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Category: Cyber Civil Rights

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Stanford Law Review Online: Privacy and Big Data

Stanford Law Review

The Stanford Law Review Online has just published a Symposium of articles entitled Privacy and Big Data.

Although the solutions to many modern economic and societal challenges may be found in better understanding data, the dramatic increase in the amount and variety of data collection poses serious concerns about infringements on privacy. In our 2013 Symposium Issue, experts weigh in on these important questions at the intersection of big data and privacy.

Read the full articles, Privacy and Big Data at the Stanford Law Review Online.

 

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Probabilistic Crime Solving

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.

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UCLA Law Review Vol. 60, Discourse

Volume 60, Discourse
Discourse

Reflections on Sexual Liberty and Equality: “Through Seneca Falls and Selma and Stonewall” Nan D. Hunter 172
Framing (In)Equality for Same-Sex Couples Douglas NeJaime 184
The Uncertain Relationship Between Open Data and Accountability: A Response to Yu and Robinson’s The New Ambiguity of “Open Government” Tiago Peixoto 200
Self-Congratulation and Scholarship Paul Campos 214
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Why We Need a Federal Criminal Law Response to Revenge Porn

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.

Read More

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Blaming the Victim: Been There Before

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.

 

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Adventures in Victim Blaming: Revenge Porn Edition

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 More

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Revenge Porn Site Operators and Federal Criminal Liability

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 hereAnn 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.

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The Importance of Section 230 Immunity for Most

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 More

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Revenge Porn and the Uphill Battle to Pierce Section 230 Immunity (Part II)

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 More

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Revenge Porn and the Uphill Battle to Sue Site Operators

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 More