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.
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.