Many good people have written about the problem of cyber-harassment, including legal genius Danielle Citron. Her best-known magnum opus might be the impressive article Cyber Civil Rights. Her similarly themed “Civil Rights in Our Information Age” is included in the book The Offensive Internet. I add my voice below:
Follow the money and change the law. Section 230 of the so-called Communications Decency Act of 1996 is at the heart of the problem. It gives telecom companies bulletproof immunity from lawsuits by victims of online harassment, and requires the companies to do absolutely nothing! This is a case of regulatory capture. It would be possible to rewrite the law, finessing the language so that companies who profit by drawing eyeballs to hateful content may bear some liability under some circumstances (such as when they ignore repeated complaints from victims!). Once companies like Twitter and Yahoo face potential liability for online harassment, they’ll miraculously discover the resources and means to minimize such harassment. Free speech will not disappear from the Internet, but discussions will be more civil, which is sorely needed.
Today the Internet is (in practice) a public accommodation, but is not treated as such by law. Change the law so that virtual spaces where people congregate are subject to public accommodation law. Amend civil rights laws to explicitly outlaw harassment on the basis of gender, sexual preference, and religion. This is a women’s issue, but not exclusively so. Many minorities are routinely harassed on the Internet. Minority victims often don’t report incidents for fear that police may harbor the same prejudices as the harassers.
While law enforcement may have limited resources and can’t deal with every single harassing tweet, the Justice Dept. could make a few high profile sweeps of serial harassers, and draw media attention to arrests and convictions. It could send a clear message that if you violently threaten people online, you may be caught and punished.
Law enforcement needs to educate rank-and-file officers about cyber-harassment, and to send female officers to assist female victims whenever possible, as is often done with rape complaints. Likewise, where the victim is a member of a minority, the responding officer should ideally have received some sensitivity training in minority issues.
Early education is way behind the curve. In an increasingly diverse society where people also spend much of their time online, we need early education curricula which teach children good people skills, like how and why to value each person and treat them with respect and kindness, and the do’s and don’t’s of Internet behavior, including specific prohibitions against online stalking and harassment.
As Netizens, we also need to stop perpetuating the myth that the least smitch of regulation will cause free speech on the Internet to come to a screeching halt. The truth is that the Net consists of many neighborhoods — some more mainstream and respectable, others more marginal and reflecting a higher degree of illicit activity. All types of speech can be found somewhere on the Internet. This would continue to be true even if those U.S. companies now blaring explicit hate speech enjoyed less lavish legal immunity. It’s helpful to recognize that the CDA is itself a type of artificial regulation of the Internet which is corporation-friendly, consumer-hostile, and counterintuitive. In real life, people are responsible for acts of negligence, and for knowingly facilitating threats of violence, e.g. by holding the megaphone for the person making the threats.
What burns me is the “mainstreaming” of hate on Yahoo and Facebook. Yahoo in particular has been openly coddling hate groups and giving them a happy home for at least 15 years. See Lisa Guernsey, New York Times, Mainstream Sites Serve As Portals To Hate. See also feminist law professor Ann Bartow’s analysis of Barnes v. Yahoo here. (Why does Yahoo burn me more than Twitter? Because the presence of organized hate groups at static locations on Yahoo over a period of years requires the explicit cooperation of Yahoo management.)
As a fan of bad 50’s sci-fi, I’ve always loved the line in Ed Wood’s Plan 9 From Outer Space that goes: “One thing’s for sure: Inspector Clay is dead, murdered, and somebody’s responsible!” On the Internet, people get “virtually murdered” every day, yet nobody’s responsible. Everybody’s wearing a paper bag over their head. Companies like Yahoo aggregate hate messages along with weather reports, stock quotes, celebrity gossip, cute pics of kittens with yarnballs, comic strips, and ads from Fortune 500 companies. The hateful and threatening content is delivered in an integrated format where it sits alongside mainstream content, sending the message that hate is something mainstream, something to be passively accepted, even embraced as a new form of entertainment. Is that who we are as a people? Is hate speech targeting women and minorities the latest fun entertainment craze, and is Yahoo cashing in with no sense of moral compunction? I would not hesitate to call Yahoo a bad corporate citizen.
One of the many problems with the so-called Communications Decency Act of 1996 is that it makes a naïve and simplistic distinction between ISPs and content providers. Despite delivering what certainly looks like content to the end user, Yahoo is not generally treated as a content provider, and therefore enjoys immunity for the complete, published pages it serves up from aggregated sources. With its recognized brand, Yahoo draws eyeballs to the content, and profits by selling ads. Yahoo knowingly provides a huge megaphone to hate groups, and is responsible for mainstreaming hateful content by aggregating it with familiar types of news and entertainment. Yahoo reaps the profits from this enterprise, but under Section 230 of the Communications Decency Act, Yahoo enjoys iron-clad immunity from lawsuits by the victims of hatred and harassment on its service. This injustice will only end when people care enough to make it end.
The money in politics is part of the problem, since the big telecom companies can afford to pay the politicians to write the law the way they want it written. As Netizens, we also bear some responsibility for stubbornly clinging to the position that any regulation whatsoever is bad. The Internet may once have been a weak child, but has grown into an incredibly strong, robust (if emotionally stunted) adult. Hateful and threatening content will always be available on the Internet; but with carefully crafted regulation, it will no longer be welcome on Yahoo and other mainstream services, and will no longer fit neatly into those companies’ business plans. It will no longer be desirable to Yahoo as free content to draw eyeballs and run ads, because of the potential liabilities.
Instead, people who want to publish (or read) hateful and threatening content will increasingly have to go to sites which specialize in such content. Just as pr0n is largely relegated to the pr0n ghettoes of the Internet, hateful and threatening content would be largely relegated to the hate ghettoes. Though not perfect, that’s a compromise which would represent a distinct improvement over the present situation, a “de-mainstreaming” of hate. What do you think?
Apart from revising Section 230 of the CDA, another type of action involves getting state and federal laws passed which criminalize revenge pr0n. Law professors Danielle Citron and Mary Anne Franks having been active and successful in this area. This is extremely helpful, but still leaves most types of harassment unaddressed. A strategic question is whether the piecemeal criminalization of known types of Internet harassment stands the best chance of protecting victims and achieving social change. This might be true if one sees little chance that Congress will ever revisit the problematic language of Section 230.
Still, it seems that no matter what form of Internet harassment people are subjected to (and there are many variations), Section 230 typically provides site owners with bulletproof immunity. Despite the progress in criminalizing revenge pr0n, I still think we need a long-term movement to rewrite Section 230 so that it no longer reflects naïve idealism and regulatory capture. I wonder which acts as a greater deterrent to shareholders of a company like Yahoo: the concern (perhaps minimal) that an employee might be found guilty of a misdemeanor, or the concern that the company might be held liable for civil damages. Am I wrong to think that the greater fear is payouts to consumers who were harmed by the company’s action, inaction, willful negligence, or deceptive terms of service? If so, revising Section 230 may provide a stronger deterrent than enacting revenge pr0n laws.
The other problem with a piecemeal approach is that even among oppressed groups, some are more powerful than others and more able to rally political support for legislation crafted to protect their interests. The danger, then, with piecemeal legislation is that we could end up with a collection of sacred cows, while the sheep are still left to the wolves. Revising Section 230 is, in theory, a more equalitarian solution which would help a wider range of victims, including religious and ethnic minorities.