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Category: Cyber Civil Rights

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CCR Symposium: The Civil Rights Agenda

For me, the most important part of Danielle Citron’s paper is right there in the title: the way she frames online harassment specifically as a civil rights problem. It’s one of those moves that’s so seemingly simple that the reader may be tempted to say yeah, yeah, so what? But then Citron shows what, directly and carefully. Online harassment isn’t just about individual bullies and victims–though it’s about that, too. It’s also about pervasive patterns of abuse, directed at vulnerable groups, that effectively deprive them of the ability to participate in important social institutions.

Another commentator at this symposium, Ann Bartow, has argued that some legal scholarship has “too much doctrine, and not enough dead bodies.” Cyber Civil Rights has plenty of dead bodies, especially the virtual effigies of women targeted by anonymous individuals–or worse, anonymous mobs–for online abuse. The paper opens with the story of Kathy Sierra, threatened with rape and strangulation, including the delightful comment, “The only thing Kathy has to offer me is that noose in her neck size.” The footnotes of the first part of Cyber Civil Rights give a grim tour through some some of online harassment’s greatest and most appalling hits.

Then–and this is the point of Bartow’s argument that scholars need to be willing to point out where the bodies are buried–Citron uses these unsettling stories to make a familiar doctrinal story strange. In the Internet law world, we’re accustomed to talking about harassment as an issue that combines two of our favorite Internet hobbyhorses: anonymity and Section 230‘s immunity for intermediaries. The result is that many serious, important debates about responses to harassment have run into the well-worn ruts of very old arguments (on Internet time, that is) about the legal standard for unmasking anonymous individuals online and about how much to make intermediaries liable for harmful content.

Shifting from there to civil rights frame, however, allows Citron to point out important but often-ignored features of harassment online, ones that suggest different doctrinal moves. Civil rights discourse helps us see the victims of harassment as members of a consistently subordinated group, rather than as just unlucky individuals. It helps us see the mob dynamics at work in these simulacra of lynchings, rather than thinking about each insult in isolation. It reminds us that there’s a long tradition of using law creatively to prevent personal bias from becoming societal discrimination.

Indeed, when you go back to the online harassment cases after reading Cyber Civil Rights, it’s striking how many of them are really civil rights cases. True, few of them buy into that frame, and few have provided much redress for victims, but they’re directly engaged with classic civil rights issues. Take Noah v. AOL, a 2003 case dismissing on section 230 grounds a lawsuit against AOL for doing nothing about anti-Muslim comments its chat rooms like “well allah can suck my dick you peice of ass” and “SMELLY TOWEL HEADS,” or, more recently, the Craigslist and Roommates.com cases about discriminatory online housing ads. The law in these cases is all about the ins and outs of interpreting section 230, but the facts are all about religious intolerance and racial segregation. Cyber Civil Rights suggests that when we think about cross-cutting issues in Internet law–such as anonymity or intermediary liability–we might do well to pause before diving into the technical specifics of the communications at stake and instead ask, “Why do we want to know?”

CCR Symposium: Balancing Anonymity and Accountability Online

Is cyberspace a “wild west“? Should “anything go” online? Are statements and behavior sharply distinguishable? Are the former “only words” that change the world through the unforced force of persuasion, and the latter the kind of action we rightfully fear and regulate?

Danielle Citron’s work Cyber Civil Rights suggests that the answer to all these questions is no. She both applies and challenges the old doctrinal categories we’ve used to deal with these issues–such as the speech/conduct distinction, the line between threats and mere contempt, and defamation law’s parsing of facts and opinions. Technology has made online reputations persistent, searchable, replicable, and visible. Citron powerfully argues that it’s time for their creators to be accountable as well.

Yet who is the creator of an online reputation? Is it individuals or aggregators? If the first pages of Google results that show up for a query about a certain person are dominated by critics, slanderers, rumorers, and haters, have each of those individuals created her reputation online? Or should the search engine itself (and those using it) take some responsibility, and agree to “technological due process” for the person whose unflattering portrait they’ve painted and sought out?

If we are to build an economy of accountability online, I believe that the behavior of all these groups will have to change. Citron focuses on the ultimate sources of online attacks, and her rich account of the harms they create and creative legal approaches to dealing with it are commendable. I propose to complement her work with a broader examination of the way in which undeservedly bad reputations are created and maintained online.

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