CCR Symposium: Late to the Party …

You may also like...

21 Responses

  1. Frank Pasquale says:

    I’m interested in the anonymity issue here, but I also feel like that horse is out of the barn. Lots of websites and ISPs hoard massive amounts of data on users, and market pressures will continually lead them to collect more data on individuals and establish ever larger and more integrated databases.

    So I see little harm (and a lot of good) in using this sort of data collection to promote proposals like Citron’s. It’s already being done. I guess some might say that if market pressures lead to massive monitoring & surveillance of individuals, that’s great, but as soon as the government starts to try to protect women, that’s tyranny. I don’t think that’s a very compelling distinction, especially given the extraordinary intertwining of corporate and state power in the US.

    I’ve offered a “friendly amendment” to her article that might ameliorate some of your concerns:

    http://www.concurringopinions.com/archives/2009/04/unaccountable_i.html

  2. Frank, I keep saying, we (meaning free-speech vs. Mackinnon-Dworkin) have been here. This is a FAQ:

    Free-Speecher: This is a shocking infringement of the First Amendment.

    Mackinnon-Dworkinist: But there’s this category (fighting words) and that category (copyright) where the First Amendment does not apply, so what’s the problem with having a whole new broad vague category, “anti-women-makes-unequal”?

    Again, could no better material be found than rerunning this old stuff with “cyber” tossed in? Is it really considered thoughtful?

  3. Matt says:

    David Post’s thoughts represent the strain of libertarian thought on the Internet that, to me, is the most indefensible. Somewhat informed now of the costs of such hands-off approaches and of a system that has unquestionably privileged the anonymous speech that has caused so much destruction and havoc to vulnerable populations, Post persists in privileging the interests of those perpetrating these harms (because the harms themselves are just “value judgments”) while disclaiming any responsibility for a sensible cure (because changing the rules of the game on anonymous speech would be the nuclear option on free expression).

    Danielle’s article did not sketch out a situation where the best response to the speech is more speech. On the contrary, that is the last thing I think she would support. The scope and scale of the harms inflicted by anonymous mobs and others on the Internet demand something more than a retreat into the libertarian fantasy of the First Amendment. As Justice Thomas recently said: “Today there is much focus on our rights. Indeed, I think there is a proliferation of rights. I am often surprised by the virtual nobility that seems to be accorded those with grievances. Shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?” (If only I quoted J. Thomas more often.) A Bill of Obligations and Responsibilities for online intermediaries should not be written off in the name of the First Amendment.

  4. Orin Kerr says:

    Frank writes:

    *********

    I guess some might say that if market pressures lead to massive monitoring & surveillance of individuals, that’s great, but as soon as the government starts to try to protect women, that’s tyranny.

    *********

    Frank, it sounds to me like you think some people who disagree with you are against protecting women. If I am reading you correctly, I hope you will name them.

  5. Venkat says:

    Haven’t followed much of this interesting looking episode, but one thought. The sensibilities of the academy when it comes to values of free expression are likely more nuanced (for better or worse) than those outside (non-lawyers/practicing lawyers). I wouldn’t say that the academy is necessarily more tolerant of free expression or that it better understands its value. If anything, in my anecdotal experience, non-lawyers sometimes seem to better appreciate the value of free expression (particularly it the post-internet era). Lawyers approach the issue with typical nuance, and this often makes them (us) more willing to tolerate restrictions that the average person may not be as excited about. Either way, on the issue of free expression, I’m not sure lawyers really drive the debate or influence public sentiment. This is neither here nor there, but I was struck by your disappointment that the public must value free expression less than the academy.

  6. Colin C says:

    I’ve been reading posts and comments re: Citron’s paper, and I tend to agree with David Post here.

    I assert that very little speech is unprotected under the First Amendment. Very little. And unless we define the forum as non-public or the speech in question as itself outside the scope the Amendment (as libelous or fighting words), little can (or should) be done to proscribe speech.

    We’ve yet to see, though, clear direction from the Court as the TYPE of forum the Internet is. The discussion, to me, must begin there. Yes, the forum is neither traditional nor designated, but it certainly is very public and difficult to contain. Kennedy’s analysis in Int’l Soc. for Krishna Consciousness v. Lee may provide a good starting point.

  7. Frank says:

    Orin: I do not think any of the contributors to this symposium are “against protecting women.” I do think that a key insight of her work is that Hugo Black-style free speech absolutism has a disparate impact on women, because so much harassment is directed against them.

    I believe Post and Froomkin have an unduly critical perspective on Citron’s proposal because its potential erosion of anonymity protections and free expression is so insignificant in comparison with other trends or doctrines they either fail to criticize or to recognize (see, e.g., the FEC v. McConnell majority’s nonconcern with McIntyre v Ohio)….or that they have an unduly utopian hope for anonymity online. That said, I think that Citron’s proposals can be refined in accordance with the suggestions I made in my first post for this symposium, and with this article:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=925736

    and that such revisions may well provide a better balance between anonymity and accountability.

    In the long run, I have a sense that national security and other pressures (along with cheaper data storage) are going to make everything online tracked. Some might be happy if that totally-tracked world only redounds to the benefit of extant law enforcement efforts and the companies that do the tracking. I see Citron’s proposal (particularly if amended by my suggested revisions) as one step toward making a cyberspace already corrosive of privacy a bit more responsive to the public interest.

  8. Frank says:

    Orin: I do not think any of the contributors to this symposium are “against protecting women.” I do think that a key insight of Citron’s work is that Hugo Black-style free speech absolutism has a disparate impact on women, because so much harassment is directed against them.

    I believe Post and Froomkin have an unduly critical perspective on Citron’s proposal because its potential erosion of anonymity protections and free expression is so insignificant in comparison with other trends or doctrines they either fail to criticize or to recognize (see, e.g., the FEC v. McConnell majority’s nonconcern with McIntyre v Ohio)….or that they have an unduly utopian hope for anonymity online. That said, I think that Citron’s proposals can be refined in accordance with the suggestions I made in my first post for this symposium, and with this article:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=925736

    and that such revisions may well provide a better balance between anonymity and accountability.

    In the long run, I have a sense that national security and other pressures (along with cheaper data storage) are going to make everything online tracked. Some might be happy if that totally-tracked world only redounds to the benefit of extant law enforcement efforts and the companies that do the tracking. I see Citron’s proposal (particularly if amended by my suggested revisions) as one step toward making a cyberspace already corrosive of privacy a bit more responsive to the public interest.

  9. Frank says:

    For Colin C: Check out Robert Post’s and Fred Schauer’s work on the boundaries of 1A protection. You might be surprised at how much speech gets left out. See, e.g.,

    Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, Harvard Law Review, 117 (2004), 1765-1809

    In my view, given the vagaries of defamation doctrine, a lot of the garbage Citron mentions could end up getting little protection, if any, given the right court.

  10. “key insight of Citron’s work is that Hugo Black-style free speech absolutism has a disparate impact on women …”

    Do you really count this as a “insight”? I would call it a “very old assertion”.

    “In the long run, I have a sense that national security …”

    Does the word “Clipper” mean anything to you?

  11. Jason Mazzone says:

    Frank,

    I think you need some more steps in your argument to explain why the fact that private entities are already collecting and analyzing data leads to the conclusion that when the -government- starts to do the same thing, the First Amendment problem is less salient. On a related matter, “intertwining of corporate and state power” makes the First Amendment more relevant, under state action rules, not less relevant. Isn’t that the sort of approach you yourself adopted in “Internet Nondiscrimination Principles”?

  12. perlhaqr says:

    Matt: The cipherpunks consider your efforts to destroy anonymity weak in the face of our mathematics. Goodbye.

  13. perlhaqr says:

    Matt: The cipherpunks consider your desire to destroy anonymity irrelevant in the face of our mathematics. The end.

  14. “Matt” writes:

    Somewhat informed now of the costs of such hands-off approaches and of a system that has unquestionably privileged the anonymous speech that has caused so much destruction and havoc to vulnerable populations,

    How are we “informed” now? I think I have spent enough pixels showing that Citron’s “facts” are either fabrications, misrepresentations, or mere fantasies. The harm that comes from online harassment affects everyone equally.

    Then Matt writes

    Post persists in privileging the interests of those perpetrating these harms (because the harms themselves are just “value judgments”) while disclaiming any responsibility for a sensible cure (because changing the rules of the game on anonymous speech would be the nuclear option on free expression).

    How about this… what “sensible cure” is there? Lets say for a moment that we repeal Section 230 altogether. That should make some alarmists giddy, but would it solve the problem? No, not one bit.

    What would happen then is exactly what has happened every time the federal government has made a stupid move when it comes to internet commerce. When 18 USC s 2257 passed, adult entertainment fled off shore, when the UGIEA passed, online gaming fled off shore. Of course, Costa Rica, the Netherlands and Antigua are delighted with our lack of intelligence, as it has proven to be a financial boon for them.

    So what happens if we repeal Section 230? Does harassment online go away? Does anonymous speech go away? No, it doesn’t. What happens is that the most motivated individuals, the most bitter and angry of online trolls, find sites that are hosted off-shore and simply post the material there.

    Sadly, it won’t just be AutoAdmit that moves itself to an offshore server with an offshore ccTLD. Other websites, like every single website with any user-generated content will also flee off shore. It is awfully easy for people who have never had a real job, let alone run a business, to say “it will be simple, just keep data records for us to inspect if someone posts something unkind.” But, if I’m running an online business and I can, with the flip of a switch, move offshore and avoid this absurd record keeping requirement, why wouldn’t I?

    The problem is not half as bad, nor at all as gender-based as Citron claims. The proposed cures are sheer foolishness that will accomplish nothing except toning down the more temperate trolls and giving greater power to the more shrill trolls.

    Next step, a symposium on whether the United States should erect a wall keeping out all content that hasn’t passed through some sensitivity filter? That would be the only way to make these proposals have any teeth at all. And then, we’re China (ok, we’re Singapore).

  15. Matt says:

    Marc,

    I will let Danielle defend herself (if she wishes) against your accusation that she is lying about and distorting facts.

    And with respect to your section 230 nonsense, where a site is hosted has no relevance to section 230 immunity. If section 230 were repealed, the owners and operators of any website could be held liable as publishers for speech by third parties on their sites. Does it matter if the owner is Jack Smith (resident of CA) or Jurgen Smith (resident of Germany)? A company based in Antigua? Or a company based in Texas? I don’t understand your point. Section 230 is much different than section 2257 or the UGIEA.

  16. Matt,

    I presume that you aren’t serious about whether the location of the service provider matters. Yes, it matters greatly if the owner is Jurgen Smith in Germany. Will a German court recognize an American defamation verdict? Unless you get a UN convention together so that every single country will recognize the liability of the service provider, a Section 230 repeal will do nothing.

    Let me make it simple for you:

    Here is how it would work for service providers.

    1) Right now, Craigslist and many other smaller user-generated content sites can operate very cheaply and very easily on a small crew.

    2) If we repeal Section 230, or add some “only-an-academic-could-love-it” record keeping regulation, the cost of operating in the USA goes up.

    3) If the cost of operating in the US goes up, then service providers go offshore or US operations shut down and offshore providers come in to fill their place in the market.

    4) Now, the service providers are outside the reach of U.S. jurisdiction, and perhaps immune under their country’s own laws.

    5) Result — less US entrepreneurial online businesses. More speech forums offshore where you can’t even use the existing laws against them (or if you could, the cost of doing so multiplies five-fold), and the ability to collect judgments becomes an illusion.

    Now, how it would affect trolls:

    1) Your average troll probably puts little effort into his or her trolling.

    2) Your extreme troll understands how to use Tor, proxies, and any other number of electronic tricks to mask his identity and location.

    3) If it becomes more risky to troll, the average trolls will break into two groups —

    a) those who think it isn’t worth it and who stop trolling at all (a plus).

    b) those who up the ante by using tricks a 12 year old could design to mask their identity. Shielded by absolute true anonymity, the trolling becomes worse.

    4) Despite the division of the average troll camp, the extreme trolls do not back off — and they become a greater part of the online uncivil chorus.

    Do you get my point now?

  17. Matt,

    I presume that you aren’t serious about whether the location of the service provider matters. Yes, it matters greatly if the owner is Jurgen Smith in Germany. Will a German court recognize an American defamation verdict? Unless you get a UN convention together so that every single country will recognize the liability of the service provider, a Section 230 repeal will do nothing.

    Let me make it simple for you:

    Here is how it would work for service providers.

    1) Right now, Craigslist and many other smaller user-generated content sites can operate very cheaply and very easily on a small crew.

    2) If we repeal Section 230, or add some “only-an-academic-could-love-it” record keeping regulation, the cost of operating in the USA goes up.

    3) If the cost of operating in the US goes up, then service providers go offshore or US operations shut down and offshore providers come in to fill their place in the market.

    4) Now, the service providers are outside the reach of U.S. jurisdiction, and perhaps immune under their country’s own laws.

    5) Result — less US entrepreneurial online businesses. More speech forums offshore where you can’t even use the existing laws against them (or if you could, the cost of doing so multiplies five-fold), and the ability to collect judgments becomes an illusion.

    Now, how it would affect trolls:

    1) Your average troll probably puts little effort into his or her trolling.

    2) Your extreme troll understands how to use Tor, proxies, and any other number of electronic tricks to mask his identity and location.

    3) If it becomes more risky to troll, the average trolls will break into two groups —

    a) those who think it isn’t worth it and who stop trolling at all (a plus).

    b) those who up the ante by using tricks a 12 year old could design to mask their identity. Shielded by absolute true anonymity, the trolling becomes worse.

    4) Despite the division of the average troll camp, the extreme trolls do not back off — and they become a greater part of the online uncivil chorus.

    Do you get my point now?

  18. MJR says:

    Matt,

    I presume that you aren’t serious about whether the location of the service provider matters. Yes, it matters greatly if the owner is Jurgen Smith in Germany. Will a German court recognize an American defamation verdict? Unless you get a UN convention together so that every single country will recognize the liability of the service provider, a Section 230 repeal will do nothing.

    Let me make it simple for you:

    Here is how it would work for service providers.

    1) Right now, Craigslist and many other smaller user-generated content sites can operate very cheaply and very easily on a small crew.

    2) If we repeal Section 230, or add some “only-an-academic-could-love-it” record keeping regulation, the cost of operating in the USA goes up.

    3) If the cost of operating in the US goes up, then service providers go offshore or US operations shut down and offshore providers come in to fill their place in the market.

    4) Now, the service providers are outside the reach of U.S. jurisdiction, and perhaps immune under their country’s own laws.

    5) Result — less US entrepreneurial online businesses. More speech forums offshore where you can’t even use the existing laws against them (or if you could, the cost of doing so multiplies five-fold), and the ability to collect judgments becomes an illusion.

    Now, how it would affect trolls:

    1) Your average troll probably puts little effort into his or her trolling.

    2) Your extreme troll understands how to use Tor, proxies, and any other number of electronic tricks to mask his identity and location.

    3) If it becomes more risky to troll, the average trolls will break into two groups —

    a) those who think it isn’t worth it and who stop trolling at all (a plus).

    b) those who up the ante by using tricks a 12 year old could design to mask their identity. Shielded by absolute true anonymity, the trolling becomes worse.

    4) Despite the division of the average troll camp, the extreme trolls do not back off — and they become a greater part of the online uncivil chorus.

    Do you get my point now?

  19. MJR says:

    Matt,

    I presume that you aren’t serious about whether the location of the service provider matters. Yes, it matters greatly if the owner is Jurgen Smith in Germany. Will a German court recognize an American defamation verdict? Unless you get a UN convention together so that every single country will recognize the liability of the service provider, a Section 230 repeal will do nothing.

    Let me make it simple for you:

    Here is how it would work for service providers.

    1) Right now, Craigslist and many other smaller user-generated content sites can operate very cheaply and very easily on a small crew.

    2) If we repeal Section 230, or add some “only-an-academic-could-love-it” record keeping regulation, the cost of operating in the USA goes up.

    3) If the cost of operating in the US goes up, then service providers go offshore or US operations shut down and offshore providers come in to fill their place in the market.

    4) Now, the service providers are outside the reach of U.S. jurisdiction, and perhaps immune under their country’s own laws.

    5) Result — less US entrepreneurial online businesses. More speech forums offshore where you can’t even use the existing laws against them (or if you could, the cost of doing so multiplies five-fold), and the ability to collect judgments becomes an illusion.

    Now, how it would affect trolls:

    1) Your average troll probably puts little effort into his or her trolling.

    2) Your extreme troll understands how to use Tor, proxies, and any other number of electronic tricks to mask his identity and location.

    3) If it becomes more risky to troll, the average trolls will break into two groups —

    a) those who think it isn’t worth it and who stop trolling at all (a plus).

    b) those who up the ante by using tricks a 12 year old could design to mask their identity. Shielded by absolute true anonymity, the trolling becomes worse.

    4) Despite the division of the average troll camp, the extreme trolls do not back off — and they become a greater part of the online uncivil chorus.

    Do you get my point now?

  20. Ooops… I’m VERY sorry about the multiple posts. Please delete the extras (and this, if you like)

  21. Danielle Citron says:

    Matt,

    I will happily explain how and why current research demonstrates that cyber harassment is indeed a gendered phenomenon. 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, the 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