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Cyber Civil Rights, Anonymity, and Free Expression:

Some of you may be interested in an online symposium that was recently held (and in which I participated) at the Concurring Opinions blog, focused on Danielle Citron's recently-published paper on "Cyber Civil Rights." Citron's point (from the Abstract of her paper) is:

Today's cyber attack groups update a history of anonymous mobs coming together to victimize and subjugate vulnerable people. The social science literature identifies conditions that magnify dangerous group behavior and those that tend to defuse it. Unfortunately, Web 2.0 technologies accelerate mob behavior. With little reason to expect self-correction of this intimidation of vulnerable individuals, the law must respond.

General criminal statutes and tort law proscribe much of the mobs' destructive behavior, but the harm they inflict also ought to be understood and addressed as civil rights violations. Civil rights suits reach the societal harm that would otherwise go unaddressed and would play a crucial expressive role. Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim's employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.

What I found most interesting was not the paper itself, but the discussion about the paper, which I found disturbing and a little depressing. As I put it in my contribution to the symposium:

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.

LarryA (mail) (www):
Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim's employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.
Keep your "but" off of my Bill of Rights.
4.20.2009 2:20pm
Alan Gunn (mail):
I suppose your "community of intelligent, thoughtful, and reasonable people" consists in large part of college graduates, many of whom, if they are young, went to colleges where offending people was treated as an offense. Over a good many years of teaching torts, I found students becoming much more willing to treat as "outrageous" conduct, "beyond what could be tolerated in a civilized society," all sorts of fairly minor slights. I even had to change a practice-exam question on intentional infliction of severe emotional distress; the original fact pattern, which I thought was a terrific case for summary judgment for the defendant, was one which few students, maybe none, would today consider anything but a slam dunk for the plaintiff. Judge Magruder's famous suggestion that a certain toughening of the mental hide was a better protection than the law could give tends to strike many of today's law students as peculiar.

Students' attitudes probably aren't much affected by what their teachers tell them they should believe. But they may be shaped to some extent by what their teachers, and fellow-students, treat as so obviously right it need not be discussed. This is especially likely to be true when holding these obviously right views shows the moral superiority of the holder to others. If we know what's right, and our government is promoting it, why do we need free speech? I share your sense of depression. It's probably going to get worse.
4.20.2009 2:55pm
c.gray (mail):

I even had to change a practice-exam question on intentional infliction of severe emotional distress; the original fact pattern, which I thought was a terrific case for summary judgment for the defendant, was one which few students, maybe none, would today consider anything but a slam dunk for the plaintiff.


Out of curiosity, what WAS this fact pattern?
4.20.2009 3:04pm
Richard Aubrey (mail):
I would add the demonstrable effectiveness of feigning offense is a learning experience.
Works best, and probably first, on campus. Obviously, the spoiled little darlings and their more sinister colleagues are taking it off campus.
4.20.2009 3:35pm
Daryl Herbert (www):
This isn't just about a bunch of Kos kidz calling up someone's employer to try to get the man fired because he dared to ask Obama a tough question at a town hall meeting.

For example, there's the case of Adam Jackson. This type of Internet-organized terrorism is real and it needs to be stopped.

Imagine if these people decided to target VC members because they didn't like something on your web site. Imagine if guys wearing hoodies followed you to your place of residence. I think you'd get the picture real fast about how this type of intimidation is bad for free speech.
4.20.2009 3:45pm
Ken Arromdee:
If you go through all the comments in that symposium it turns out that not respecting the First Amendment isn't the biggest problem. The biggest problem is that the author doesn't care about facts (See here) and has previously misrepresented the truth when discussing the subject. Examining the current paper shows that it repeats at least one of the misrepresentations from the earlier one. And nobody cares, because the conclusions are politically correct (and if there's ever a time when that term needs to be used, it's now.)

Complaining that this doesn't respect the First Amendment when it's not factually accurate is like complaining that a burglar trampled on the flowers.
4.20.2009 3:57pm
David Drake:
Daryl Herbert--

From the facts in the article, looks to me like Mr. Jackson has a pretty good case against someone or many someones for assault, property damage, extortion, slander, terroristic threats, and possibly more. And of course gathering a group together to commit a crime is a crime itself ("conspiracy")regardless of whether you use the internet, the telephone, or a table in the back room of a restaurant.

I don't know what a new law against using the internet to help commit these kinds of crimes adds. In fact, the internet would be useful to gather evidence on the perpetrators of the activities directed against Mr. Jackson.
4.20.2009 4:14pm
t-boy (mail):
One of my problems with Citron's assertion is that it perpetuates a myth (in my opinion) that I as an individual non-state actor can violate your civil rights. I have the same problem with any civil rights lawsuits against individuals or private entities. Obviously IANAL, and don't know all the precedent for this, but in essence it trades one persons rights for anothers without specific legislation.
4.20.2009 4:20pm
Alan Gunn (mail):

Out of curiosity, what WAS this fact pattern?

Originally, defendant shouted at the plaintiff, telling her to keep her brats off his property. Plaintiff, who was visibly pregnant at the time, had a miscarriage shortly afterward; many students assume causation here without even suggesting that evidence might be useful. Feminism seems not to have done much about stereotypes about delicate pregnant women. In the end, I changed it to the defendant "grumbling" something insulting toward the plaintiff; if memory serves, he called her a slut. The widespread response was still that, as it was "unreasonable" for the defendant to do that, he should pay. To be sure, students learn early on that if you say "unreasonable" often enough on a torts exam, you'll at least pass, and that, as well as sensitivity to the plight of the insulted, may contribute to the problem.

Curiously, though, some students still seem sad to learn that the prince, in the story of Sleeping Beauty, is a dirty rotten tortfeasor and not, as they had learned in the nursery, a hero. You'd think that kids today would know that you can't go around kissing sleeping women you haven't even been introduced to.
4.20.2009 4:28pm
David Drake:
Alan Gunn--

That's perhaps the saddest thing I've read today.

Well, maybe next to the article in Saturday's WSJ that William Shakespeare would only get two votes on the Supreme Court in favor of his authorship of his works.
4.20.2009 4:36pm
another anonVCfan:
This:
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.
reminded me of this:
Would any judge uphold any limit on political speech if it were not that many constitutional-law professors and news media lend their prestige and voice to such measures? It is a big mistake, however, to decide a case on the buried assumption that these self-described protectors of the First Amendment confer a reliable imprimatur. Constitutional rulings cannot safely be made on the assumption that constitutional-law professors serve the Constitution as disinterested scholars and technocrats. These professors take no oath to support the Constitution. Granting that some of them have expertise derived from long and painstaking study, we should keep in mind that many of them regard the Constitution instrumentally--the way a safecracker regards a safe.
Landell v. Sorrell, 406 F.3d 159, 178 (2d Cir. 2005) (Jacobs, J., dissenting from the denial of rehearing en banc).
4.20.2009 4:39pm
wfjag:

You'd think that kids today would know that you can't go around kissing sleeping women you haven't even been introduced to.

It's also assault, and under some states' laws, the Prince would have to register as a sex offender.
4.20.2009 6:40pm
Larry Fafarman (mail) (www):
Cyberbullying is a serious problem. A NY Times article says,

In an online shouting match that was widely reported, Kathy Sierra, a high-tech book author from Boulder County, Colo., and a friend of Mr. O'Reilly, reported getting death threats that stemmed in part from a dispute over whether it was acceptable to delete the impolitic comments left by visitors to someone's personal Web site.

Distraught over the threats and manipulated photos of her that were posted on other critical sites — including one that depicted her head next to a noose — Ms. Sierra canceled a speaking appearance at a trade show and asked the local police for help in finding the source of the threats. She also said that she was considering giving up blogging altogether.

In an interview, she dismissed the argument that cyberbullying is so common that she should overlook it. "I can't believe how many people are saying to me, 'Get a life, this is the Internet,' " she said. "If that's the case, how will we ever recognize a real threat?"

IMO some rules against cyberbullying are pretty simple: (1) No threats of physical harm; (2) No attacks on people's race, color, sex, national origin, or disability; (3) Mild condemnation of personal things that people have some control over -- e.g., religious beliefs, homosexual lifestyle (e.g., gay marriage) -- is OK.

As for tracing Internet visitors by means of IP addresses ("traceable anonymity") --

(1) Accessing and/or storing Internet visitors' IP addresses is illegal or frowned upon in Europe. [link] [link] BTW, IP address blocking is illegal in California. [link]

(2) It is often impossible to trace an originating computer -- let alone an individual -- by means of a received IP address. With some Internet service providers (ISP's), many Internet users share the same proxy IP address for communicating with the Internet. IP address blocking is discussed here.
4.20.2009 7:06pm

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