Archive for the ‘Cyber Civil Rights’ Category
posted by Danielle Citron
In our Big Data age, policing may shift its focus away from catching criminals to stopping crime from happening. That might sound like Hollywood “Minority Report” fantasy but not to researchers hoping to leverage data to identify future crime areas. Consider as an illustration a research project sponsored by Rutgers Center on Public Security. According to Government Technology, Rutgers professors have obtained a two-year $500,000 grant to conduct “risk terrain modeling” research in U.S. cities. Working with police forces in Arlington, Texas, Chicago, Colorado Springs, Colorado, Glendale, Arizona, Kansas City, Missouri, and Newark, New Jersey, the team will analyze an area’s history of crime with data on “local behavioral and physical characteristics” to identify locations with the greatest crime risk. As Professor Joel Caplan explains, data analysis “paints a picture of those underlying features of the environment that are attractive for certain types of illegal behavior, and in doing so, we’re able to assign probabilities of crime occurring.” Criminals tend to shift criminal activity to different locations to evade detection. The hope is to detect the criminals’ next move before they get there. Mapping techniques will systematize what is now just a matter of instinct or guess work, explain researchers.
Will reactive policing give way to predictive policing? Will police departments someday staff officers outside probabilistic targets to prevent criminals from ever acting on criminal designs? The data inputs and algorithms are crucial to the success of any Big Data endeavor. Before diving head long, we ought to ask about the provenance of the “local behavioral and physical characteristics” data. Will researchers be given access to live feeds from CCTV cameras and data broker dossiers? Will they be mining public and private sector databases along the lines of fusion centers? Because these projects involve state actors who are neither bound by the federal Privacy Act of 1974 nor federal restrictions on the collection of personal data, do state privacy laws limit the sorts of data that can be collected, analyzed, and shared? Does the Fourth Amendment have a role in such predictive policing? Is this project just the beginning of a system in which citizens receive criminal score risk assessments? The time is certainly ripe to talk more seriously about “technological due process” and the “right to quantitative privacy” for the surveillance age.
posted by UCLA Law Review
Volume 60, Discourse
posted by Mary Anne Franks
As promised in the comments section of my last post, I offer in this post the outline of my proposal to effectively combat revenge porn. A few preliminary notes: one, this is very much a work in progress as well as being my first foray into drafting legislative language of any kind. Two, a note about terminology: while “revenge porn” is an attention-grabbing term, it is imprecise and potentially misleading. The best I have come up with as a replacement is “non-consensual pornography,” so that is the term I will use throughout this post. I would be interested to hear suggestions for a better term as well as any other constructive thoughts and feedback.
I want to emphasize at the outset that the problem of non-consensual pornography is not limited to the scenarios that receive the most media attention, that is, when A gives B (often an intimate partner) an intimate photo that B distributes without A’s consent. Non-consensual pornography includes the recording and broadcasting of a sexual assault for prurient purposes and distributing sexually graphic images obtained through hacking or other illicit means. Whatever one’s views on pornography more broadly, it should be a non-controversial proposition that pornography must at a minimum be restricted to individuals who are (1. adults and (2. consenting. Federal and state laws take the first very seriously; it is time they took consent requirements seriously as well.
Before I offer my proposal for what a federal criminal prohibition of non-consensual pornography could look like, I want to explain why looking to federal criminal law is the most appropriate and effective response to the problem. In doing so, I do not mean to suggest that other avenues are illegitimate or ill-advised. I support the use of existing laws or other reform proposals to the extent that they are able to deter non-consensual pornography or provide assistance to victims. That being said, here is my case for why federal criminal law is the best way to address non-consensual pornography, in Q&A form.
posted by Danielle Citron
Let me build on Professor Franks’s incisive post on the blaming-the-victim response in the revenge porn context. As Franks rightly notes, a recurring response to women’s suffering is to blame the victims. As I discussed here, cyber harassment victims are often told that they provoked the abuse by blogging in their own names, sending pictures to boyfriends, or writing about sex. The public said the same about domestic violence and sexual harassment. Society minimized the culpability of the abusers and maximized the responsibility of victims to justify those practices. Law certainly was not necessary to address them. Then, as now, the public refused help to blameworthy women.
Before the 1970s, society tolerated abuse of so-called “recalcitrant” wives. The public’s attitude was that the battering was justified by the wife’s provocations. The notion was that if the woman had been a neater housekeeper, a more submissive helpmate, or a more compliant sexual partner, “her nose would not have been broken, her eye would still be uncut, [and] bruises would never have marked her thighs.” Judges and caseworkers asked battered wives to accept responsibility for provoking violence, rather than assessing their abusers’ conduct. The solution was to “fix” battered women. Social workers advised them to clean their homes and have dinner ready for their husbands when they arrived home from work. Consider a judge’s response to a man’s beating of his wife. While before the judge, the man said he hit his wife because of her unkempt hair, unsatisfactory cooking, and nagging because he refused to take her out. He told the judge: “Look at her. I wouldn’t take her to a dog fight.” The judge agreed. He determined that “straightening out the situation” required the wife to improve her appearance. Elizabeth Pleck, Domestic Tyranny: The Making of American Social Policy Against Family Violence From Colonial Times to the Present (Urbana IL: University of Illinois Press, 2004), 136. Psychiatrists supplied a medical diagnosis for the experience of battered wives. In esteemed medical journals, researchers claimed that wives suffered from “feminine masochism” that drove them to goad their husbands into beating them because they derived sexual and psychic pleasure from abuse. In other words, women enjoyed the humiliation. Police officers refused to arrest batterers because their wives brought on the abuse. In the mid-1970s, police training guides tended to portray battered women as nagging or domineering and instructed officers that removal of the abusive husband would be unreasonable if that were the case. The public also ignored domestic abuse because women failed to leave their abusers. Judge Richard D. Huttner, the administrative judge of New York City Family Court, recalled a colleague’s reaction to domestic violence victims: “Why don’t they just get up and leave? They have been taking these beatings all these years and now they want me to intercede. All they have to do is get out of the house. What do they want from me?”
The “blame the victim” sentiment pervaded the response to sexual harassment. The traditional view was that women belonged in the private sphere, the home. Women entered the public sphere, the workplace, at their own risk. Society insisted that women invited their supervisors’ sexual advances by dressing provocatively and flirting. Employers said that female employees were “responsible for at least some of what happened.” In the 1970s, a broadcasting executive justified sexual harassment in his workplace: “You know, some women dress so that people look at their breasts.” Courts legitimated this view by permitting employers to argue that women invited employer’s sexual advances. Society refused to take sexual harassment seriously because female employees had the chance, but refused, to change supervisors or jobs. Female employees were told that they bore responsibility for their predicament because they stayed and risked more harassment. Their failure to leave was proof that supervisors’ sexual advances were not unwelcome. In a Redbook story about Congressman who hired female staffers because they agreed to provide sex to them, reporter Sally Quinn criticized the women as failing to stand up for them selves. She described the women as “choosing to compromise [their] bodies.” Sally Quinn, “The Myth of the Sexy Congressmen,” Redbook, October 1976: 96.
posted by Mary Anne Franks
It would be one thing if the only people defending the practice of non-consensual sexual activity were the easily identifiable misogynists, the ones who always come crawling out of the gutters to inject their poorly spelled and exclamation-point-filled victim-blaming screeds into any discussion of rape, sexual harassment, or gender inequality. But the victim-blaming rhetoric that has surfaced in the conversation about revenge porn is also coming from seemingly reasonable people – people who think deeply about other social and legal issues and who even seem to have some sympathy for the victims.
Let me take as one example a recent post in Forbes by someone I respect, Professor Eric Goldman. The post is titled “What Should We Do About Revenge Porn Sites Like Texxxan?” and the answer, apparently, is nothing. Prof. Goldman characterizes revenge porn as “distasteful,” likens it to the “bad etiquette” of checking out the price of a colleague’s home on Zillow, and concludes with this recommendation: “for individuals who would prefer not to be a revenge porn victim or otherwise have intimate depictions of themselves publicly disclosed, the advice is simple: don’t take nude photos or videos.”
The first thing that strikes me about Prof. Goldman’s discussion of revenge porn (and this is true of many discussions of the issue) is the failure to note its gendered dimensions. This is despite the fact that empirical evidence so far indicates that revenge porn is primarily produced and consumed by men and primarily targets women. Revenge porn belongs to that class of activities that includes rape, domestic violence, and sexual harassment – that is, the class of activities overwhelmingly (though of course not solely) perpetrated by men and directed overwhelmingly (again, not solely) at women. Like those activities, one major effect of revenge porn is to limit women’s freedom to live their lives: it punishes women and girls for engaging in activities that their male counterparts regularly undertake with minimal negative (and often positive) consequences. Read the rest of this post »
posted by Danielle Citron
My recent post offered a potential amendment to Section 230 of the CDA that would exempt from the safe harbor operators whose sites are primarily designed to host illegal activity. Even without such legal change, cyber cesspool operators could face criminal liability if prosecutors took matters seriously. Section 230 does not provide a safe harbor to federal criminal charges. Consider revenge porn operator Hunter Moore’s statement to the press (Forbes’s Kashmir Hill and Betabeat’s Jessica Roy) that, on his new site, he will overlay maps of individuals’ homes next to their naked pictures and social media accounts (if he does not like them). If Moore is serious, he might open himself up to criminal charges of aiding and abetting cyber stalking. Congress, in its 2006 reauthorization of the Violence Against Women Act (VAWA), banned the use of any “interactive computer service” to engage in a “course of conduct” that places a person in another state in reasonable fear of serious bodily injury or death or that is intended to cause, and causes, a victim to suffer substantial emotional distress. 18 U.S.C.A. 2261A(2) (2012). As the Executive Director of the National Center for Victims of Crime explained in congressional testimony:
[S]talkers are using very sophisticated technology . . . —installing spyware on your computer so they can track all of your interactions on the Internet, your purchases, your e-mails and so forth, and using that against you, forwarding e-mails to people at your job, broadcasting your whereabouts, your purchases, your reading habits and so on, or installing GPS in your car so that you will show up at the grocery store, at your local church, wherever and there is the stalker and you can’t imagine how the stalker knew that you were going to be there. . . . this legislation amends the statute so that prosecutors have more effective tools, I think, to address technology through VAWA.
Congress ought to consider passing laws that criminalize the operation of sites designed to facilitate the posting of nude photographs without subjects’ consent, along the lines of state invasion of privacy laws. States like New Jersey prohibit the posting of someone’s nude or partially nude images without his or her consent if the images were recorded in a place where a reasonable person would enjoy an expectation of privacy. The Senate Judiciary Committee recently approved a bill that makes it a crime to make an online app whose primary use is to facilitate cyber stalking. The next important step is to criminalize sites doing the same.
Of course, laws will have limited coercive and expressive impact if they are never enforced. As the group End Revenge Porn rightly notes, “State police argue that the crime is occurring on the internet, which therefore crosses state lines and is out of their jurisdiction. The FBI claim that these cases are civil and/or do not threaten national security and should therefore should be handled solely by lawyers.” Changing those social attitudes and legal solutions are key. Advocacy groups like Without My Consent , lawyers, law professors like Mary Anne Franks, see here, Ann Bartow, see here, and Derek Bambauer, see here, activists like Jill Filipovic and Charlotte Laws, and most recently victims behind Women Against Revenge Porn and End Revenge Porn are working hard on this score. One might say that their work is part of an emerging cyber civil rights movement. (Check out Professor Franks’s important commentary about revenge porn on HuffPo Live). Lucky for us at CoOp, Professor Franks will be joining us next month as a guest blogger. I will be working hard to finish my book Hate 3.0: The Rise of Discriminatory Online Harassment and How to Stop It (forthcoming Harvard University Press) and working with Professor Franks on non-consensual pornography, so more to come.
posted by Danielle Citron
Why leave the safe harbor provision intact for site operators, search engines, and other online service providers do not attempt to block offensive, indecent, or illegal activity but by no means encourage or are principally used to host illicit material as cyber cesspools do? If we retain that immunity, some harassment and stalking — including revenge porn — will remain online because site operators hosting it cannot be legally required to take them down. Why countenance that possibility?
Because of the risk of collateral censorship—blocking or filtering speech to avoid potential liability even if the speech is legally protected. In what is often called the heckler’s veto, people may abuse their ability to complain, using the threat of liability to ensure that site operators block or remove posts for no good reason. They might complain because they disagree with the political views expressed or dislike the posters’ disparaging tone. Providers would be especially inclined to remove content in the face of frivolous complaints in instances where they have little interest in keeping up the complained about content. Take, as an illustration, the popular newsgathering sites Digg. If faced with legal liability, it might automatically take down posts even though they involve protected speech. The news gathering site lacks a vested interest in keeping up any particular post given its overall goal of crowd sourcing vast quantities of news that people like. Given the scale of their operation, they may lack the resources to hire enough people to cull through complaints to weed out frivolous ones.
Sites like Digg differ from revenge porn sites and other cyber cesspools whose operators have an incentive to refrain from removing complained-about content such as revenge porn and the like. Cyber cesspools obtain economic benefits by hosting harassing material that may make it worth the risk to continue to do so. Collateral censorship is far less likely—because it is in their economic interest to keep up destructive material. As Slate reporter and cyber bullying expert Emily Bazelon has remarked, concerns about the heckler’s veto get more deference than it should in the context of revenge porn sites and other cyber cesspools. (Read Bazelon’s important new book Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy). It does not justify immunizing cyber cesspool operators from liability.
Let’s be clear about what this would mean. Dispensing with cyber cesspools’ immunity would not mean that they would be strictly liable for user-generated content. A legal theory would need to sanction remedies against them. Read the rest of this post »
posted by Danielle Citron
Plaintiffs’ lawyers have some reason to think that they can convince courts to change their broad-sweeping view of Section 230. In the rare case, courts have pierced the safe harbor, though not because the site operators failed to engage in good faith attempts to protect against offensive or indecent material. In 2011, a federal district court permitted a woman to sue the site operator of the Dirty.com for defamation on the grounds that Section 230 is forfeited if the site owner “invites the posting of illegal materials or makes actionable postings itself.” Sarah Jones v. Dirty World Entertainment Recordings LLC, 766 F. Supp.2d 828, 836 (E.D. Kentucky 2011).
That trial judge relied on a Ninth Circuit decision, Fair Housing Council v. Roommates.com, which involved a classified ad service that helps people find suitable roommates. To sign up for the site’s service, subscribers had to fill out an online questionnaire that asked questions about their gender, race, and sexual orientation. One question asked subscribers to choose a roommate preference, such as “Straight or gay males,” only “Gay” males, or “No males.” Fair housing advocates sued the site, arguing that its questionnaires violated federal and state discrimination laws. The Ninth Circuit found that Section 230 failed to immunize the defendant site from liability because it created the questions and choice of answers and thus became the “information content provider.” The court ruled that since the site required users to answer its questions from a list of possible responses of its choosing, the site was “the developer, at least in part, of that information.” Each user’s profile page was partially the defendant’s responsibility because every profile is a “collaborative effort between [the site] and the subscriber.”
As the Ninth Circuit held (and as a few courts have followed), Section 230 does not grant immunity for helping third parties develop unlawful conduct. The court differentiated the defendant’s site from search engines whose processes might be seen as contributing to the development of content, its search results. According to the court, ordinary search engines “do not use unlawful criteria to limit the scope of searches conducted on them” and thus do not play a part in the development of unlawful searches. The court endorsed the view that sites designed to facilitate illegal activity fell outside Section 230’s safe harbor provision.
Here is the rub. To reach its conclusion, the Ninth Circuit essentially had to rewrite the statute, which defines information content providers as those responsible for the “creation and development of information provided through the Internet,” not the creation and development of illegal information. Read the rest of this post »
posted by Danielle Citron
Last week, a group of women filed a lawsuit against the revenge porn site Texxxan.com as well as the hosting company Go Daddy! Defendant Texxxan.com invites users to post nude photographs of individuals who never consented to their posting. Revenge porn sites — whether Private Voyeur, Is Anyone Down?, HunterMoore.tv (and the former IsAnyoneUp?), or Texxxan.com — mostly host women’s naked pictures next to their contact information and links to their social media profiles. Much like other forms of cyber stalking, revenge porn ruins individuals’ reputations as the pictures saturate Google searches of their names, incites third parties to email and stalk individuals, causes terrible embarrassment and shame, and risks physical stalking and harm. In the recently filed suit, victims of revenge porn have brought invasion of privacy and civil conspiracy claims against the site operator and the web hosting company, not the posters themselves who may be difficult to find. More difficult though will be getting the case past a Rule 12(b)(6) motion to dismiss.
In this post, I’m going to explain why this lawsuit is facing an uphill battle under Section 230 of the Communications Decency Act and why extending Section 230′s safe harbor to sites designed to encourage illicit activity seems out of whack with the broader purpose of CDA. In my next post, I will talk about cases that seemingly open the door for plaintiffs to bring their suit and why those cases provide a poor foundation for their arguments.
Does Section 230 give revenge porn operators free reign to ruin people’s lives (as revenge porn site operator Hunter Moore proudly describes what he does)? Sad to say, they do. Read the rest of this post »
posted by Danielle Citron
Since Friday, the news has been abuzz about the resignation of General Patraeus and the FBI investigation of alleged cyber stalking that led to the exposure of his affair and potential security risk — blackmail — that such an affair raises. According to today’s New York Times and other media coverage, the FBI agent who spearheaded the cyber stalking investigation was not really seeking to enforce the federal Interstate Stalking law. Instead, the agent thought, “This is serious” because the e-mail sender “seem[ed] to know the comings and goings of a couple of generals.’” The FBI agent supposedly worried that might suggest the Generals were being stalked in ways that could compromise national security. The Times explains that the agent “doggedly pursued Ms. Kelley’s cyberstalking complaint,” despite being admonished by supervisors who thought he was trying to improperly insert himself into the investigation. What’s clear: the agent pursued a criminal investigation of Ms. Broadwell for allegedly stalking Ms. Kelley (though it’s clear that is not the stalking that worried the FBI), which served as the basis for the warrant obtained by the FBI to retrieve Broadwell’s e-mails and ultimately obtain the e-mails of General Patraeus. This investigation used cyber stalking of Ms. Kelley as a pretext to obtain Ms. Broadwell’s e-mails and hence to better understand what the agent thought was the sexual nature of the relationship between Ms. Broadwell and the General.
On first hearing about the investigation, I never kidded myself that the FBI was taking cyber stalking seriously. That is not to say that they never do, but the typical response to cyber stalking complaints is to advise victims to turn off their computers, to return to the precinct when their stalkers confront them offline, to pursue their harassers with civil suits, and/or to ignore their attackers who will eventually get bored. Or as cyber stalking victims have told me, law enforcement agents, both federal and state, incorrectly tell them that criminal law provides little help to cyber stalking victims. (Federal and state law often does punish repeated online conduct directed at private individuals for no legitimate reason that is designed to cause substantial emotional distress that does in fact cause substantial emotional distress, 18 U.S.C. 2261A(2)(A)). Indeed, little has changed since the Department of Justice reported in 2001 that the majority of law enforcement agencies refused to investigate cyber stalking cases because they lacked training to understand the seriousness of the attacks and the potential legal responses. Part of the problem may be attributable to officers’ poor response to stalking generally. According to the 2009 National Crime Victimization Survey, stalking continues to be frequently overlooked and often misunderstood. Half of those surveyed explained that officers took a report and did nothing else. Almost 19% reported that officers did nothing at all. They attributed police inaction to a lack of interest in getting involved, a sense that no legal authority existed, and incompetence. Lack of training and troubling social attitudes are to blame for criminal law’s under-enforcement.
posted by Stanford Law Review
The Stanford Law Review Online has just published a Note by Andrew Tutt entitled Software Speech. Tutt argues that current approaches to determining when software or speech generated by software can be protected by the First Amendment are incorrect:
When is software speech for purposes of the First Amendment? This issue has taken on new life amid recent accusations that Google used its search rankings to harm its competitors. This spring, Eugene Volokh coauthored a white paper explaining why Google’s search results are fully protected speech that lies beyond the reach of the antitrust laws. The paper sparked a firestorm of controversy, and in a matter of weeks, dozens of scholars, lawyers, and technologists had joined the debate. The most interesting aspect of the positions on both sides—whether contending that Google search results are or are not speech—is how both get First Amendment doctrine only half right.
By stopping short of calling software “speech,” entirely and unequivocally, the Court would acknowledge the many ways in which software is still an evolving cultural phenomenon unlike others that have come before it. In discarding tests for whether software is speech on the basis of its literal resemblance either to storytelling (Brown) or information dissemination (Sorrell), the Court would strike a careful balance between the legitimate need to regulate software, on the one hand, and the need to protect ideas and viewpoints from manipulation and suppression, on the other.
November 15, 2012 at 10:18 am Tags: Constitutional Law, Cyber Civil Rights, First Amendment, search engines, technology, videogames Posted in: Constitutional Law, Cyber Civil Rights, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Law Rev (Stanford), Supreme Court, Technology Print This Post 3 Comments
posted by Danielle Citron
Recall that during the spring, a jury convicted Dahrun Ravi of criminal invasion of privacy along with a bias intimidation charge for surreptitiously using his webcam to live stream his roommate’s sexual encounter and for attempting to do so a second time. Here comes word of another criminal invasion of privacy case, this time in Maryland. Apparently, a Howard County man broke into the apartments of two young women, installing a video camera in their bathrooms and bedrooms. The man has been charged with burglary and video surveillance “with a prurient interest.” The man apparently knew the women, allowing him to steal and copy their apartment keys. According to news reports, the suspect filmed himself installing the cameras. Apparently, Maryland law aims to punish and deter sexualized privacy invasions by requiring proof of prurient interest. Besides the Ravi case, another criminal matter that comes to mind is the Erin Andrews stalking case. Much like the criminal case against Ms. Andrews’s stalker, prosecutors might also have charged the defendant with criminal harassment, that is, repeated conduct designed to cause victim substantial emotional distress with intent to cause substantial emotional distress. On the civil side of things, the women can surely sue their harasser for tort privacy’s intrusion on seclusion, which protects against invasions of someone’s solitude or her “private affairs or concerns” that would be “highly offensive to the reasonable person.” As I head off to speak at the Harvard Law Review’s symposium on Privacy and Technology where I will be commenting on Neil Richards’s excellent essay “The Dangers of Surveillance” (and as I write my book Hate 3.0: The Rise of Cyber Harassment and How to Stop It, forthcoming in Harvard University Press), this case could not be more timely. You can check out David Gray’s and my response to Neil’s paper, a draft of which is posted on the HLR website.
posted by Mary Anne Franks
My reaction to Robin West’s extraordinary scholarship always includes some mixture of distress and excitement: distress over the failures of law and humanity she describes with such devastating clarity, and excitement about the potential applications of her insights. In this post, I want to discuss how Robin’s critique of both liberal legalism and what she calls “neo-critical” legal theory in Normative Jurisprudence – particularly the former’s fetishization of individual rights and the latter’s decidedly uncritical celebration of consent – usefully illuminates the recent controversy over the outing of Michael Brutsch, aka “Violentacrez,” the man behind some of the most controversial forums on the popular social news website, reddit.com. One of these, the “/r/creepshot” forum (or “subreddit”), which encouraged users to submit surreptitious photographs of women and girls for sexual commentary, garnered national attention when it was discovered that a Georgia schoolteacher was posting pictures of his underage students. Brutsch’s outing (or “doxxing“) sparked outrage from many in the reddit community, and has led to an intriguing online and offline debate over Internet norms and practices. The defense of Brutsch and the forums he helped create – mostly sexual forums targeting women and girls – has been dominated by a highly selective conception of the right to privacy, the insistence on an unintelligibly broad conception of “consent,” and a frankly bewildering conception of the right to free speech. Attempts to criticize or curtail these forms of online abuse have also been primarily framed in terms of “rights,” to uncertain effect. Robin’s critiques of rights fetishism and the ideology of consent offer valuable insights into this developing debate.
I will attempt to briefly summarize (and no doubt oversimplify, though I hope not misrepresent) the points Robin makes that I think are most useful to this conversation. Liberal legalism’s focus on rights rests on a seductive fantasy of individual autonomy: it “prioritizes the liberty and autonomy of the independent individual, shrouds such a person in rights, grants him extraordinary powers within a wide ranging sphere of action, and in essence valorizes his freedom from the ties and bonds of community. It relegates, in turn, the interests, concerns, and cares of those of us who are not quite so autonomous or independent … those of us for whom our humanity is a function of our ties to others rather than our independence from them … to the realm of policy and political whim rather than the heightened airy domain of right, reason, and constitutional protection” (41). The critical legal studies movement attempted to correct some of this rights fetishism by pointing out that “rights” are not only radically indeterminate (i.e. rights can be interpreted and granted in conflicting ways), but that they are also legitimating (that is, bestowing the status of “right” on narrowly drawn freedoms can obscure the injustice and inequality that fall outside of them, thus insulating them from critique).
Robin persuasively demonstrates that neo-critical legal theorists held on to the indeterminacy thesis while jettisoning the critique of legitimation. Concerns about legitimation are concerns about suffering, and neo-crits are largely uninterested in, if not contemptuous of, suffering. Their primary concern is power and pleasure, which is accordingly supported by what Robin calls “the ideology of consent.” To the neo-crits, consent has the power to fully shield any act from either legal or moral critique. Robin addresses the way the ideology of consent plays out in the context of sex by looking to the work of Janet Halley. According to Robin, Halley espouses a view of sex that takes “[c]onsent to sex … as full justification for a collective blindness to both societal and individual pressures to engage in unwanted sex, so long as the sex is short of rape”(142). Sex is presumptively pleasurable, and as such presumptively immune from critique. As Robin describes Halley’s position, “sex is almost always innocent, and when consensual, there can be no ‘legitimate’ basis for criticism. Consensual sex is just too good to be circumscribed, or bound, by claims of its unwelcomeness or unwantedness. The claims that consensual sex is in fact unwelcome or unwanted are likely false in any event. The harms sustained, even if the claims are true, are trivial” (146). (I came to similar conclusions regarding Halley’s work in my review of her book, Split Decisions: How and Why to Take a Break from Feminism).
Now to apply these insights to the Michael Brutsch/creepshot controversy. The moderators of the creepshot subreddit provide this helpful definition of “creepshot” on the “subreddit details” page:
posted by Madhavi Sunder
Another day brings another cornucopia of exciting and important comments on my book, From Goods to a Good Life: Intellectual Property and Global Justice. I thank Professors Molly Van Houweling, Jessica Silbey, Michael Madison, and Mark McKenna, and earlier Concurring Opinions commentators —Professors Deven Desai, Lea Shaver, Laura DeNardis, Zahr Said, and Brett Frischmann—for reading my book so carefully, and engaging it so helpfully. I focus here on Professor Van Houweling’s framing of an important issue arising in the discussion.
Professor Van Houweling has provoked stimulating discussion with her astute observation of two competing visions of intellectual property within the emergent “capabilities approach” school of intellectual property we identified earlier this week. Professor Van Houweling contrasts Professor Julie Cohen’s alternative justification of copyright as a tool for promoting corporate welfare (sustaining creative industries), with my attention to intellectual property laws as tools for promoting livelihood and human welfare (sustaining human beings in their quest for a good life).
September 14, 2012 at 1:15 am Posted in: Civil Rights, Constitutional Law, Culture, Cyber Civil Rights, Education, Feminism and Gender, First Amendment, Jurisprudence, Law and Humanities, Law and Inequality, Media Law, Race, Symposium (From Goods to a Good Life), Technology, Uncategorized, Web 2.0 Print This Post One Comment
posted by Laura DeNardis
Madhavi Sunder’s thought-provoking new book, From Goods to a Good Life, creates an opportunity to rethink many areas of global knowledge policy, including how the Internet’s technical architecture is governed. Global Internet governance is often viewed through the lens of technical expediency and innovation policy, especially concentrating attention on the international institutions that coordinate critical Internet resources and infrastructure. Sunder’s book provides a refreshing theoretical basis for shifting this frame to place culture and human rights at the center of Internet governance debates. Technologies of Internet governance, although concealed in technical complexity and generally outside of public view, are the new spaces determining some of the most important cultural freedom issues of our time.
Sunder’s book suggests the technological features necessary for participatory culture to thrive. Some of these include many-to-many interactivity, amenability to manipulation and revision, and an architecture that shifts cultural production from the top-down hierarchical control of popular media to a distributed system in which cultural creation can reside at endpoints. As Sunder explains, “This open architecture facilitates democratic resistance to dominant cultural discourses.”
Some trends in Internet governance are discordant with these crucial features. Internet governance control points are neither legal control points nor are they confined within nation-state boundaries. They are often manifested through the design of technical architecture, the decisions of global institutions of Internet governance, and through private business models.
I’ll offer a few Internet governance questions with implications for the future of participatory culture. The first is the evolving, behind-the-scenes architecture of online advertising practices. Relinquishing information about ourselves, consciously or not, is the quid pro quo bargain for free culture. The companies that operate platforms supporting distributed cultural production obviously require massive annual operating budgets. They provide free distributed products (e.g. YouTube, social media, blogging platforms) but are supported by online advertising models predicated upon the centralized collection and retention of data (contextual, locational, behavioral) about individuals that use these products. The removal of material barriers to cultural production is predicated upon these information goods, which are in turn predicated upon the hidden and mechanized monetization networks that support them. Information collected about individuals routinely includes unique hardware identifiers, mobile phone numbers, IP addresses, and location as well as content and site-specific information. In what ways will these evolving practices eventually constrain participatory culture and human freedom? There is a cultural disconnect between the perception of online anonymity and the actuality of a multi-layered identity infrastructure beneath the layer of content.
A second Internet governance trend potentially agonistic to the future of participatory culture is the turn to the Domain Name System (DNS) for intellectual property rights enforcement. The DNS has always served a clear technical function of translating between the alphanumeric names that humans use and the binary Internet addresses that routers use. Right now, the authoritative Internet registries that resolve these names into binary numbers are already being asked to enforce trademark and copyright laws, essentially blocking queries from websites associated with piracy. If this practice expands to ISPs and other DNS operators (as SOPA/PIPA seemed to propose), what will be the collateral damage to free expression and participatory culture?
Finally, an emerging Internet governance challenge to participatory culture is the trend away from interoperability. The ability to exchange information regardless of location or device is a necessary ingredient for participatory culture. Some social media approaches actually erode interoperability in several ways: lack of inherent compatibility among platforms; lack of Uniform Resource Locator (URL) universality; lack of data portability; and lack of universal searchability. In all of these cases, standard approaches are available but companies have explicitly designed interoperability out of their systems. Cloud computing approaches seem to be lurching away from interoperability in a similar manner. These trends concentrate control and intelligence in medias res rather than at end points. These centralized and proprietary approaches mediated by gatekeepers are what the market has selected but this selection has consequences for cultural as well as technical interoperability.
Madhavi Sunder’s book is a reminder to think about these architectural and economic shifts with attention to their effects on participatory culture and to engage public input into these debates.
It might not be immediately obvious how issues as varied as essential medicines, viral Internet videos, and technical architecture are connected to each other and to human liberty. Drawing from theorists as diverse as Durkheim, Foucault, and Habermas, From Goods to a Good Life convincingly makes this connection. Congratulations to Professor Sunder for so insightfully helping us to connect issues of intellectual property and human freedom across diverse areas of global knowledge policy.
Dr. Laura DeNardis, Associate Professor, American University in Washington, D.C.
posted by Deven Desai
As the political season is in full swing and folks claim to understand SOPA, PIPA, etc., I thought I should point people to Adam Theirer’s post Mueller’s Networks and States = Classical Liberalism for the Information Age. I knew Adam a little before my stint at Google. I came to know him more while there. I do not agree with everything Adam says. Rather, he reminds me of folks I knew in law school. I disagreed with many people there, but respected the way they argued. Their points made me rethink mine and perhaps improve them. The distinction between cyber-libertarianism and Internet exceptionalism that Berin Szoka and Adam try to make is important. I am not sure it succeeds but as Adam says
They are not identical. Rather, as Berin and I argued, they are close cousins. Properly defined, cyber-libertarianism is essentially the application of traditional libertarian thinking — which is more properly defined as classically “liberal” — to Internet policy issues. Berin and I define “cyber-libertarianism” as “the belief that individuals — acting in whatever capacity they choose (as citizens, consumers, companies, or collectives) — should be at liberty to pursue their own tastes and interests online.” Internet exceptionalism, by contrast, is the belief that the Internet has changed culture and history profoundly and is deserving of special care before governments intervene. But that does not necessarily tell us what sort of philosophy or core tenants ultimately animate exceptionalism going forward. (emphasis added by me)
This last point is the reason I call out the piece. So far I have not seen anything that addresses the point in a satisfactory way. Adam and Berin face this gap and try to fill it. Agree. Disagree. That is your choice. But read the whole thing and see where you end up. One final note, I think classical liberalism as Adam defines it may be more empty than it seems. For now I cannot explain why. For that I apologize to those of that camp, but I am working on that. Oh which reminds me, Julie Cohen’s book, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice, takes on this issue.
posted by Omer Tene
Photo: Like it’s namesake, the European Data Protection Directive (“DPD”), this Mercedes is old, German-designed, clunky and noisy – yet effective. [Photo: Omer Tene]
Old habits die hard. Policymakers on both sides of the Atlantic are engaged in a Herculean effort to reform their respective privacy frameworks. While progress has been and will continue to be made for the next year or so, there is cause for concern that at the end of the day, in the words of the prophet, “there is no new thing under the sun” (Ecclesiastes 1:9).
The United States: Self Regulation
The United States legal framework has traditionally been a quiltwork of legislative patches covering specific sectors, such as health, financial, and children’s data. Significantly, information about individuals’ shopping habits and, more importantly, online and mobile browsing, location and social activities, has remained largely unregulated (see overview in my article with Jules Polonetsky, To Track or “Do Not Track”: Advancing Transparency and Individual Control in Online Behavioral Advertising). While increasingly crafty and proactive in its role as a privacy enforcer, the FTC has had to rely on the slimmest of legislative mandates, Section 5 of the FTC Act, which prohibits ‘‘unfair or deceptive acts or practices”.
To be sure, the FTC has had impressive achievements; reaching consent decrees with Google and Facebook, both of which include 20-year privacy audits; launching a serious discussion of a “do-not-track” mechanism; establishing a global network of enforcement agencies; and more. However, there is a limit as to the mileage that the FTC can squeeze out of its opaque legislative mandate. Protecting consumers against “deceptive acts or practices” does not amount to protecting privacy: companies remain at liberty to explicitly state they will do anything and everything with individuals’ data (and thus do not “deceive” anyone when they act on their promise). And prohibiting ‘‘unfair acts or practices” is as vague a legal standard as can be; in fact, in some legal systems it might be considered anathema to fundamental principles of jurisprudence (nullum crimen sine lege). While some have heralded an emerging “common law of FTC consent decrees”, such “common law” leaves much to be desired as it is based on non-transparent negotiations behind closed doors, resulting in short, terse orders.
This is why legislating the fundamental privacy principles, better known as the FIPPs (fair information practice principles), remains crucial. Without them, the FTC cannot do much more than enforce promises made in corporate privacy policies, which are largely acknowledged to be vacuous. Indeed, in its March 2012 “blueprint” for privacy protection, the White House called for legislation codifying the FIPPs (referred to by the White House as a “consumer privacy bill of rights”). Yet Washington insiders warn that the prospects of the FIPPs becoming law are slim, not only in an election year, but also after the elections, without major personnel changes in Congress.
July 30, 2012 at 7:47 pm Tags: co-regulation, data protection, multistakeholder, Privacy, right to be forgotten, self regulation, w3c Posted in: Cyber Civil Rights, Cyberlaw, International & Comparative Law, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Uncategorized Print This Post 3 Comments
posted by Danielle Citron
The judge handed down the sentence in the Dahrun Ravi case today. For his conviction on witness- and evidence-tampering and lying to the police, Ravi will serve 30 days in jail. For the hate crimes charge and sentence enhancement, Ravi was sentenced to three years’ probation, 300 hours of community service, counseling on cyber bullying and alternative lifestyles, and payment of $11,000 to a group that helps victims of bias crimes. The judge included a recommendation to immigration authorities that the defendant, an Indian citizen who came to the United States as a child, not be deported. The judge made fairly clear his thinking. Before announcing the sentence, the judge said that he did not believe that the defendant hated Tyler Clementi but rather that he “acted out of colossal insensitivity.” To the defendant, the judge said: “You lied to your roommate who placed his trust in you without any conditions, and you violated it. I haven’t heard you apologize once.” He emphasized the defendant’s attempt to “corrupt the justice system” by tampering with evidence and witnesses. The judge explained that he took factors including Ravi’s youth and his lack of a criminal record into consideration.
Before the sentencing, many (including me) worried about a sentence that straddled the extremes. An unduly harsh sentence might produce a backlash against using hate crime laws in instances of bigoted online harassment (including threats, privacy invasions, etc.) while an unduly light sentence would trivialize what happened to the victim, the public shaming of his sexuality and bias intimidation. We have fallen into the latter zone. The defendant received a sentence of probation and counseling on the hate crime that he thrice rejected in plea offerings by the prosecutor. To make matters worse, the judge repudiated the jury’s conviction on the hate crime count when he characterized the defendant as insensitive, not bigoted. Even so, all is not lost. The sentence and conviction do say something important. They make clear that engaging in online harassment and shaming of individuals from traditionally subordinated groups has a cost. The sentence is not something to shrug at: the defendant has a criminal record for a hate crime with three years’ probation (even though he might have been sentenced to far more than that, ten years). To young people interested in bright futures, this is worth avoiding. Viewed at a distance, the case teaches us that juries will take similar cases seriously. It does not and should not say that such cases are easy and uncomplicated. They are hard and deservedly belong in the public eye. That this case made it into court with a conviction makes a difference.
posted by Laura DeNardis
Drawing from economic theory, Brett Frischmann’s excellent new book Infrastructure: The Social Value of Shared Resources (Oxford University Press 2012) has crafted an elaborate theory of infrastructure that creates an intellectual foundation for addressing some of the most critical policy issues of our time: transportation, communication, environmental protection and beyond. I wish to take the discussion about Frischmann’s book into a slightly different direction, moving away from the question of how infrastructure shapes our social and economic lives into the question of how infrastructure is increasingly co-opted as a form of governance itself.
Arrangements of technical architecture have always inherently been arrangements of power. This is certainly the case for the technologies of Internet governance designed to keep the Internet operational. This governance is not necessarily about governments but about technical design decisions, the policies of private industry and the decisions of new global institutions. By “Infrastructures of Internet governance,” I mean the technologies and processes beneath the layer of content and inherently designed to keep the Internet operational. Some of these architectures include Internet technical protocols; critical Internet resources like Internet addresses, domain names, and autonomous system numbers; the Internet’s domain name system; and network-layer systems related to access, Internet exchange points (IXPs) and Internet security intermediaries. I have published several books about the inherent politics embedded in the design of this governance infrastructure. But here I wish to address something different. These same Internet governance infrastructures are increasingly being co-opted for political purposes completely irrelevant to their primary Internet governance function.
The most pressing policy debates in Internet governance increasingly do not involve governance of the Internet’s infrastructure but governance using the Internet’s infrastructure. Governments and large media companies have lost control over content through laws and policies and are recognizing infrastructure as a mechanism for regaining this control. This is certainly the case for intellectual property rights enforcement. Copyright enforcement has moved well beyond addressing specific infringing content or individuals into Internet governance-based infrastructural enforcement. The most obvious examples include the graduated response methods that terminate the Internet access of individuals that repeatedly violate copyright laws and the domain name seizures that use the Internet’s domain name system (DNS) to redirect queries away from an entire web site rather than just the infringing content. These techniques are ultimately carried out by Internet registries, Internet registrars, or even by non-authoritative DNS operators such as Internet service providers. Domain name seizures in the United States often originate with the Immigration and Customs Enforcement agency. DNS-based enforcement was also at the heart of controversies and Internet boycotts over the legislative efforts to pass the Protect IP Act (PIPA) and the Stop Online Privacy Act (SOPA).
An even more pronounced connection between infrastructure and governance occurs in so-called “kill-switch” interventions in which governments, via private industry, enact outages of basic telecommunications and Internet infrastructures, whether via protocols, application blocking, or terminating entire cell phone or Internet access services. From Egypt to the Bay Area Rapid Transit service blockages, the collateral damage of these outages to freedom of expression and public safety is of great concern. The role of private industry in enacting governance via infrastructure was also obviously visible during the WikiLeaks CableGate saga during which financial services firms like PayPal, Visa and MasterCard opted to block the financial flow of money to WikiLeaks and Amazon and EveryDNS blocked web hosting and domain name resolution services, respectively.
This turn to governance via infrastructures of Internet governance raises several themes for this online symposium. The first theme relates to the privatization of governance whereby industry is voluntarily or obligatorily playing a heightened role in regulating content and governing expression as well as responding to restrictions on expression. Concerns here involve not only the issue of legitimacy and public accountability but also the possibly undue economic burden placed on private information intermediaries to carry out this governance. The question about private ordering is not just a question of Internet freedom but of economic freedom for the companies providing basic Internet infrastructures. The second theme relates to the future of free expression. Legal lenses into freedom of expression often miss the infrastructure-based governance sinews that already permeate the Internet’s underlying technical architecture. The third important theme involves the question of what this technique of governance via infrastructure will mean for the technical infrastructure itself. As an engineer as well as a social scientist, my concern is for the effects of these practices on Internet stability and security, particularly the co-opting of the Internet’s domain name system for content mediation functions for which the DNS was never intended. The stability of the Internet’s infrastructure is not a given but something that must be protected from the unintended consequences of these new governance approaches.
I wish to congratulate Brett Frischmann on his new book and thank him for bringing the connection between society and infrastructure to such a broad and interdisciplinary audience.
Dr. Laura DeNardis, American University, Washington, DC.
posted by Peter Swire
Along with a lot of other privacy folks, I have a lot of concerns about the cybersecurity legislation moving through Congress. I had an op-ed in The Hill yesterday going through some of the concerns, notably the problems with the over broad ”information sharing” provisions.
Writing the op-ed, though, prompted me to highlight one positive step that should happen in the course of the cybersecurity debate. The Privacy and Civil Liberties Oversight Board was designed in large part to address information sharing. This past Wednesday, the Senate Judiciary Committee had the hearing to consider the bipartisan slate of five nominees.
Here’s the point. The debate on CISPA and other cybersecurity legislation has highlighted all the information sharing that is going on already and that may be going on in the near future. The PCLOB is the institution designed to oversee problems with information sharing. So let’s confirm the nominees and get the PCLOB up and running as soon as possible.
The quality of the nominees is very high. David Medine, nominated to be Chair, helped develop the FTC’s privacy approach in the 1990′s and has worked on privacy compliance since, so he knows what should be done and what is doable. Jim Dempsey has been at the Center of Democracy and Technology for over 15 years, and is a world-class expert on government, privacy, and civil liberties. Pat Wald is the former Chief Judge of the DC Circuit. Her remarkably distinguished career includes major experience on international human rights issues. I don’t have experience with the other two nominees, but the hearing exposed no red flags for any of them.
The debates about cybersecurity legislation show the centrality of information sharing to how government will respond to cyber-threats. So we should have the institution in place to make sure that the information sharing is done in a lawful and sensible way, to be effective and also to protect privacy and civil liberties.
April 21, 2012 at 5:02 pm Tags: CISPA, civil liberties, cybersecurity Posted in: Administrative Law, Cyber Civil Rights, Cyberlaw, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security) Print This Post One Comment