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Category: Cyber Civil Rights

5

Bullet, So Not Dodged

The question that I had been dreading came at last: “Mom, can I have a Facebook page?”  My daughter provided a strong defense: she’s 13, so she meets Facebook’s Terms of Service age requirement; she’s nearly an adult in her religion’s eyes (her bat mitzvah is in a week); past practices proves she’s responsible; and well, she feels ready.  (And I just discovered, she’s done her homework: see this Yahoo Answers! “My mom won’t let me get a Facebook page, how do I convince her?” thread that I found on my computer).

Next came the conversation.  We talked about how increasingly social media activity is part of one’s life’s biography.  Anything said and done in social network spaces becomes part of who you are in our Information Age.  Colleges may ask for your Facebook password.  Over 70% of employers look at social media data for interviewing and hiring (and sad to say, the outcomes are grim for applicants who over 60% of the time don’t get the interview or job due to social network profiles).  It’s not just what you post that speaks volumes — your social network (friends and their friends) tells some of your story for you.  There goes any control that you thought you had.  FB users often wrestle with whether they should de-friend those whose online personas don’t match their sensibilities (or the way in which they want others to perceive them).  This means that users need to keep a careful eye on their friends’ profiles (as well as ever-changing privacy settings).

That’s a lot of responsibility.  Or, as Bill Keller of the New York Times put it when he allowed his 13-year old daughter to join Facebook, he felt “a little as if I had passed my child a pipe of crystal meth.”  Beyond the potential privacy and reputational concerns that accompany social media use, an online life has other potential perils, like overuse (and thus inattention to studies, face-to-face family time, etc.) that cyber-pessimists underscore (see Nicholas Carr’s The Shallows).  And bullying, serious harassment, bigotry increasingly appear in mainstream social media in ways that kids can’t necessarily avoid (my work explores those problems, see here, here, and here, as well as terrific work by guest bloggers Ari Waldman and Mary Anne Franks).  Of course, there’s also lots of positive stuff emerging from these networked spaces.  Social media outlets like Facebook allow us to enact our personalities.  They let us express ourselves in ever-changing and expanding ways.  FB and other outlets host civic engagement as Helen Norton and I have emphasized.

I wonder, too, if my kid has a meaningful choice.  Can digital natives really stay away from social media if all of their friends socialize there?  And will employers and colleges expect that applicants partake in these activities because everyone else does?  Someday, will resisting having a Facebook profile express something negative about you?  Will it signal that you’re not socially adjusted or successful?  As Scott Peppet underscores in his work, we may be forced to give up our privacy to show that we are indeed healthy, social, smart, and the like.  That’s a lot to process, right?  I’m going to chew on this a while.  Your thoughts are most welcome!

1

Thoughts on Snyder v. Phelps and Future Cases

Thanks so much to Professor Neil Richards (who generously serves as our First Amendment guest expert) for his thoughts on Snyder v. Phelps.  This post aims to build on his insights and contemplates the opinion’s implications for cases of targeted online hate.  In Snyder, Justice Roberts, speaking for the majority, underscored that speech on public affairs “occupies the highest rung of the hierarchy of First Amendment values” and thus deserves “special protection.”  The majority contrasted speech on “matters of purely private significance,” explaining that it enjoys less rigorous First Amendment protection because restrictions on such speech  fail to threaten “meaningful dialogue of ideas” or to risk “‘self-censorship’ on matters of public import.”  Seemingly reflecting its intention to chart a wide territory for matters of public import to provide breathing speech for public discourse, the majority provided select, narrow examples of purely private speech, such as an individual’s credit report and videos of someone engaging in sexually explicit acts.  The majority found that the Church engaged in speech on public affairs because it critiqued broad policies such as the government’s stance on gays in the military (even though some of its signs did target Matthew Snyder and his family) and because the protest occurred in a “public place adjacent to a public street,” the archetype of a traditional public forum that enjoys special First Amendment protection.

The majority rejected the Snyder family’s argument that the protests constituted personal attack on private individuals because Westboro had long spoken on the subjects addressed in its picketing and because “no pre-existing relationship or conflict” existed between Westboro and the Snyders that might suggest that “Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter.”  In other words, the Court seems to be saying that Westboro’s speech did not concern a “purely private matter” because the group had long held hateful views (such as “God Hates Fags”) and because it had no personal relationship or conflict with the Snyders before the attack.  Herein lies a concern with the Court’s division of the speech universe between speech on public matters and those involving “purely private ones.  Some severely emotionally-damaging harassment of individuals stems from a perpetrator’s general hateful beliefs and involves victims who are strangers to the perpetrator.

Consider a neo-Nazi group’s online harassment of Bonnie Jouhari.  Posters on a white supremacist website targeted Ms. Jouhari, a civil rights advocate and mother of a biracial girl.  They revealed her home address and her child’s picture.  The site showed a picture of Ms. Jouhari’s workplace exploding in flames next to the threat that “race traitors” are “hung from the neck from the nearest tree or lamp post.”  Posters included bomb-making instructions and a picture of a hooded Klansman holding a noose.  Ms. Jouhari suffered headaches and anxiety, and her daughter was diagnosed as suffering from severe post-traumatic stress disorder.  With the majority’s reasoning in hand, perpetrators of similar attacks might insist that intentional infliction of emotional distress claims should fail because they had long held discriminatory views, which can be understood as political objections to anti-discrimination laws, and had no previous contact with the individuals that they targeted.  They might contend that such attacks constituted protest on a matter of public concern, not a purely private matter deserving less First Amendment protection.  Justice Breyer, in concurrence, alluded to just such a problem.  Breyer asked: “suppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern.  The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means.  And in some circumstances the use of certain words as means would be similarly unprotected.”

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6

A Few Preliminary Thoughts on Snyder v. Phelps

This morning the Supreme Court handed down its decision in Snyder v. Phelps, No. 09-751, holding that a military funeral protest by the Fred Phelps’ Westboro Baptist Church was protected by the First Amendment, and did not give rise to civil liability under the state law torts of intentional infliction of emotional distress (IIED), invasion of privacy, or civil conspiracy.  The case has generated a lot of media attention, in part because it offered a chance to see whether the Roberts Court would continue its trend of retaining or expanding strong First Amendment protections.  (In United States v. Stevens 130 S.Ct. 1577 (2010), which I blogged about here last year, the Court claimed fidelity to the existing structures of First Amendment law, even though it seems to have expanded corporate speech protections in Citizens United 130 S.Ct. 876 (2010), and cut back on incitement doctrine in Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010)).  Snyder v. Phelps is also notable because the defendant, Fred Phelps, is possibly the most unappealing First Amendment claimant that has made it to the Supreme Court.  In an opinion by Chief Justice Roberts, the Court upheld the funeral protest, essentially holding that speech on matters of public concern made peaceably in a public space receives protection even if it causes significant psychological and emotional harm.  As the Chief Justice concluded:

Speech is powerful.  It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain.  On the facts before us, we cannot react to that pain by punishing the speaker.   As a Nation we have chosen a different course—to protect even hurtful speech on public issues to  ensure that we do not stifle public debate.  That choice requires that we shield Westboro from tort liability for its picketing in this case.

There is a lot to say about this important decision, but a few preliminary observations struck me as especially interesting.  First, the holding in the case seems to be correct, at least as a matter of fidelity to existing First Amendment precedent.  In Falwell v. Flynt, 485 U.S. 46 (1988), the Court held that IIED suits by public figures had to satisfy the protective actual malice standard of New York Times v. Sullivan, 376 U.S. 254 (1964), continuing the trend of First Amendment cases protecting speech on matters of public concern even if they caused emotional injury.  Some observers thought that Snyder was a chance for the Court to halt the trend, since Snyder, the plaintiff in this case, was merely the father of an ordinary soldier killed while serving in Iraq and not a public figure.  What’s interesting about today’s opinion is that the Court sidestepped this question entirely, holding that the nature of the speech was a matter of public concern and thus protected.  The Court held that the Church’s rather distasteful message – that God hates America and is punishing it for its tolerance of homosexuality, particularly in the armed forces – was principally a commentary on public affairs rather than a private act of harassment against the Snyder family.  Again, this is consistent with the broad theme of modern First Amendment law that speech on matters of public concern (especially politics) is entitled to very strong protection, and cannot be regulated or made the subject of civil liability even when (like this speech) it is both offensive to many and causes significant harm.

The second aspect of this case that’s notable is what it says about tort liability and free speech.  Dan Solove and I have argued (here) that torts are most threatening to the First Amendment when they allow the state to control the content of public debate.  Snyder is certainly consistent with that theory, and it seems to all but rule out liability for IIED when the speech at issue is about a matter of public concern.  The Court also ruled that the invasion of privacy (intrusion upon seclusion) claim for funeral disruption violated the First Amendment because the speech was protected, and the captive audience doctrine did not save Snyder’s claim.  The invasion of privacy claim is odd, because it seems that the district court in this case mis-applied Maryland law.  Although the intrusion upon seclusion tort would be violated (and probably could to impose liability constitutionally) if a protestor disrupted a funeral by entering a church or menacing a gravesite, those facts weren’t present here.  (In fact, the concurrence by Judge Shedd at the Fourth Circuit level made exactly this point, but the point wasn’t preserved on appeal).  So in reality, the invasion of privacy claim boils down to something like “you hurt my feelings when you picketed the funeral from a public place”; in other words, a classic IIED claim.

There are thus lots of questions about the relationship between tort liability and free speech that the Court refused to decide and remain open.  For instance, the Court tells us that speech on “matters of public concern” is protected, which it defines as “a subject of general interest and of value and concern to the public.”  But it doesn’t define private speech, so we don’t really know how broad the “public speech” category is.  Presumably, because the Court uses a kind of “enquiring minds want to know” standard, it’s a rather broad category, but it’s hard to be sure from this opinion.  The Court does hint in a couple of places that personally directed harassment, speech to a small number of people, and the publication of someone else’s sex tape would be “private speech” and more readily amenable to regulation based on their content.  In addition, the Court refused to rule on a second IIED claim, one arising from a post on the Church’s website that described the funeral protest in detail.  The court noted only that “an Internet posting may raise distinct issues in this context,” and declined to rule on the question.  This allows the possibility that the Court could create a separate category of cyber-harassment, though given the overall tenor of the opinion, I think this possibility is unlikely to occur in practice.  It is interesting to see the Court treading warily in the Internet speech context, however.

The third notable aspect of this case is Justice Alito’s dissent.  Last year in Stevens, he dissented from the Court’s protection of animal cruelty videos, apparently on the ground that certain images are so horrible that society can regulate them.  Today, he also seemed outraged by the emotionally harmful nature of the Church’s protest, and would have allowed the state to regulate the protest by holding that the tort actions weren’t protected by the First Amendment.  Alito seems willing to approve a per se rule that funerals call for special sensitivity and special protection against “emotional assaults.”  But reading this opinion together with his Stevens dissent, it appears that Justice Alito is the most willing member of the current Court to allow regulation of speech based upon its morally objectionable nature or its emotionally harmful content.  It will be interesting to see how he rules the next time the Court hears a hate speech case, if only to test his fidelity to this principle.  If his vote in that future case is consistent with his vote today, Justice Alito may be the best friend of anyone who seeks a broader protection against hate speech and other words that wound.

Finally, although the case is something of a victory for orthodox free speech theory, there is one note of concern for free speech advocates, which is the opinion’s toleration of “free speech zone” theory.  The opinion notes with approval that the funeral protest took place from a free speech zone from behind a protective fence, and notes at the end that even though Phelps’ speech was protected, it would certainly be amenable to possibly aggressive time, place, and manner restriction.  If, as Tim Zick suggests in his excellent recent book Speech Out of Doors, spatial tactics have become the new frontier of free speech protection, Snyder v. Phelps possibly moves us even further in that direction, for all of its protection of the funeral protest at issue.  So the real message to states from Snyder v. Phelps might be not that lots of speech is protected, but as a blueprint for ways to regulate lots of speech in the future.

2

Super on Egypt and the Trajectory of Civil Rights Movements

My colleague David Super has an insightful op-ed in today’s Baltimore Sun entitled “In Egypt, Treading the Path of Civil Rights.”  Many of you know David’s important scholarship, which reconstructs an intellectual framework for anti-poverty law (see here, here, here, here, here, here, and here).  Here is his superb op-ed:

These opportunities come once in a generation, social movements whose cause is so manifestly just, and whose potential is so transformative, that they rise above the clutter of ordinary politics. The civil rights movement led by Martin Luther King, Cesar Chavez and others inspired a generation as it overcame Klansmen, brutal sheriffs and growers’ thugs. Two decades later, we watched in awe as the brave people of Eastern Europe brought down one repressive communist dictatorship after another. Over the past three weeks, millions of Egyptians matched the bravery of these visionaries.

These movements have a palpable continuity. The civil rights movement refuted Soviet propaganda that free societies are incapable of social justice. Likewise, the people of Tunisia, Egypt and other Middle Eastern countries find inspiration in the popular revolutions that brought down communism. But they are also heirs of King and Chavez: As ubiquitous as the slogans against the regime have been calls of “Peaceful!” and calls for giving voice to the poor and unemployed.

The contrast between Egyptians’ jubilation over President Hosni Mubarak‘s departure and the trepidations expressed in the U.S. and elsewhere is disappointing. Some seem eager to see the military preserve the oppressive regime that former generals Mubarak and Vice President Omar Suleiman led. This would be tragic. Parallels from the civil rights movement and Eastern Europe’s liberation suggest these fears are unfounded. Read More

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Salutary Legislative Efforts to Permit Pseudonymous Litigation

Cyber harassment often invades victims’ privacy by exposing their sensitive personal information, revealing photographs, and the like.  Because search engines reproduce information cached online, time’s passage cannot alleviate their reputational, emotional, and physical damage.  Unlike newspapers, which were once only easily accessible in libraries after their publication, search engines now index all content on the web, and can produce it instantaneously.  Victims must live with digital privacy invasions that are deeply humiliating, reputation-harming, and potentially dangerous, as well as searchable and accessible from anywhere, and by anyone, in the world.  Often, the information is taken out of context, producing a distorted and damaging view of the person.

While lawsuits can serve to redress victims for these harms, they also risk compounding the severity of these privacy problems.  Law often permits victims to sue perpetrators for intentional infliction of emotional distress, invasion of privacy, and defamation.  But victims typically must bring such civil lawsuits in their own names.  As a result, the complaints, which are available to the press and interested individuals, further publicize the cyber harassment, exacerbating the privacy harms suffered by victims.  In turn, victims may refrain from pursuing their harassers in court not because they lack legitimate claims but because they fear exposing themselves to further privacy invasions.

Hawaii’s proposed Senate Bill 288, if enacted, could be invoked to combat this problem when the online harassment occurs in domestic abuse cases.  The bill would permit pseudonymous papers “in cases of alleged domestic abuse where the alleged victim has already received an order of protection, temporary restraining order, or protective order against the accused party.”  The bill covers cases where pseudonymous filing is “reasonably necessary to protect the privacy of the alleged victim and will not unduly prejudice the prosecution of the defense.”  The proposed legislation permits victims of domestic abuse, including cases involving online harassment, to bring law’s coercive power to bear against perpetrators.  Because the bill allows courts to weigh the victim’s interest in privacy against the public’s interest in disclosure, it aims to protect privacy and transparency.  Disappointingly, however, the bill only covers cases involving domestic abuse, thus failing to reach instances of online harassment involving privacy invasions where victims may refuse to sue their attackers for fear of publicity.


5

Wikipedia’s Efforts to Close its Gender Gap

Time magazine recently did a true-to-form story on Wikipedia, where guest editors (and our very own featured author) Jonathan Zittrain (see here too), Robert McHenry, Benjamin Mako Hill, and Mike Schroepfer assisted in writing/editing/re-writing a feature entitled Wikipedia’s “Ten Years of Inaccuracy and Remarkable Detail.” As the piece explained, Wikipedia just celebrated its 10th birthday.  The site has 17 million entries in more than 250 languages, quite a feat given that Encyclopedia Brittanica only has 120,000 and only in English.  The Time wiki-like piece notes that Wikipedia has a “diverse, international body of contributors.”

According to The New York Times, most contributors are male.  More specifically, “less than 15 percent of its hundreds of thousands of contributors are female.”  This, in turn, has skewed the gender disparity of topics and emphasis.  Wikimedia’s executive director Sue Gardner explains that topics favored by girls such as friendship bracelets can seem short when compared with lengthy articles on something boys typically like such as toy soldiers or baseball cards.  The New York Times notes that a category with five Mexican feminist writers might not seem so impressive when compared with 45 articles on characters in “The Simpsons.”

Why is this so?  Joseph Reagle, a fellow at the Berkman Center for Internet and Society at Harvard and author of “Good Faith Collaboration: The Culture of Wikipedia,” explains that Wikipedia’s early contributors shared “many characteristics with the hard-driving hacker crowd,” including an ideology that “resists any efforts to impose rules or even goals like diversity, as well as a culture that may discourage women.”  He notes that adopting an ideology of openess means being “open to very difficult, high-conflict people, even misogynists.”  The demographics of Wikipedia’s editors may also stem, in part, from the tendency of women to be “less willing to assert their opinions in public.”

How Wikipedia is now, and has been, responding is worth noting.  Sue Gardner told the Times that she hopes to raise the share of women contributors through subtle persuasion and outreach to welcome newcomers to Wikipedia.  Dave Hoffman and Salil Mehra’s terrific piece Wikitruth Through Wikiorder demonstrates that the site has already fostered efforts to create a more inclusive environment.  As Hoffman and Mehra explain, Wikipedia has an Arbitration Committee whose volunteer members rule on disputes and set forth concrete rules on how users should behave.  The Arbitration Committee has sanctioned users who make homophobic, ethnic, racial or gendered attacks or who stalk and harass others.  According to Hoffman and Mehra’s empirical study, in cases when either impersonation or anti-social conduct like hateful attacks occur, the Administrative Committee will ban the user in 21% of cases.  Wikipedia’s more than 1,500 administrators, in turn, enforce those rules.  Wikipedia also permits users to report impolite, uncivil, or other difficult communications with editors in its Wikiquette alerts notice board.

5

The Ugly Persistence of Internet Celebrity

Many desperately try to garner online celebrity.  They host You Tube channels devoted to themselves. They share their thoughts in blog postings and on social network sites.  They post revealing pictures of themselves on Flickr.  To their dismay though, no one pays much attention.  But for others, the Internet spotlight finds them and mercilessly refuses to yield ground.  For instance, in 2007, a sports blogger obtained a picture of a high-school pole vaulter, Allison Stokke, at a track meet and posted it online.  Within days, her picture spread across the Internet, from message boards and sport sites to porn sites and social network profiles.  Impostors created fake profiles of Ms. Stokke on social network sites, and Ms. Stokke was inundated with emails from interested suitors and journalists.  At the time, Ms. Stokke told the Washington Post that the attention felt “demeaning” because the pictures dominated how others saw her rather than her pole-vaulting accomplishments.

Time’s passage has not helped Stokke shake her online notoriety.  Sites continuously updated their photo galleries with pictures of Stokkes taken at track meets.  Blogs boasted of finding pictures of Stokke at college with headings like “Your 2010 Allison Stokke Update,” “Allison Stokke’s Halloween Cowgirl Outfit Accentuates the Total Package,” and “Only Known Allison Stokke Cal Picture Found.”  Postings include obscene language.  For instance, a Google search of her name on a safety setting yields 129,000 results while one with no safety setting has 220,000 hits.  Encyclopedia Dramatica has a wiki devoted to her (though Wikipedia has faithfully taken down entries about Ms. Stokke).

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Outsourcing & Tracking the Service Sector

A recent article on Kinect hackers mentions the ease with which the new Microsoft game platform can drive real world devices:

When Kinect appeared on store shelves, Adafruit Industries, an online seller of DIY electronics kits, offered $1,000, then $3,000, to the first person who could analyze Kinect’s innards and share the information with developers at large. It took all of six days before the Kinect’s secrets were cracked. . . . Geeks around the world set to work. One strapped a Kinect to a Roomba, letting him steer the robot vacuum cleaner by waving his hand. Others used Kinect to control World Of Warcraft characters with their bodies rather than keyboards.

Cool, right? Well, perhaps not so much. A website based on the film “Sleep Dealer” spells out a business model for using technology to further stratify the labor force:

The 20th century generated the tools to globalize and maximize production. Computers simplified tasks, the Internet connected every human being, robots climbed stairs, vacuumed carpets and pumped hearts. There was only one missing piece, a link that could tie them all together, and Cybracero Systems discovered it: We call it THE NODE®. Through basic nodes implanted in the wrists, ankles and eyes of workers, they are able to connect to and control human-like machines in the first world. In this way, any job, even manual labor, can be accomplished.

Some call it “unbelievable”. We call it “Telepresence”. Through Telepresence, a chauffer in Tijuana nodes up and drives a cab through the streets of London. A nanny in Tijuana babysits a toddler in Beverly Hills. A crew from Tijuana raise a skyscraper in Chicago. Soon, Telepresence will be globalized.

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Advancing the Fight Against Cyber Hate with Greater Transparency and Clarity about Hate Speech Policies

Today, online intermediaries voluntarily seek to combat digital hatred, often addressing hate speech in their Terms of Service Agreements or Community Guidelines.  Those agreements and guidelines tend to include vague prohibitions of hate speech.  The terms of service for Yahoo!, for instance, requires users of some services to refrain from generating “hateful or racially, ethnically or otherwise objectionable” content without saying more.  Intermediaries can advance the fight against digital hate with more transparency and clarity about the terms of, and harms to be prevented by, their hate speech policies, as well as the consequences of policy violations.  With more transparency and clarity, intermediaries can make behavioral expectations more understandable and users can more fully appreciate the significance of digital citizenship, see here, here, here, and here.  The more intermediaries and users understand why a particular policy prohibits a certain universe of speech, the more likely they can then put into practice, and adhere to, that policy in a way that achieves those objectives.

Before seeking to provide guidance on how intermediaries might do that, it is important to recognize that efforts to define hate speech raise at least two significant challenges.  First, many disagree over which, if any, of the harmful effects potentially generated by such speech are sufficiently serious to warrant action.  Second, controversy also remains about the universe of speech that is actually likely to trigger harms deemed important enough to avoid.  So, for example, even if an intermediary defines hate speech as that which tends to incite violence against targeted groups, how do we determine which speech has the propensity to do that?  Much of this lies in identifying the factors relevant to making such causal predictions.  In Intermediaries and Hate Speech: Fostering Digital Citizenship for the Information Age (forthcoming BU Law Review 2011), Helen Norton and I don’t pretend that that we can make hard choices easy and recognize that intermediaries’ choices among various options may turn on a variety of issues: their assessment of the relative costs of hate speech and its constraint; empirical predictions about what sort of speech is indeed likely to lead to what sorts of harms; the breadth of their business interests, available resources, and the like; and their sense of corporate social responsibility to foster digital citizenship.  Intermediaries’ choices on how to define hate speech and the harms that they seek to avoid — however difficult — can and should be made in a more principled and transparent way. Read More

2

The Offensive Internet

Harvard University Press recently published The Offensive Internet: Speech, Privacy, and Reputation, a collection of essays edited by Saul Levmore and Martha Nussbaum.  Frank Pasquale, Dan Solove, and I have chapters in the book as do Saul Levmore, Martha Nussbaum, Cass Sunstein, Anupam Chander, Karen Bradshaw and Souvik Saha, Brian Leiter, Geoffrey Stone, John Deigh, Lior Strahilevitz, and Ruben Rodrigues.  Stanley Fish just reviewed the book at New York Times.com.