your own money for someone who was a “victim of a vicious attack?” You would (I would). However, we would certainly vet the claim to make sure that the person wasn’t being hypersensitive or merely trying to silence a critic. Passing the hat is a viable alternative.
The bounty model works. It is proven. The bounty model also does nothing to stifle the marketplace of ideas. The bounty model does not require that we invent new torts, nor does it require us to use divisive rhetoric. The bounty model already has built in checks and balances. While it is susceptible to abuse, it is no more susceptible to abuse than any other proposed scheme, and I would say that market forces make it less so.
Seth Finkelstein - April 16, 2009 at 8:01 am
The problem, which is common in this sort of analysis, is that it mixes in some very different issues under the general term “cyber sex harassment”. Again, this sort of confusion has been analyzed for decades, it’s not an accident. Asking for sex, badly, is not the same as threatening to rape. Some issues have fairly straightforward “more speech” solutions. Some don’t. Some are pure sensationalism of stuff which is bad, but trying to make it illegal would be worse. It’s like talking about “illness”, meaning everything from the common cold to diabetes to cancer.
Marc J. Randazza - April 16, 2009 at 8:11 am
Seth,
True, but wouldn’t my market-driven identity exposure plan function to filter out the ludicrous claims but leave the real threats on the table?
For example, if someone cries “cyber rape!” because they get a message that says “hey baby, wanna cyber?” nobody would put up the bounty money. But, if someone posts “I am going to rape Sally tonight,” then many good people (I would imagine you included) would gladly toss in a few bucks if the hat were passed our way.
Seth Finkelstein - April 16, 2009 at 8:41 am
No, “market-driven” is an anathema to what we should be striving for in terms of justice. We already have a quasi-market-driven system of “self-help”, where popular and well-connected people get their grievances to become cause-celebre, and unpopular or unconnected people are told to shut up and stop whining.
What you’re proposing is just a fantasy, which is already disproved. It’s a rhetorical device, surely good people would not tolerate true injustice – yes, they would, for many reasons, that’s why building a legal system is very hard.
Marc J. Randazza - April 16, 2009 at 8:56 am
Okay, so what is the solution?
You must admit that there ARE people who make anonymous hit-and-run attacks who should be held responsible.
Is the solution:
1) Tell everyone to shut up and stop whining?
2) Get rid of Section 230?
3) Get rid of the ability to post anonymously?
4) Let the market do the job?
We already have the ability to do #4, it just seems that many liberal academics want to be lazy about it and have the government do the job for them. Sacrifice the rights of all for the possible hurt feelings of a few.
How is the bounty model disproved? It seems to have worked for the select few who have tried it.
Seth Finkelstein - April 16, 2009 at 9:09 am
If I knew what the solution was, I wouldn’t be messing around in comments on an obscure (sorry) blog. I have some views which tend to a general power analysis, but that’s not exactly novel, and far more prominent people than me have argued in that direction and been ignored.
I do think that defamation notice-and-takedown, and right-of-reply, are overall good directions to deal with certain problems (without endorsing anything specific in this comment box – I know what happens: there’s this problem, and that problem, and what about some other case …)
You seem to have missed the core of my rebuttal – BY DEFINITION, “the market” is the wrong answer for any justice question, unless you believe that the amount of justice one should be able to get is a direct function of how much money one has or can raise. Some people do believe that, that money is the only worthwhile social arbitrator. By generally, connecting money and justice is viewed as a bug, not a feature.
Marc J. Randazza - April 16, 2009 at 9:32 am
You’re right, I did miss the point. Thanks for clarifying it.
I don’t believe that money is the only, nor even usually a preferable, social arbitrator. However, I do believe that in this type of circumstance, it is the solution that is least prone to abuse.
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