Author: Danielle Citron

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Fourth Annual Book Review Issue of the Tulsa Law Review Available Online

Professor Ken Kersch and Professor Linda McClain recently announced that the fourth annual book review issue of the Tulsa Law Review (Volume 49, No. 2, Winter 2013) is now in print and available online. At the Tulsa Law Review’s website, you will find a Table of Contents, the List of Books Reviewed, and PDFs of all of the review essays. As the Preface to the issue indicates, at Professor Sandy Levinson’s and Professor Mark Graber’s request, Profs. Kersch and McClain assumed the co-editorship of the annual book review issue over a year ago, with the aim of building on their strong foundation in launching the series and publishing three superb issues. Volume 49 includes twenty-five essays by law professors, political scientists, historians, and sociologists reviewing forty-nine significant law-related books. The issue carries forward an interdisciplinary conversation that demonstrates the special value of the book review essay as a uniquely informative form of scholarship. Those interested in ordering a print copy should contact the new Editor-in-Chief, Jacob Damrill, at jacob-damrill@utulsa.edu

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Clinical Law Review Workshop – Registration deadline is June 30, 2014

The Clinical Law Review will hold its next Clinical Writers’ Workshop on Saturday, September 27, 2014, at NYU Law School.

The Workshop will provide an opportunity for clinical teachers who are writing about any subject (clinical pedagogy, substantive law, interdisciplinary analysis, empirical work, etc.) to meet with other clinicians writing on related topics to discuss their works-in-progress and brainstorm ideas for further development of their articles. Attendees will meet in small groups organized, to the extent possible, by the subject matter in which they are writing. Each group will “workshop” the draft of each member of the group.

Participation in the Workshop requires the submission of a paper because the workshop takes the form of small group sessions in which all members of the group comment on each other’s manuscripts. By June 30, all applicants will need to submit a mini-draft or prospectus, 3-5 pages in length, of the article they intend to present at the workshopFull drafts of the articles will be due by September 1, 2014.

As in the previous Clinical Law Review Workshops, participants will not have to pay an admission or registration fee but participants will have to arrange and pay for their own travel and lodging. To assist those who wish to participate but who need assistance for travel and lodging, NYU Law School has committed to provide 10 scholarships of up to $750 per person to help pay for travel and lodging. The scholarships are designed for those clinical faculty who receive little or no travel support from their law schools and who otherwise would not be able to attend this conference without scholarship support. Applicants for scholarships will be asked to submit, with their 3-5 page prospectus, by June 30, a proposed budget for travel and lodging and a brief statement of why the scholarship would be helpful in supporting their attendance at this conference.  The Board will review all scholarship applications and issue decisions about scholarships in early July.The scholarships are conditioned upon recipients’ meeting all requirements for workshop participation, including timely submission of drafts.

Information about the Workshop – including the Registration form, scholarship application form, and information for reserving hotel rooms – is available on-line at:

http://www.law.nyu.edu/journals/clinicallawreview/clinical-writers-workshop

If you have any comments or suggestions you would like to send us, we would be very happy to hear from you. Comments and suggestions should be sent to Randy Hertz at randy.hertz@nyu.edu.

— The Board of Editors of the Clinical Law Review

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Welcoming Back Jeffrey Kahn to the Blog

This month, we are lucky to have Professor Jeffrey Kahn back with us for another guest blogging stint. Professor Kahn joined the SMU Law faculty in Fall 2006.  He teaches and writes on American constitutional law, Russian law, human rights, and counterterrorism.  In 2007-2008, he received the Maguire Teaching Fellow Award from the Cary M. Maguire Center for Ethics and Public Responsibility at SMU for his seminar, “Perspectives on Counterterrorism.”  In 2008-2009, he was named a Colin Powell Fellow of the John Goodwin Tower Center for Political Studies. In 2010, he received SMU’s Outstanding Faculty Award, a university-wide award given each year to a junior, tenurefaculty-kahn-track faculty member for excellence in teaching, curricular development, and scholarship.  In 2011, the year he was tenured and promoted to associate professor, he received the Law School’s Excellence in Teaching Award.

His latest research on U.S. legal topics focuses on the right to travel and national security law.  His most recent book, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists(University of Michigan Press, 2013), critically examines the U.S. Government’s No Fly List.  Among other publications, his articles have appeared in the UCLA Law ReviewMichigan Law Review, and the peer-reviewed Journal of National Security Law and Policy.

Professor Kahn has been incredibly busy since his last guest visit. This past fall, he was the third O’Brien Fellow-in-Residence at the Centre for Human Rights and Legal Pluralism at McGill University’s Faculty of Law.  This semester, he is a Visiting Professor at Washington & Lee School of Law. Professor Kahn recently served as a testifying expert witness in the first federal trial of the constitutionality of the No Fly List and federal watchlist system.  The plaintiff, Rahinah Ibrahim, won the bench trial and the Justice Department decided not to appeal (having lost two prior appeals in the case to the Ninth Circuit). The paperback edition of his book on terrorist watchlists, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists(University of Michigan Press, 2013), is scheduled for release later this spring.

Professor Kahn’s latest work is a contribution forthcoming in a title in Springer’s Ius Gentium series edited by ABA President James Silkenat.  The essay evaluates Russian rule-of-law shortcomings through the lens of my experience as one of the experts selected by former Russian Constitutional Court Justice Tamara Morshchakova to contribute a report on the conviction of Russian oil oligarch Mikhail Khodorkovsky, who was recently released.

 

 

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Recommended Reading: Symposium on Minds, Brains & the Law

On his Neuroethics & Law Blog, Adam Kolber is hosting a book symposium from March 24-April 4 on Michael Pardo and Dennis Patterson’s Minds, Brains & the Law: Conceptual Foundations of Law & Neuroscience. His guest bloggers, who include Concurring Opinions alum (the brilliant) Amanda Pustilnik, will discuss the the fascinating issues Pardo & Patterson raise. Read Amanda’s post Norms & Neurons here.

 

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Welcoming Back Guest Blogger Ryan Calo!

I’m thrilled to welcome back Professor Ryan Calo whose work on robotics, information privacy, and cyber law is as creative asCaloRyan it is cutting-edge. Professor Calo is an Assistant Professor of Law at the University of Washington and the inaugural faculty director of the Tech Policy Lab, an interdisciplinary research group that bridges the School of Law, Information School, and Computer Science and Engineering. He is also an affiliate scholar at the Stanford Law School Center for Internet and Society. Presentations over the last year include testifying before the United States Senate on the domestic use of drones and participating in the Federal Trade Commission workshop on the Internet of Things. His current project seeks to bridge cyberlaw with robotics.

His most recent publications include:

Ryan Calo, Digital Market Manipulation, 82 Geo. Wash. L. Rev. (forthcoming 2014)

Ryan Calo, Code, Nudge, or Notice?, 99 Iowa L. Rev. 773 (2014)

Welcome back, Ryan!

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Dispatches from Durham: Sexual Double Standards, Victim Blaming, and Online Abuse

In a series of recent pieces, the Duke Chronicle documented the experience of female students who were shamed for their expressing their sexuality. In one case, a young woman sent an e-mail to her sorority sisters saying that she had sex with a well-known performer who visited campus. The e-mail was leaked to multiple fraternity listservs, the site Betches Love This, and anonymous gossip site Collegiate ACB. On the site, the student was called a “whore, cum dumpster, and swamp monkey.” The various posts received hundreds of similar comments. The student deactivated her Facebook profile, deleted her Instagram, and disabled her Twitter account. Duke freshman “Lauren” was working in the porn industry to earn money to defray some of her college expenses. Lauren had not told anyone about her porn work, until a male classmate confronted her after watching her in a porn film. The student shared his discovery at a fraternity rush event. The story of the “freshman pornstar” went viral. The day after the student talked to his friends, Lauren received more than 230 friend requests on Facebook. Within days, the topic “Freshman Pornstar” was trending on Collegiate ACB. As Lauren confided to the school newspaper, the torment on Duke’s fourth campus–the online campus of the “towering chapel of Facebook,” the “student center of Twitter,” and the “grungy alleyways of Collegiate ACB”–was unrelenting. In a month’s time, the “Freshman Pornstar” thread on Collegiate ACB had 136 comments. The post was the seventh-most-recently commented post on Duke’s page on the gossip site. Some of the now-188 comments were vile, urging readers to write in once they have “banged” her and claiming that she slept with specific individuals and members of fraternities. Some were dangerous, noting her name and address. Comments blamed her for the abuse she was getting: “we going to pretend like she was unaware of the social consequences of going into that business? she made a decision, now she needs to live with the consequences;” “There’s no way she’s going to become a lawyer being a porn star (no law school is going to accept her). Seriously, she needs to get over herself and face the consequences of being a slut. I’ll be surprised if Duke doesn’t kick her out;” “Congratulations, you’ve ruined your own life.” Others defended the student: “you’re seriously making fun of her for that? um.. yeah this is the epitome of bullying.. you guys have written on a public forum her full name and where she lives (leaving her open for stalking and harassment) . as well as calling her a slut and attacking her personal beliefs.” As Lauren told the Chronicle, she feels harassed, hated, and discriminated against. She questions her decision to go to Duke given the abuse.

The Duke Chronicle’s editorial board wrote that the elite university is an “embittered battleground and discussions about Lauren–a first-year porn actress–have extracted salacious and sexist commentary from Duke’s student community.” The board found two primary themes in the commentary: characterizations of Lauren as a morally bankrupt slut and comments expressing a lewd desire to have sex with her. A third, unexamined theme, however, was also apparent–that Lauren was to blame for anything bad coming her way. She chose to do porn, so she assumed the risk of online harassment, poor employment opportunities, social shunning, and the possibility of getting kicked out of school.

Blaming the victim is a typical response to individuals facing online harassment, individuals who are mostly female and who are mostly attacked in sexually demeaning and threatening ways, as my articles and forthcoming book Hate Crimes in Cyberspace explore. After tech blogger Kathy Sierra was threatened with rape and strangulation via e-mail and on her blog, the response was that she chose to blog, so if she could not handle the heat, she should get out of the kitchen. College students blogging about sex were told that they “asked for” rape threats, defamatory lies, and the non-consensual posting of their nude photos because they blogged about their sexuality. Lena Chen’s experience was typical. When Chen attended Harvard, she wrote Sex and the Ivy. Anonymous commenters attacked her not with substantive criticisms of her opinions, but rather with death threats, suggestions of sexualized violence, and racial slurs. On a gossip blog, someone posted her sexually explicit photos, taken by her ex-boyfriend, without her consent. As Slate writer Amanda Hess reported (who would later face rape threats herself, see her recent article about her experience), Chen’s nude photos were reposted all over the Internet. The abuse continued even after she shut down the blog. Chen was accused of provoking the abuse by “making a blog about her personal sex life.” She was labeled an “attention whore” who deserved what she got. Commentators said that she leaked her own naked photos to get attention. Others said that she wrote about sex because she wanted posters to make sexual advances. We hear the same about victims of revenge porn.

Blaming the victim is a recurring theme. Society once blamed female employees for provoking their employers’ sexual advances. Wives were once told that they provoked domestic abuse. Just as society now recognizes sexual harassment at work and domestic abuse as serious social problems that victims did not bring on themselves, female college students are not to blame for online abuse if they have sex or make porn. Bloggers who write about sex are not to blame for online attacks. Revenge porn victims should not be blamed when harassers violate their trust and vindictively post their nude photos. Sexual double standards are at the heart of this response. Would we, for instance, say the same to men writing about sex? Tucker Max earned millions from writing books and a blog about his drunken sexual experiences with hundreds of women. By contrast, female sex bloggers have been attacked and told that they “asked for it.” As the Duke chronicle insightfully noted, the wildly different responses to the sexual escapades of Duke graduates Tucker Max and Karen Owen confirm that a sexual double standard is alive and well.


 

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Could Revenge Porn Victims Seek Civil Liability Against Hunter Moore?

Suppose that former revenge porn operator Hunter Moore is convicted of federal crimes of conspiracy to engage in computer hacking. Could individuals whose nude photos appeared on his site next to their home addresses and screenshots of their Facebook profiles sue Moore for intentional infliction of emotional distress and public disclosure of private fact? Probably not, but it’s worth exploring the issue.

The closest case law involves civil penalties provided for under federal criminal law. In M.A. v. Village Voice, a federal district court judge found that Backpage.com enjoyed Section 230 immunity for civil penalties under the child trafficking statute, 18 U.S.C. 2255. Section 2255 allows victims of child trafficking to recover damages from those who had committed or profited from the crimes against them. provides that, “[a]ny person who, while a minor, was a victim of a violation of [criminal statutes concerning child trafficking] and who suffers personal injury as a result of such violation may sue” and “recover actual damages such person sustained.” The representatives of a victim of child trafficking argued that Section 230 immunity was inapplicable because Backpage.com had profited from the plaintiff’s victimization in violation of Section 2255. As the court held, however, Section 2255 was a “civil damages” provision of Title 18, not federal criminal law.

The only remaining question is whether Moore materially contributed to the contested content–nude photos and Facebook screen shots. If so, he could be found liable as a co-developer of the content that often was tantamount to cyber stalking. Of course, the question of liability would remain. Just because a site operator does not enjoy immunity from liability does not mean he would be strictly liable for torts of intentional infliction of emotional distress, for instance. The question would be whether he intentionally inflict emotional distress on particular individuals? Recall that Moore boasted to the press that the more embarrassing and destructive the material, the more money he made. When a reporter told him that revenge porn had driven people to commit suicide, Moore said that he did not want anybody to die, but if it happened, he would be grateful for the publicity and advertising revenue it would generate; “Thank you for the money . . . from all of the traffic, Googling, redirects, and press.” Earlier this year, Moore told Betabeat’s Jessica Roy that he was relaunching his site including not just of people’s Facebook accounts, but their home addresses. “We’re gonna introduce the mapping stuff so you can stalk people,” he told Roy. When talking to Forbes’s Kashmir Hill, Moore backed off his statement, claiming to be drunk, but had tweeted, “I’m putting people’s house info with google earth directions. Life will be amazing.”

More broadly, sites that principally host revenge porn are making a mockery of Section 230. As Citizen Media Law Project’s Sam Bayard explains, a site operator can enjoy the protection of Section 230 while “building a whole business around people saying nasty things about others, and . . . affirmatively choosing not to track user information that would make it possible for an injured person to go after the person directly responsible.” In my book Hate Crimes in Cyberspace, I explore the possibility of Section 230 reform to ensure that the worst actors don’t enjoy immunity. It’s certainly a perverse result that the “Good Samaritan” provision of the Communications Decency Act immunizes from liability sites that solicit and principally host revenge porn and other forms of cyber stalking. More to come in August, when Harvard University Press publishes the book.

 

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Some Thoughts on Section 230 and Recent Criminal Arrests

We’ve devoted considerable attention on our blog to Section 230 of the Communications Decency Act, which immunizes online service providers/hosts from liability for user-generated content. Site operators are protected from liability even though they knew (or should have known) that user-generated content contained defamation, privacy invasions, intentional infliction of emotional distress, civil rights violations, and state criminal activity. Providing a safe harbor for ISPs, search engines, and social networks is a good thing. If communication conduits like ISPs did not enjoy Section 230 immunity, they would surely censor much valuable online content to avoid publisher liability. The same is true of search engines that index the vast universe of online content and produce relevant information to users in seconds and, for that matter, social media providers that host millions, and some billions, of users. Without Section 230, search engines like Google and Bing and social media providers like Yelp, Trip Advisor, Facebook, YouTube, and Twitter might not exist. The fear of publisher liability would have inhibited their growth. For that reason, Congress reaffirmed Section 230’s importance in the SPEECH Act of 2010, which requires U.S. courts to apply the First Amendment and Section 230 in assessing foreign defamation judgments.

In the past few months, prosecutors have arrested notorious revenge porn site operators Hunter Moore, Kevin Bolleart, and Casey Meyering. Those arrests have raised the question, what about Section 230? Hunter Moore’s arrest is the least controversial. Although Section 230 immunity is broad sweeping, it isn’t absolute. It exempts from its reach federal criminal law, intellectual property law, and the Electronic Communications Privacy Act. As Section 230(e) provides, the statute has “[n]o effect” on “any [f]ederal criminal statute” and does not “limit or expand any law pertaining to intellectual property.” Federal prosecutors indicted Moore for conspiring to hack into people’s computers in order to steal their nude images. According to the indictment, Moore paid a computer hacker to access women’s password-protected computers and e-mail accounts to steal nude photos for financial gain—profits for his revenge porn site Is Anyone Up. Site operators may be held accountable for violating federal criminal law.

What about revenge porn operators Bolleart and Meyerson who are facing state criminal charges? Generally speaking, site operators are not transformed into “information content providers” (who are not immunized from liability) unless they co-developed or co-created the allegedly criminal/tortious content, such as by paying for the illegal content and reselling it or drafting some of the contested content themselves. California Attorney General Kamala Harris’s prosecutions of both Bolleart and Meyerson press the question whether Section 230’s immunity extends to sites that effectively engage in extortion by encouraging the posting of sensitive private information and profiting from its removal.

Let’s take Bolleart’s case. It’s based on a similar theory as the case against Meyerson, who runs WinbyState, a private revenge porn site with a connected site that charges for the take down of photos. In December 2013, Bollaert, operator of revenge porn site UGotPosted, was indicted for extortion, conspiracy, and identity theft. His site featured the nude photos, Facebook screen shots, and contact information of more than 10,000 individuals. The indictment alleged that Bollaert ran the revenge porn site with a companion takedown site, Change My Reputation. According to the indictment, when Bollaert received complaints from individuals, he would send them e-mails directing them to the takedown site, which charged up to $350 for the removal of photos. Attorney General Harris explained that Bollaert “published intimate photos of unsuspecting victims and turned their public humiliation and betrayal into a commodity with the potential to devastate lives.”

Bollaert will surely challenge the state’s criminal law charges on Section 230 grounds. His strongest argument is that charging for the removal of user-generated photos is not tantamount to co-developing them. Said another way, charging for the removal of content is not the same as paying for, or helping develop, it. That is especially true of the identity theft charges because Bollaert never personally passed himself off as the subjects depicted in the photos. Nonetheless, the state has a strong argument that the extortion charges fall outside Section 230’s immunity because they hinge on what Bollaert himself did and said, not on what his users posted. Only time will tell if that sort of argument will prevail. Even if the California AG’s charges are dismissed on Section 230 grounds, federal prosecutors could charge Bollaert with federal criminal extortion charges. Sites that encourage cyber harassment and charge for its removal (or have a financial arrangement with removal services) are engaging in extortion. At the least, they are actively and knowingly conspiring in a scheme of extortion. Of course, this possibility depends on the enforcement of federal criminal law vis-à-vis cyber stalking, which as we have seen is stymied by social attitudes and insufficient training.