Archive for the ‘Cyber Civil Rights’ Category
Cyber Gender Harassment: “Skanks of NYC”
posted by Danielle Citron
Dan, Kaimi, and Elizabeth have offered some terrific insights on the issues raised by the court’s unmasking of the “Skanks of NYC” blogger. Kaimi’s post “Cyber Civil Rights vs Privacy in the ‘Skanks in NYC’ case” in particular did a superb job capturing the issue as discrimination. I write here to follow up on issues related to the case that folks have discussed with me.
Some have asked whether this case warrants treatment as a cyber civil rights issue since it “is just a girl cat fight.” To be sure, women can deprive other women of their right to be free of unequal treatment on the basis of their gender. But the larger concern is, for me, convincing skeptics to see the blog attacks on Ms. Cohen as more than just an interpersonal disagreement between two women, something that tort law can handily address on its own, but rather as gender discrimination. Tort law would not reach the harm experienced by Ms. Cohen, women, and society due to the blog’s interference with her right to equal treatment. It would not address the stigma that Ms. Cohen experienced a a result of the blog’s message that she had worth only as a sex object. Much like sexual harassment in the workplace, the blog suggested that Ms. Cohen constitutes an object of sexual derision, not a person worthy of respect. Moreover, they interfered with Ms. Cohen’s right to work as an equal. According to Ms. Cohen, potential employers asked her about the blog, which quite possibly deterred them and others from hiring her. In a world filled with aspiring models, employers might chose to work with someone who comes with less baggage, even if they do not believe the postings a wit. And the blog postings harm women as a group and a society as a whole by entrenching gender hierarchy in cyberspace. Whether current law would support such a claim is certainly in dispute, but such a law could be crafted. Such a law would play an important expressive role–it would change the social meaning of such harassment of women.
Indeed, as privacy scholar Ian Kerr suggested, maybe the media’s attention to the case can be attributed to its leering interest in a “battle” between two beautiful women? Maybe coverage of the issue reflects a deeper misogyny: the story has attracted so much attention because it produces an image of women as female wrestlers of sorts, battling it out in their bikinis?
August 26, 2009 at 12:58 pm
Posted in: Anonymity, Civil Rights, Cyber Civil Rights, Cyberlaw, Privacy, Uncategorized
Print This Post
2 Comments
Professor John Doe Is An Ugly [Insert Racial Slur]!
posted by Elizabeth Nowicki
Law students sometimes use the internet to widely disseminate racist or gendered comments about women and minority faculty members. For example, I have heard about law students using teaching evaluation forms or Facebook or Myspace to make comments to the effect that that a female faculty member is a bitch with PMS or that an African-American faculty member is a [insert racial slur]. Indeed, the Auto-Admit debacle from a couple years back revealed that law students or potential law students seem to at least sometimes use the internet to convey vicious gendered and/or racist comments.
When I hear about these situations, I always wonder about the “character and fitness” implications. It seems to me that a law student who is publicly judging a female faculty member negatively on a gendered basis or who is characterizing minority faculty members by way of stereotyping and ugly slurs is raising questions about his/her character and fitness to practice law. In the same way that a lawyer who embezzles is not fit to practice, one might argue that a law student who dismisses individuals with ugly characterizations based only on race or gender might also be of questionable character for purposes of practicing law. Yet not everyone agrees with this assessment, and, with respect to law students using the internet for such attacks, there has not been a lot of discussion about the character and fitness issues raised.
Therefore, the AALS Section on Women in Legal Education will be presenting a panel at the AALS Annual Meeting in New Orleans examining the issues raised – including the character and fitness issues – when law students, lawyers, judges, or potential law students use the internet to make gendered or racist comments. If a student posts on her Myspace page that Professor John Doe, who teaches Gender and Race and the Law, is an “ugly [insert racial slur] who only has a job due to affirmative action,” does that pose a character and fitness concern? Should we care?
There is a call for papers for this panel presentation, and anyone interested in submitting a paper or paper proposal is welcome to e-mail me for the details.
July 9, 2009 at 6:29 pm
Posted in: Civil Rights, Conferences, Cyber Civil Rights, Feminism and Gender, First Amendment, Intellectual Property
Print This Post
11 Comments
Alexander Meiklejohn, Blog Comment Policies, and Free Speech
posted by Neil Richards
I read with interest a couple of weeks ago the discussion on this and other law professor blogs about comments policies – whether to allow comments, whether to moderate them, and when and whether to edit and/or delete them. The discussion reminded me of Alexander Meiklejohn’s famous conception of free speech as a moderated town meeting, where the diversity and quality of discussion was more important than any individual right to speak. Meiklejohn argued that “the First Amendment … is not the guardian of unregulated talkativeness” and that the free speech guarantee was “not that everyone shall speak, but that everything worth saying shall be said.”
I think something similar applies to the moderation of blog comments – moderation in the pursuit of good discussion is a healthy thing. Of course, there is always the danger that thin-skinned or intellectually dishonest moderators might edit in order to come out better in an argument, but this risk is lessened by the fact that there are lots of blogs, and (at least in the case of law blogs) there is a fairly robust set of professional norms and reputational consequences operating in the background. So I think blog comment policies (like the one on this blog) are perfectly fine (even though I there us some irony in that the blog comment policy having comments turned off!). But like Meiklejohn’s moderator, as long as the discussion is being moderated constructively, there are real gains from numerous moderated discussions. In fact, since different discussions can operate under different conditions of moderation, some discussions can be tightly moderated (ie, books and newspapers), others can have little or no moderation, and at the opposite extreme there is the wiki model, where even the statements of others are subject to revision and alteration. A wide variety of discussions and forms of discussion is, I think, the key to a robust and healthy discourse.
One natural objection to this line of argument is that we’re not really talking about the First Amendment here, since all of the blogs and fora of discussion are private actors. I’ve increasingly come to believe that the values of free discussion and debate are too important to be left to the First Amendment. (I make a mild form of this argument here in a recent article). Newspapers, blogs, email, water-cooler chats and other forms of relatively public and relatively private discussion are the building blocks of a vibrant expressive culture, and if we only think about free expression from the perspective of avoiding government anti-censorship, we are missing (at least) half of the world. For this reason, I think discussions about issues like blog comment policies are centrally the concern of free expression, and such discussions can benefit immensely from a little First Amendment theory.
Blog comments are turned off from this post (just kidding!)
May 7, 2009 at 9:22 am
Posted in: Blogging, Constitutional Law, Cyber Civil Rights, First Amendment
Print This Post
3 Comments
CCR Symposium: Late to the Party …
posted by David Post
I’m inexcusably late to the party, having been metaphorically standing in the corner and listening to the discussion(s) taking place in the center of the room. [I should say that I found the online symposium format more than a little disorienting and difficult to track -- but that's a subject for another day]. The discussion, for me, was disturbing and a little depressing — not necessarily a bad thing for a discussion to be, of course. On the merits, I don’t know that I have a great deal to add to what was already said — I stand solidly with Michael Froomkin on these questions: the cure proposed is (1) worse than the disease, (2) deeply unconstitutional, and (3) would have pernicious global side-effects.
What disturbed me was neither the manner in which the discussion took place (which was civil and informative), nor Prof. Citron’s proposals (which are similarly thoughtful and provocative, though I am obviously not a big fan of them), but rather that the values of free expression seem to have so little purchase within this community of intelligent, thoughtful, and reasonable people — and if it’s got little purchase here, my hopes for it elsewhere are correspondingly diminished. Reading the various comments, one gets an impression of a First Amendment that is more, but not much more, than a nuisance standing in the way of progressive social legislation. [And I should hasten to add: I mean this as a comment on the emergent properties of the discussion itself, not as a criticism of any particular commentator, or of Citron's original proposals] One commentator — actually articulating one of the stronger positions in support of free speech that was expressed here — framed the debate this way:
“Rather than attempting to understand cyberharassment as conduct unprotected by the First Amendment, I would instead characterize it (along with threats, defamation, and other forms of harassment) as speech that nonetheless may be regulated when it poses substantial harms without significantly furthering traditional First Amendment values.”
If that’s the government’s burden — to show merely that speech “poses substantial harms” and that it does not “significantly further First Amendment values” before it can suppress it — freedom of expression is in serious trouble. More to my point: if that represents a relatively strong- First Amendment view in a reasonable sample of the law professor community — and not just any law professor community, but the law professor community in a country that can reasonably lay claim to having possibly the strongest constitutional tradition of protecting free speech — things are bleak indeed.
The harms described in Citron’s paper are very real and “substantial”. But to my eye — and, as Froomkin also noted, these may amount to no more (or no less) than value judgments, incapable of resolution by reasoned arguments alone — this does not justify the catastrophic consequences for free expression that would flow from abandoning the principle of anonymity. The notion of “anonymous but traceable” communication is, for all intents and purposes, an oxymoron; when people know that all of their communication is traceable to them, they will no longer speak in the way that they would speak when they know that it is not. A world of fully traceable communication is Bentham’s Panopticon, Foucault’s “faceless gaze” — “the instrument of permanent, exhaustive, omnipresent surveillance, capable of making all visible.” That is a very steep price to pay to protect against these harms. “Freedom of expression does in some cases depend on people reasonably believing they can speak without being called to account for it. That may sometimes be disreputable, even evil. Sometimes it may help save a life, or the Republic.”
April 18, 2009 at 8:28 am
Posted in: Cyber Civil Rights
Print This Post
21 Comments
CCR: Coda
posted by Danielle Citron
In writing Cyber Civil Rights, I hoped to begin a conversation about the relationship between cyber civil rights and cyber civil liberties, including the ways in which safeguarding civil rights online reinforces free speech values. Thanks to distinguished participants Ann Bartow, Daithí Mac Síthigh, David Fagundes, Michael Froomkin, Nathaniel Gleicher, James Grimmelmann, Orin Kerr, Nancy Kim, Helen Norton, David Robinson, Dan Solove, and Kaimi Wenger and my co-bloggers Dave Hoffman, Frank Pasquale, and Deven Desai (who came up with the idea for the symposium, wrote superb posts, and organized the event) that conversation happened in a rich and thought-provoking way, one that will have a lasting impact on my work on the protection of civil rights online.
April 17, 2009 at 3:25 pm
Posted in: Cyber Civil Rights
Print This Post
14 Comments
CCR Symposium: Differences Among Online Entities
posted by David Robinson
I’ve described my reactions to the first prong of Danielle’s proposed standard of care (IP logging) as well as the second prong (filtering). I’ll now complete the project with a brief look at the third and final prong of the proposed standard of care: differentiated expectations for different classes of online entities. Regretfully, these thoughts are composed in haste to get them in under the wire of the symposium’s conclusion.
ISPs are different in so many respects from web sites that it is probably best to deal with each in turn. Looking to the ISP side first, a regime of differentiated standards for different classes of service provider could deal effectively with the concerns raised in my first post about home users, public amenities, and other actors poorly positioned to log and authenticate the people to whom they provide service, by exempting them from the IP logging regime. This would make the IP logging far from comprehensive, but logging by commercial ISPs could continue, as it already does, to provide useful information to law enforcement about which broadband customer originated certain traffic.
Danielle’s argument proposes new, harassment-related uses for IP information that is already logged and already routinely used in other legal contexts. This raises the question: In between the IP logging that already does occur, and the IP logging that a real-world implementation of Danielle’s proposal would wisely and reasonably not require, is there any new IP logging that the proposal would introduce for service providers? I’m not sure.
As for web sites: Large and well established sites could be forced to filter content, clumsily and with collateral harm. They could be forced to retain logs of each visit, probably without too much added cost. But what about the periodic tendency of new web sites to become popular overnight? In some cases, the sites aren’t well engineered for their newfound popularity. In others, the very features that make the sites popular may inherently make filtering or logging difficult. Twitter may be an example of both of these phenomena: rather than a well established site, humming along, it has been a growing, unstable, sometimes broken site even when used by millions of users. Implementing filtering or logging requirements is difficult for any site that struggles with prior questions, like staying online while overwhelmed by user demand. And the very high volume of messages means that a tiny added cost for the posting of each new message (CPU cycles to analyze and filter, or a delay while the message waits for its turn to be added to a log) could help bring the whole system to a grinding halt.
There’s much more to say here, and I hope, in time, to be able to develop it further. I’ll end by recording my gratitude to the organizers, my fellow participants, and our readers.
April 16, 2009 at 4:30 pm
Posted in: Cyber Civil Rights
Print This Post
One Comment
CCR Symposium: Rhetoric and the Audience Problem
posted by Orin Kerr
Deven is surely right that rhetoric isn’t necessarily a bad thing. After all, we’re all lawyers here, and every lawyer uses rhetoric to frame arguments. It’s a basic tool of persuasion.
At the same time, rhetoric can be highly audience-dependent. Consider Republican politicians. These days, almost every Republican politician uses the rhetoric of Reaganism to appeal to the base. The GOP loves Reagan, and most GOP politicians who need the base (which is most of them) try to create the impression that they are just like Reagan. The idea is to trigger the positive associations that the GOP base has about Reagan and to try to transfer that same passion and enthusiasm for the candidate. But that message is audience dependent, because different groups react to different rhetroic in different ways. If you’re running for elected office in San Francisco or New York, you wouldn’t want to wrap yourself in Reaganism: That audience has mostly negative associations of Reagan, so the rhetoric would be counterproductive.
In this case, I wonder if the”civil rights” rhetoric has a narrower audience than some of us think. The rhetoric may have a great deal of power to some audiences, be more or less neutral to other audiences, and even perhaps have a negative connotation to others. That isn’t necessarily criticism, of course, any more than it’s criticism to point out that so many GOP politicians are painting themselves as the next Ronald Reagan. Each advocate can pick her or her audience. But to the extent the use of rhetoric is designed to persuade a particular audience, I think it’s worth asking how broad the group is that is likely to be persuaded by the use of that particular rhetoric.
April 16, 2009 at 4:28 pm
Posted in: Cyber Civil Rights
Print This Post
One Comment
CCR Symposium: CCR and the Law of the Horse 2.0
posted by David Fagundes
For my last post in this symposium (which has, btw, been lots of fun—thanks to the organizers for including me and to Danielle Citron for writing such a provocative piece), I’m going a bit farther afield. In the late 1990s, just as the internet was beginning to explode, two major figures—Frank Easterbrook and Larry Lessig—wrote a pair of essays in which they disagreed about how law should react to and regulate cyberspace.
Easterbrook’s essay, “Cyberspace and the Law of the Horse”, came out in 1996, and as the title suggests, the judge took issue with the idea that cyberspace should be treated by lawyers and academics as a sui generis field. Easterbrook argued that regulating cyberspace with extant legal mechanisms was sufficient, and that there was no more need to offer “the law of the internet” course in law school than there was to offer “the law of the horse”.
Lessig’s 1998 response, “The Law of the Horse: What Cyberspace Might Teach”, unsurprisingly took a more sanguine view of the internet as a distinct subject for legal study. While Lessig did not call for an entirely separate and distinct body of regulations to govern cyberspace (as some scholars at the time did), he did argue that studying the internet could impart distinct lessons about separation of powers, transparency, and the tailoring of law that any other subject matter (e.g., horses) could not.
CCR engages the issue that was joined by Easterbrook and Lessig over a decade ago. It takes some familiar topics—civil rights, sex harassment—and re-situates them in cyberspace in order to cause us to understand them in a new way, though Citron’s calls for regulation leverage traditional legal frameworks. What does this I offer a few thoughts about how CCR fits into the Easterbrook/Lessig debate, and who appears to have won that debate over a decade later, below the fold.
April 16, 2009 at 4:09 pm
Posted in: Cyber Civil Rights
Print This Post
No Comments
CCR Symposium: Rhetoric, A Good Thing
posted by Deven Desai
First, a word about a word, rhetoric: please do not kid yourselves; persuasion is a core aspect of speech. So-called rhetoric of this, that, and other tells us little. Go to the core of the idea. What motivates it? Go to the core of an opposing idea. What motivates it? Continue that process. By so doing, one may, and I stress may, find that over time, a clearer picture of what is going on emerges. Orin and Nancy’s exchange highlights this point. Civil rights has a certain logic and power. So does free speech. As Nathaniel noted, one can nonetheless find aspects of each position that map to the other. Yet, let me be clear, rhetoric is not and cannot be about adopting a frame. That idea makes little sense. Framing reveals some, but it cannot by itself control thoughtful engagement. Put differently, the power of Danielle’s paper is that it challenges. It forces one to ask the questions that have arisen throughout the symposium. It presents a view of the world that for some is quite accurate, but for others seems unfounded. That is the beauty of the endeavor; it makes one think. For me, presenting a problem in a new light approaches Conrad’s description of writing which I believe fits what we should strive to do with scholarship:
My task which I am trying to achieve is, by the power of the written word, to make you hear, to make you feel — it is, before all, to make you see. That — and no more, and it is everything. If I succeed, you shall find there according to your deserts: encouragement, consolation, fear, charm — all you demand; and, perhaps, also that glimpse of truth for which you have forgotten to ask.
With that said, let me note what the paper and the symposium has made me consider. Is there a harm? Yes. Do we know exactly what it looks like? No, but we have a pretty good idea of what it is. Is the harm always the same? No. Do we have countervailing interests at stake? Yes. Do the two seemingly competing interests either over or under protect? Yes. Where does that leave us? With Danielle’s paper.
Danielle’s paper chooses to tackle possibly incommensurate ideals. Yet, that possibility demands that we see what can be done. As she notes:
The law’s reaction to claims against large actors for new types of harms typically goes through three distinct phases. First, it recognizes the new form of harm, but not the benefit that the new technology has occasioned. This drives the law to adapt existing theories of liability to reach that harm. Second, after the technology’s benefits become apparent, the law abruptly reverses course, seeing its earlier awards of liability as threats to technological progress and granting sweeping protection to the firms in the new industry. Finally, once the technology becomes better established, the law recognizes that not all liability awards threaten its survival. It then separates activities that are indispensable to the pursuit of the new industry from behavior that causes unnecessary harm to third parties.
It seems that we may be entering the third phase, and so Danielle is asking what balance would look like.
I will have a separate post about the details of the paper and the symposium ideas.
April 16, 2009 at 3:26 pm
Posted in: Cyber Civil Rights
Print This Post
One Comment
CCR Symposium: What is To Be Done?
posted by Michael Froomkin
(Some of what follows probably repeats, perhaps with different emphasis, comments by David Fagundes and James Grimmelmann, Paul Ohm, and others.) I suspect that in the main existing civil and criminal law (perhaps including civil rights law) provides about the right level of civil and criminal liability for people who post vile things about others online. That belief is shaped by two more fundamental convictions:
A. It’s important not to over-deter speech as it is to deter libel and other tortious or possibly illegal speech, and the costs of getting this wrong can be very high.
B. The rules governing online conduct in general ought to be the same as those regulating the same activity offline whenever possible – and in the case of speech in particular, that (in the absence of the scarcity rationale underpinning some broadcast regulation) the First Amendment should not distinguish between technologies, be it a printing press or a network.
On the other hand, I also think anyone who asserts this – and thus asserts that the recommendations in Cyber Civil-Rights ought to give us pause – should face the strongest case for the other side, which I take to rest primarily on three complementary assertions:
April 16, 2009 at 2:53 pm
Posted in: Cyber Civil Rights
Print This Post
6 Comments
CCR Symposium: We Are The World
posted by Daithi Mac Sithigh
I’d be very interested to read international responses to this paper and the consequences of the actions suggested in it. It’s always intrigued me how debates on speech-related issues differ from place to place, and how what’s taken for granted in the US, for example, is not so in Europe. As so much of the published work on Internet law comes from the United States, it’s only natural that First Amendment considerations be a strong influence on such writing. Harassment, too, can be quite localised, including in some of the situations referred to in Cyber Civil Rights. However, there’s still the obvious crossborder nature of the Internet, meaning that if a problem is identified, the solution – or the constitutional constraints on the solution – require some sort of consideration of non-US law and indeed non-US impact. Here’s a first attempt at opening up that conversation.
April 16, 2009 at 2:00 pm
Posted in: Cyber Civil Rights
Print This Post
No Comments
CCR Symposium: Screening Software
posted by David Robinson
Yesterday, I introduced some practical considerations that suggest the regime of IP logging proposed in Cyber Civil Rights might be less effective than it sounds as a way to identify anonymous harassers. Today, I want to turn to the second of the three concrete policy elements the paper outlines, namely the use of screening software.
There are many hypothetical kinds of computer filtering software that would, if they existed, be highly valuable. For example, software that could filter out illicit copies of copyrighted works, without impinging on fair use, authorized copying, or the exchange of public domain materials, would be greeted eagerly not only by the content industry, but by ISPs. Software that could protect children from obscene materials online without collateral harm to protected expression (such as health information) would be ideal for libraries. Such software would also, as Danielle writes, be “wholly consistent with the Communications Decency Act’s objectives.” Congress has always been happy to permit the kind of well-done filtering imagined in these hypotheticals.
To her credit, Danielle does not assert that such ideal software exists today, and in that respect she stands above a long and unfortunate tradition of wishful thinkers. In fact, she acknowledges that there will be “inevitable failures of this software to screen out all offensive material.” (I imagine Danielle would also acknowledge the converse, inevitable failure to leave in all of the material that is not offensive in the salient sense.)
Is such software feasible? Danielle’s paper summarizes Susan Freiwald to the effect that “reducing defamation through technological means may be possible if companies invest in code to make it feasible.” Friewald in the original writes: ” If a legal rule demanded it, companies would likely invest in code that made it feasible” (Susan Freiwald, Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation, 14 Harv. J.L. & Tech. 569, at 629). In other words, if the law required firms to invest in trying to solve this problem, they would invest. Freiwald is, as Danielle is, apparently optimistic about the likely results of such investment. But the citation doesn’t offer authoritative grounds for optimism.
There’s no shortage of demand for the platonically ideal filtering software. And there would be plenty of privately profitable uses for it, if it did exist, as well as publicly beneficial ones. Public libraries may not provide much of a financial incentive for software development, but the content industries, as the conflicts over Digital Rights Management have repeatedly shown, certainly do. So why haven’t software companies created such software yet? One might argue that the potential market is too small, which does not strike me as plausible. Another theory would be that these firms are so ideologically committed to an unfettered Internet that they all choose, all the time, not to make these profitable investments. Yet another would be that they aren’t judging the technical risks and rewards accurately—the task is easier than they believe, or the market larger.
But the explanation that I find most persuasive may also be the simplest: The best we can hope to do, in filtering, is a crude approximation of the Platonic ideal. When software companies offer frustratingly coarse filters, and when they tell us that better ones are not feasible, they are making an admission against interest, and it deserves to be taken seriously.
It’s true that there is a moderate market for in-home filtering software directed at young children, and for some (but not most) workplace environments. These contexts share two important properties: First, the party purchasing the filtering software (parents or business owners or IT staff) does not have to live under its restrictions, and therefore may be less sensitive to the coarseness of those restrictions; and second, the harm from overblocking is low because neither young children nor employees in their work have as strong an interest in being able to send or receive free expression as the median Internet user does.
If ideal filtering were possible—if computers were, or could become, that good at evaluating human expression—then the technology would have applications far beyond the present case of preventing Internet harassment. But consider how hard it is to tell whether something counts as an instance of harassment. Lawyers and judges debate edge cases. Even an example from Danielle’s paper (suggesting that a harasser should be awarded a “Congressional medal”) could plausibly be read in its context as sarcastic reproach, rather than endorsement, of the harasser. A search for antagonizing words might catch harassers but it would also ensnare Danielle’s paper and this symposium.
April 16, 2009 at 12:45 pm
Posted in: Cyber Civil Rights
Print This Post
One Comment
CCR Symposium: In Defense of Self-Defense
posted by David Fagundes
As several other symposium participants have pointed out, Danielle Citron’s proposal seeks to enhance some speech by suppressing other speech. A different approach to cyber sex harassment would be to combat the harassing conduct not with legal sanctions, but by enabling and encouraging counter-speech that exposes and criticizes both harassers and their behavior.
In CCR (at 104-06), Citron considers and dismisses the counter-speech approach. The problems that she identifies with this strategy are convincing, but her discussion fails to give full consideration to the various ways that counter-speech may be promising tool to counter cyber sex harassment. I articulate three such reasons below the fold.
April 16, 2009 at 1:16 am
Posted in: Cyber Civil Rights
Print This Post
7 Comments
CCR Symposium: What Does the “Civil Rights” Label Add?
posted by Orin Kerr
Having written on why I’m not sure the problems of this symposium are civil rights problems, let me now move on to what exactly the label adds. Let’s say, for the sake of argument, that everyone agrees that the issues here are civil rights issues. What follows from that?
I ask the question because I don’t see how altering Section 230 liability in response to the problem of cyberbullying is a “civil rights” response. For example, two years ago, I wrote a blog post floating the idea that we should restrict Section 230 liability in response to the problem of Internet cyberbullying, and in particular the facts of the AutoAdmit case. I wrote:
Would it help to somehow link up provider immunity with search robot exclusion? Under current law, site owners are immune from liability for the speech of others under 47 U.S.C. 230. This means that a site owner can allow anonymous comments, announce that anything goes, and then sit back and watch as the trolls engage in all sorts of foul play. Search engine robots then pick up the foul play, resulting in harm weeks or months later when a third party googles that person or event. A lot of people may be harmed, but the law can’t stop it: the provider is immune and the commenters are anonymous.
If I’m not mistaken, though, the same provider who is immune under Section 230 also controls the scope of the resulting harm. Why? Because, at least as I understand it, the same provider controls whether search engine robots are permitted to come to the site and collect the information in the first place. I believe that blocking search engine robots is pretty easy, or at least could be configured to be easy; it just requires a line of htmlcoding.
Where does that take us? Well, it suggests to me that we might consider conditioning legal immunity on disabling search robots. Providers would be immune for liabililty relating to particular content only if they had taken technical measures to block search engine robots from collecting that content. So if you wanted to host a free-for-all for others and be immune from liability, you coulld do that: you would just have to keep the resulting content from being fed into Google. On the other hand, if you wanted Google to pick up the content, for whatever reason, you would need to assume the risk of liability for that content you’re letting Google collect.
I emphasized at the time that the idea was tentative and amateurish, and that I didn’t know if it would work. Indeed, maybe the idea is nutty. But I didn’t conceive of the proposal as a civil rights proposal, or of myself as a civil rights crusader. Rather, I was just trying to figure out if you could tinker with the law in a way that restored incentives lacking in the law that seemed to be causing significant social harm.
So I return to the question, what does the label “civil rights” add? I wonder if it’s mostly a rhetorical move. On one hand, the label appears to genuinely excite some people. On the other hand, folks who might oppose the proposals might be reluctant to be seen as opposing something labeled “civil rights.” Either way, I’m not sure what the label adds in substance. Social harms are social harms, and I’m not sure the label does much to change how we assess them.
April 15, 2009 at 7:15 pm
Posted in: Cyber Civil Rights
Print This Post
26 Comments
CCR Symposium: Progressive 2.0
posted by Daithi Mac Sithigh
I too congratulate Danielle Citron for her article on Cyber Civil Rights, which has already achieved what must have been one important aim – that of encouraging the community of ‘Internet law’ scholars to reconsider the purpose and value of some fairly established ideas. So far in this symposium, commentators have highlighted the way in which framing the question of online expression as simultaneously one of civil rights can change the desired legislative or regulatory approach. Michael Froomkin adds a further twist, highlighting how it is important to consider the impact of remedial measures on the concept of and right to anonymity. Running the risk of adding another frame, I suggest that we are moving towards a reassessment of the role of the intermediary on the present-day Internet, and I’m hopeful that Prof. Citron’s article might lead towards a new kind of debate, one that goes beyond business-friendly libertarians doing battle with social conservatives while the rest of us look on.
April 15, 2009 at 3:37 pm
Posted in: Cyber Civil Rights
Print This Post
No Comments
CCR Symposium: Practical Aspects of IP Logging
posted by David Robinson
I’m honored to be taking part in the symposium. Danielle’s article illustrates an important problem and does a great job—as this ongoing symposium itself illustrates—of launching a conversation about how that problem may be addressed.
Thus far, the symposium’s discussion of of “traceable anonymity” has focused on its legal and normative aspects. Danielle writes that traceable anonymity the suitable standard of care for ISPs and web sites has three elements: In this post, I’ll review what those elements are, and discuss the first (mandatory IP address logging, which she calls “traceable anonymity”) in some detail. I’ll save the latter two elements of traceable anonymity the proposed standard of care for subsequent posts.
Working at the boundary between policy scholarship and technical scholarship, one frequently observes a kind of “reciprocal optimism,” in which the lawyers make optimistic assumptions about how well technical solutions will work, and the technologists make optimistic assumptions about how well legal solutions will work. IP logging is, I fear, an instance of the former tendency.
April 15, 2009 at 2:30 pm
Posted in: Cyber Civil Rights
Print This Post
5 Comments
CCR Symposium: Rhetorically Speaking
posted by Nathaniel Gleicher
In evaluating the comparative rhetoric of free speech and civil rights, it’s important to note that there are compelling free speech arguments on both sides of this debate. It can certainly be argued that impinging on anonymous speech constitutes a burden on free speech (as Prof. Kim rightly notes, only to the extent that the communication in question constitutes protected speech). A very similar argument, however, can be marshalled on the other side. When online harassment is allowed to continue unabated, its targets are silenced — not because of legal pressures, but because of the escalating spiral of threats that online harassment has often lead to (cf Kathy Sierra).
In fact, the first amendment implications reach well beyond the actual targets of the speech. When we consider the civil rights frame that Prof. Citron has proposed, we are worried not only about specific attacks, but also the risk of making the Internet as a whole an inhospitable/threatening place for members of targeted groups (especially, in this case, women). This development imposes dramatic burdens on the speech of members of these targeted groups. If speaking out as a woman online means you must risk being attacked, threatened, and harrassed, it doesn’t take much analysis to conclude that women will be less likely to participate in the online public sphere. This is particularly troubling because the groups that stand to benefit the most from the Internet are those groups that face social discrimination offline. Allowing online harrassment to keep members of such groups from speaking online threatens one of the Internet’s strongest first amendment potentials — allowing those who might otherwise be unable to express themselves to speak online.
It’s true that the rhetoric of free speech has been employed in this debate heavily by those looking to minimize the impact of online harassment. That doesn’t mean that those of us who see online harassment as a pervasive problem should cede the rhetoric of free speech to the other side, however. In particular, I think articulating the harms caused by online harassment through both the lens of free speech and civil rights is central to validating efforts — legal or normative — to address them.
April 15, 2009 at 12:30 pm
Posted in: Cyber Civil Rights
Print This Post
One Comment
CCR Symposium: Anonymity and Traceability
posted by Daniel Solove
In an interesting and thoughtful critique of Danielle Citron’s Cyber Civil Rights, Michael Froomkin argues that Danielle’s proposal to require ISPs to maintain records of IP addresses will spell “the complete elimination of anonymity on the US portion of the Internet in order to root out hateful speech.” Anonymous speech should be strongly protected, as it is key to allowing people to express themselves candidly and openly, without fear of reprisal. It is especially important to promote dissenting views that are outside the mainstream of conventional thought. But the key issue with anonymity online is: How much do we want to protect it? Anonymous speech can lead to harmful defamation, invasion of privacy, intentional infliction of emotional distress, as well as criminal conduct, such as the spread of child porn. Is there a way to protect anonymity yet not let it get too out of hand?
In Chapter 6 of The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (available free online), I distinguished between anonymity vs. traceability. Anonymity, defined broadly to also encompass the use of pseudonyms, is the ability to speak without publicly linking one’s words to one’s real name. Traceability is something different — it involves the ability to trace one’s words back to one’s identity. In my book, I propose that we have traceable anonymity — we should preserve people’s right to speak anonymously yet that doesn’t mean that people should be able to be untraceable. In the event of a compelling reason, anonymous speakers should be unmasked. Practically, most people don’t know how to be untraceable. But what if it were easier? What if people could speak anonymously and never be tracked down, no matter how harmful or criminal their speech or dissemination of information online might be?
Citron’s argument, as I understand it, is for improving traceability, not for eliminating anonymity. She wants to make it easier to link people to their anonymous comments only if these comments cause tortious or criminal harm.
As I see it, the primary arguments against traceability are:
1. There is nothing that one can say online that should be legally restricted. “Sticks and stones can break my bones but words can never hurt me.” Traceability is therefore not necessary and is harmful because it is in the service of promoting tort or criminal limitations to speech online.
2. Courts too readily allow for the unmasking of anonymous speakers. Such unmasking should be done only in the most compelling situations, where there is no other alternative and where the speakers have clearly engaged in tortious or criminal conduct. Judicial standards for linking IP addresses to speakers are too varied, and many standards are far too underprotective of anonymity. Therefore, until the standards are sufficiently high enough and well-settled, traceability should not be promoted.
April 15, 2009 at 11:59 am
Posted in: Cyber Civil Rights
Print This Post
One Comment
CCR Symposium: Risk Perception and Online Speech
posted by Dave Hoffman
I want to join the other participants in this symposium in congratulating Danielle for putting together such a terrific article. As James G. writes, Danielle frames a compelling case for thinking about online harassment as a civil rights problem, an approach both novel and bracing.
Back in March, Danielle put up a post on Trivializing Women’s Harms: The Story of Cyber Gender Harassment. That post attracted commentators, and links, who vigorously disputed both the seriousness of the risk posed by online speech and the (lightness) of the burden that she suggested be placed on anonymous speech. Were we not controlling the comment threads on these posts relatively carefully, we’d see a similar level of skepticism, expressed in vivid, personal, terms. But why would this be? Why aren’t the risks that the online “speech” pose as obvious to our commentators as they are to Daneille and others on this blog?
The reason isn’t because partisans (like the ACLU, whose inconsistency is remarked by Ann Bartow), or free speech advocates, are deliberately conforming their views of risk to their personal interests or ideological positions. Rather, as cultural cognition theory predicts, “individuals are disposed selectively to accept or dismiss risk claims in a manner that expresses their cultural values.” Persons of hierarchical and individualistic orientations will worry more about being rendered defenseless by gun control; egalitarians and communitarians will worry about the legacy of patriarchy and racism associated with guns and thus discount those risks. Similarly hierarchs will be worried about the risks of disorder following flight from the police; egalitarians will be more concerned about the risks of police oppression. And so on.
Applying the group-grid theory to the project of cyber risks suggests that individualists , who value markets and private ordering, might be disposed to discount the risks of online “mobs”, unless those mobs are directed at values of concern, like the right to be anonymous and free from regulation. By contrast, communitarians believe that individuals will interact with one another frequently, depend on one another, and that this mutual inter-dependence is a condition to be celebrated and supported. Thus, people of different cultural views will have distinct views of the risks of conduct & the benefits of regulation, and those views will (significantly) be less likely that you might think to respond to new sets of “facts”. Perversely, arguing from facts my accent, not ameliorate, dissension between individuals holding different values.
What, then, is to be done to convince the individualists that their values aren’t under assault and that the risks of online mobs are severe enough to warrant some form of regulation? Danielle suggests that framing this as a civil rights problem would serve a valuable “normative and expressive role.” The danger, I think, is that many will respond, as does Orin Kerr here, by suggesting that there are competing norms and expressed values in play. It’s a serious problem, and I don’t have the answers. But I do think that being more generous & attentive to those holding different values is an important part of coming to consensus, and thus I’m really pleased with the respect and collegiality demonstrated in this symposium so far.
April 15, 2009 at 11:36 am
Posted in: Anonymity, Behavioral Law and Economics, Conferences, Cyber Civil Rights
Print This Post
12 Comments
CCR Symposium: The Lulz Mob
posted by James Grimmelmann
I’d like to take up Orin Kerr’s question: what do we gain from using a “civil rights” frame that ordinary tort and criminal law frames don’t provide? As I suggested in my earlier post, I think the answer is closely linked to the the dead bodies–that is, to the factual specifics of the kinds of harassment Cyber Civil Rights discusses.
April 15, 2009 at 1:18 am
Posted in: Cyber Civil Rights
Print This Post
No Comments