Hate Crimes in Cyberspace

by Danielle Keats Citron

Harvard University Press, 2014

You meet someone and strike up a relationship. It deepens, and as you begin to feel new levels of intimacy, your natural everyday inhibitions weaken and fall away. You both begin to experiment with new demonstrations of trust. Cellphone cameras are always handy; erotic photos seem like a natural, playful gambit - one prelude among many to the long relationship for which you're both hoping.

Then things go wrong, as things so often do. Bitter words are exchanged, and there's a bad breakup. And where once, in the pre-Internet, pre-reality TV age, a combination of common decency and mortification would have consigned those erotic photos to the basement incinerator or a box at the bottom of the closet, now there's a new kind of third act to the old familiar drama — and a perhaps-old kind of shamelessly petty vindictiveness poised to reach places it could never reach before. Now, cyber attacks such as "revenge porn" are not only possible but nauseatingly prevalent. Those erotic photos — and the names, home addresses, Facebook pages, and cellphone numbers of the people in them — can now be disseminated in a public forum that didn't even exist back in 1990. And thanks to the single most popular online activity of them all — Google searching — all that information can be accessed easily by anybody armed merely with an individual's name.

As Danielle Keats Citron points out in her eloquent and discussion-setting book, Hate Crimes in Cyberspace, the problem of "revenge porn" and other kinds of cyber-attacks is not one that can be solved or even addressed by offering all parties involved a sarcastic snicker about exercising better judgement. Before she gets into the stark details and statistics of her subject, Citron (who enjoys the daunting job description of "Lois K. Macht Research Professor of Law at the University of Maryland Francis King Carey School of Law") skillfully lays the wider groundwork:

The Internet, ever bound up in our lives, is governed by society's rules. Just as television, newspapers, workplaces, and coffee shops can bear the weight of regulation, so too can online spaces and tools. Although the Internet affords new possibilities for interaction, creativity, and productivity, it is not a hermetically sealed space with its own norms. Life online bleeds into life offline and vice versa.

She's very clear about the actual, practical damages that bleeding of life online and life offline can have. The vast majority of prospective employers (concentrated in but not exclusive to the "white collar" sector) do some kind of Google searching on prospective employees, and since, as Citron points out, studies tend to indicate that most of those Google searches have results that work against the prospective employee, what's on the Web about you can have very real consequences. It's not just mockery; people don't get hired. People get fired.

The initial reaction to such a situation, in some quarters (and in virtually all of the Troll Kingdoms known as "Comments sections"), is a kind of real-world laissez-faire: the Internet is a bytes-and-pixels version of the Wild West, a place where there might be nominal laws, but where every individual is ultimately responsible for their own safety, and where they're also at the mercy of any nearby bullies. "Revenge porn" websites know exactly what they're doing: they aggregate and display your extremely sensitive and personal pictures and information knowing full well you'll be desperate for them to remove it, and they charge you hefty fees in order to make the embarrassments and threats go away. It's plain-text blackmail, and yet only two states in the United States — the odd-couple pairing of California and New Jersey — have laws that make any part of cyber-attacking somebody illegal, and as Citron argues, even those laws don't really go far enough.

Her book is a bucket of cold water dumped on any idea that this might be a case of protected free speech. And she's entirely right: things said or actions taken specifically to blacken the reputation of another person (to say nothing of outright incitement, like posting somebody's phone number, workplace, and home address alongside a guarantee that they like to have sex for money) are not protected free speech. Lying about somebody in a public forum isn't protected free speech. This isn't a question of free speech but of harassment (Citron states survey figures indicating that this is a hugely disproportionate problem for women), and our author passionately points out that laws already exist in this area:

Criminal libel laws that punish intentionally or recklessly false statements are constitutional. Although cyber stalking and cyber harassment statutes do not specifically regulate lies, cyber stalking convictions have been upheld in cases where the defendants' online abuse involved unprotected defamation ... If defamatory statements about the law student, revenge porn victims, and the tech blogger were posted with knowledge that they were false or with recklessness as to their truth and falsity, they would support the constitutionality of criminal stalking or harassment charges.

"The notion that cyber harassment is trivial is widespread," Citron writes. "A cyber civil rights legal agenda is essential to shift our cultural attitudes." Hate Crimes in Cyberspace is the most cogent clarion call for that new civil rights agenda yet published.