“Cyber Civil Rights” Prioritizes Civility Over Rights

By J. DeVoy

In Danielle Citron’s paper Cyber Civil Rights, which she discussed at Denver Univeristy’s “Cyber Civil Rights” Symposium (summarized by Eric Goldman here), her contempt for existing First Amendment freedoms could not be clearer.  Though anonymous speech can shock and offend people, Citron proposes eliminating it completely.

First, Citron advocates the elimination of § 230 immunity under the Communications Decency Act of 1996 as it applies to certain claims against Internet Service Providers (ISPs).  Additionally, she envisions a regime where ISPs must keep records of the IP addresses assigned to their subscribers in perpetuity.  Second, the reason for this shift in policy arises from the reported victimization of women by online harassers.  Can’t men be victims too?  I’ll consider these propositions in turn.

I.      Citron’s proposed legal changes are asinine, impractical, or both.

The elimination of § 230 immunity for ISPs, however limited in scope, opens a veritable Pandora’s box of new problems for services providers.  If consumers think they pay too much for internet service now, they should just wait to see how they’ll internalize the costs of almost limitless liability for defamation, privacy invasion, and intentional and negligent infliction of emotional distress claims – even when meritless!  Inevitably someone has to pay the legal bills to fight these claims, and the ISP isn’t going to sacrifice profits doing so.

At Concurring Opinions, Michael Froomkin believes that allowing this framework to become law entails a value judgment.  He’s right, but for a different reason: allowing these claims is in itself a value judgment weighing emotional damages over fiscal ones.  Why not repeal § 230 in its entirety so that ISPs have distributor liability for violations of intellectual property laws by others, such as sharing movies and music?  The costs of insuring against such liability would be explosive.  Still, restricting the repeal of § 230 only to harassment-based claims is unfair to entities that lose millions of dollars in calculable financial damages through piracy and have no recourse against the ISP.

For the law to rescind any § 230 protection for ISPs would contradict the entire point of the internet.  The purpose of § 230 was to allow operators, including ISPs, to provide resources to the public without regard for how irresponsibly it would use them.  Similarly, ISPs will be loath to expand the reach and range of internet coverage when adding new subscribers will multiply their liability.  Swaths of the country have limited or no access to high-speed internet, a reality lost on the elites.  Increasing the ISPs’ costs of doing business with unsophisticated consumers will obstruct the end user’s internet access.

Moving to Citron’s second proposal, “traceable anonymity” is an oxymoron; if someone is traceable, he or she is not truly anonymous.  Many ISPs currently retain users’ IP addresses for a period of several months based on a provider’s values and price tolerance.  In the case of online harassment, the effect of the speech is almost immediate, obviating the need to have an eternal record of one’s ISP history.  The reality that any injured party’s legal claim is curtailed by a statute of limitations further weakens the case for a permanent record of IP addresses.  The wrongs Citron fears are quickly and easily ascertained; there is no need to keep a record of IP addresses like an individual’s medical history, retroactively looking for problems over years and decades.

Finally, intermediary technology can easily frustrate the goal of a permanent IP address record. Proxy servers for programs such as Tor and Ghostsurf can be located overseas, outside the reach of American jurisdiction, and mask a user’s IP address behind several layers of proxies.  In theory, this technology makes the speaker untraceable.  More laws would be needed to govern this behavior, further micromanaging internet use, or we have to admit that this kind of conduct is unmanageable.  Maybe shame can work.  Given the gender disparity of online harassment Citron cites, perhaps those concerned about it can frame the use of proxy servers as unmasculine and geeky.

II.    The First Amendment is, and should remain, gender-neutral.

At its core, this debate exists because women report online harassment more often than men.  Equalists, firm in their denial that people of different genders or backgrounds could ever be dissimilar in any way, naturally find this repugnant and attribute it to superstructures of power, hate, resentment and gender struggle that can only be defined in academic terms.  In reality, the causes may be simpler and should be subject to more rigorous research before becoming the basis of new law.

First, some assume that female harassment online is underreported.  To the contrary, it could be over-reported.  Surely no woman would wrongly accuse men of wrongdoing. Nope, never ever.  On the other side of this coin, why isn’t there concern about men underreporting their online harassment?  Because men silently struggle with smear campaigns against them in real life, there is reason to believe it doesn’t happen online and, as in real life, continues without discussion (let alone a report to law enforcement).

The second core assumption is that all, or even most, harassment is male on female.  While Citron cites studies that show female web identities are harassed more often, there is no way to tell that all of these harassers are male.  Though it may stun feminists, some women really do enjoy tearing down other women, and may take advantage of anonymity’s veil to do so.  In the case of men, their harassers may be other men or even females who revel in the torture and emasculation of lesser men.  These avenues’ lack of exploration undermines the validity of the assumption that online harassment is solely about men’s power over women.

Even if these assumptions are true, this is a reality of having free anonymous speech.  While nobody is condoning online harassment, discomfort in the face of unpopular speech does not render it inappropriate.  If it did, the outcomes of People v. Flynt, New York Times v. Sullivan and Pickering v. Board of Education would have all been rather different.  Perhaps this discussion would be changed if the First Amendment was a civil rights statute.  Even then it would be unseemly to prioritize the harm done to one group over another when both are affected, as Citron notes both men and women suffer from online harassment.  The First Amendment is not a statutory enactment, however, and it holds much greater regard in our legal system.  As there is no legal basis for limiting constitutional protections because one group has its feelings hurt more than the other, Citron’s proposal would be an improper encroachment on the First Amendment.

III.  Conclusion

In all, Citron’s proposal is an intrusion on the First Amendment for the sake of protecting people’s feelings.  This is a thoughtful but misguided goal.  Inasmuch as I dislike having my feelings hurt, the purpose of the First Amendment is to allow people to say what they want, anonymously if they wish, within the bounds of the law.  When Anonymous turns an internet persona like Paul Fetch into a “lolcow,” they are exercising their rights to disagree with his speech and have violated no law, however much Fetch may dislike it.  Prospectively limiting this right based on under-researched gender bogeymen is unconscionable and unconstitutional.  When exercised legally, the right to speech – and lulz – is and should be unfettered.

Jay DeVoy is a third-year law student at the University of Wisconsin Law School. There, he is the President of his Federalist Society chapter, on the executive board of the Wisconsin Moot Court board, and a member of the Wisconsin International Law Journal. DeVoy previously has held editorial positions with various student newspapers and dedicated his time to raising awareness of First Amendment and free market issues.

12 Responses to “Cyber Civil Rights” Prioritizes Civility Over Rights

  1. Joe says:

    I don’t think it would be fair to hold ISPs responsible for what people say on their services. That would be like wanting to hold a wall responsible for the offensive graffiti someone painted on it.

  2. The issue of ISP liability is a complex one, and whether or not you agree with his positions on the topic, Mr. DeVoy well summarized some of the issues and proposed approaches in part I of his piece. However, Part II was unconvincing – a smear fed, I’m assuming, by his politics and social naivety. There, how’s that for non-anonymous speech?

    • What’s a “smear fed” ?

    • jmdevoy says:

      1) I don’t think it’s a smear as much as stating the reality that online harassment is a one-way street.

      2) Even if the harassment is predominantly against one group, that’s not enough to truncate First Amendment protections; it never has been in the past. However, it’s a great opportunity to raise awareness of the problem through, as trite as it sounds, more speech. Princeton University had a great response to this problem when students were concerned about the effects of juicycampus, encouraging students to own their speech rather than leave it anonymous.

      3) I think it’s naive to assume people in a victim class (whether or not by their decision) cannot be victimizers as well.

  3. haha says:

    There are a few of things that are even worse than Prof. Citron’s argument re: “cyber civil rights” itself:

    1) Prof. Citron and others like her style themselves as “civil rights” advocates – I can hardly think of a more position more contrary to civil rights than this one;

    2) The underlying assumption inherent in Prof. Citron’s argument that women are victims who need to be protected from speech on the internet. Even if online content is vulgar, why do women need to be “protected” from it? There is a huge difference between speech and actions, which seems lost on Prof. Citron. What’s next – locking up cat-callers on the street? I think it’s a fair analogy that reflects the utter ridiculousness of this position.

    3) Prof. Citron has ridden this utterly preposterous position to a full professorship and tenure in THREE YEARS (she became an asst. prof in 2006, an associate prof. in 2007, and full prof. in 2009, with tenure). This is so unbelievably fast as to be practically unheard of in academia.

    4) Now little acolytes of Prof. Citron on the job market – read: future law profs – have taken up the mantle of “cyber civil rights” and will continue to push this nonsense.

    I’m all for the free exchange of ideas, so in theory that would be fine – except it seems that whenever “cyber civil rights” is criticized, dissenters are shut down and dialogue is squashed because it’s “harassment” (see: the Concurring Opinions “symposium” on this subject). What better way to shut up people who disagree with you than to play the victim card. This seems to me to be totally antithetical to the entire foundation of academia, and it bothers me a great deal.

    • jmdevoy says:

      haha:

      Agreed re 1 & 2. I did not know about point 3. As for 4, this is hardly surprising; speech codes and the silencing of dissent through labeling it as some parade of horribles and refusing to deal with it because it’s sexist, racist or whatever the label may be are de rigueur in liberalism and thus any institution it dominates. As you note, this is antithetical to academia. The practical issue with this position is that it makes difficult situations far more difficult because problems cannot be addressed as they arise, as doing so would offend someone’s sensibilities. So instead of addressing problems of gender, class or some other taboo as they arise, they’re ignored until we as a society reach an utter impasse and have to start over or grind to a slow halt.

      We’re not quite at this point regarding § 230, and I don’t think Citron’s proposal is the way to go in the future. But there will be a point where hard decisions will have to be made regarding who wins and who loses if we decide to heed the constitution and permit speech to remain free and anonymous. If we decide not to do that, then everyone is a loser, even the ostensible victors who have their fragile sense of decency preserved.

    • Your conclusion is credited. When she was called out initially for lying in her work, she called that a “cyber harassment” here and elsewhere.

      So if you disagree with a limousine liberal and use a computer to do it, that makes it “cyber harassment.”

    • hawkhead says:

      Re #3: Citron’s bio says she started as a VAP at Maryland in 2004. Once she was officially put on the tenure track, she moved up the ranks quickly, but it’s hardly like she went to the AALS conference, got a job, and then got tenure almost immediately. She was at Maryland for a total of five years before getting tenure, and the committee was undoubtedly familiar with her research work from the time she was a VAP. Three years might be too fast for tenure even in a law school environment, but thanks to the profession’s notoriously lax tenure standards in comparison to the rest of academia, five years is pretty normal, if a little on the short side.

      • haha says:

        Agreed that 5 years is normal for tenure, and also agreed that the standards for tenure in law are more lax than in other disciplines. However, my issue with Citron’s timeline is:

        1) She didn’t just get tenure – she is now a FULL professor of law; and

        2) Time spent in the purgatory of VAP-dom generally means diddly-squat.

        Her timeline is exceptionally fast by any measure.

  4. haha says:

    Re: the perils of liberalism – the funny thing is that I am about as politically “liberal” as one can get, yet I agree with you completely on this issue. One thing I respect about the Federalist Society is the willingness to engage in truly open and honest debate with persons of differing viewpoints, which I sadly cannot say is the same for many “liberals.” That this unwillingness to receive constructive criticism and reasonable disagreement on various positions occurs among lawyers – and worse, among academics – is shameful.

    I would argue that rather than this type of behavior (victimization) being a hallmark of true liberalism, it is a perversion of liberal thoughts and ideas. I agree with you that the victim card gets played a lot by liberals, and this angers me because all it does is undermine or substitute potentially valid arguments for or against the underlying position the individual holds. However, an honest examination of the merits of the position in question are never reached because it’s easier to throw down the ace-in-the-hole at the outset of the game (race, gender, etc.) and prevent real discussion from ever occurring.

    More importantly, I think this type of behavior reflects a deep insecurity on the part of the speaker and is a thinly-veiled attempt to prevent any kind of substantive challenge to their viewpoints because, in reality, they know that the positions they advance are neither a) sound or b) defensible in any real way. If you have the courage of your convictions, and can articulate a rational basis for the position you are asserting, you should not be afraid to debate your position with those who disagree with you. This type of confrontation is, in fact, the alleged hallmark of the academy and intellectual curiosity.

    Because I can’t say it enough, I find it remarkable that “law professors” are being taken seriously for advancing the position that: 1) hurting others feelings should be punishable by law and 2) that they themselves should be insulated from such hurtful comments because they need to be protected from bullies in the Big Bad Internet. As a woman, and a feminist, I find this ostensibly feminist position to be totally contrary to the notion of equality.

    And finally – aside from the fact that I reject the notion that a law professor who has the time and luxury to ruminate about such stuff is a victim in any way, shape, or form, I think this kind of victimization has the effect of trivializing and undermining the atrocities committed against *real* victims of violence (both male and female). I personally find it offensive to assert that being called a cunt on the Internet should be punished the same way my boss demanding that I suck his dick or lose my job be in a court of law. They are not, nor should they be, the same thing.

    • haha,

      You wrote: One thing I respect about the Federalist Society is the willingness to engage in truly open and honest debate with persons of differing viewpoints, which I sadly cannot say is the same for many “liberals.”

      I am in the same boat as you. I’m practically a communist, I’m so far left. But, I seem to gather a lot of right-wing / federalist friends. Primarily for this reason. We can debate, disagree, then go back to drinking our beer. But, when you try and engage and challenge most liberals, all you get is the pathetic whining of someone throwing the victim card.

  5. [...] but never produce anything tangible.  Citron herself has been bandying about the idea of requiring the disclosure of prior IP addresses to character and fitness examiners for years, yet it is no closer to being a requirement in any single state than it was at its watershed moment [...]

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