The Cyber Civil Rights conference raised so many important questions about the practical and normative value of seeing online harassment as a discrimination problem. In these remarks, I highlight and address two important issues that must be tackled before moving forward with a cyber civil rights agenda. The first concerns the practical—whether we, in fact, have useful antidiscrimination tools at the state and federal level and, if not, how we might conceive of new ones. The second involves the normative—whether we should invoke technological solutions, such as traceability anonymity, as part of a cyber civil rights agenda given their potential risks.
Cyber Civil Rights
Part One: Contextualizing Online Harassment
What, if some day or night a demon were to steal after you into your loneliest loneliness and say to you: “This life as you now live it and have lived it, you will have to live once more and innumerable times more” . . . Would you not throw yourself down and gnash your teeth and curse the demon who spoke thus?
– Friedrich Nietzsche, The Joyful Wisdom
[E]very year in September, a large number of new university students . . . acquired access to Usenet, and took some time to acclimate themselves to the network's standards of conduct and “netiquette.” After a month or so, these new users would theoretically learn to comport themselves according to its conventions. September thus heralded the peak influx of disruptive newcomers to the network.
In 1993, America Online began offering Usenet access to its tens of thousands, and later millions, of users. . . . AOL made little effort to educate its users about Usenet customs . . . . Whereas the regular September freshman influx would soon settle down, the sheer number of new users now threatened to overwhelm the existing Usenet culture’s capacity to inculcate its social norms.
Since that time, the dramatic rise in the popularity of the Internet has brought a constant stream of new users. Thus, from the point of view of the pre-1993 Usenet user, the regular “September” influx of new users never ended. The term was first used by Dave Fischer in a January 26, 1994, post to alt.folklore.computers: “It’s moot now. September 1993 will go down in net.history as the September that never ended.”
– From the Wikipedia entry for Eternal September
Much virtual ink has been spilled on the ever-increasing phenomenon of cyber harassment by a wide range of individuals writing from a wide range of perspectives. The voices weighing in on the heated discussion include scholars (legal and otherwise), lawyers, bloggers, techies, Internet users whose offline identities are largely unknown, and many who fit into more than one of these categories. The varying opinions on cyber behavior often revolve around a conception of “seriousness,” and seem to fall roughly into one of the following categories:
1. Cyber harassment is a serious problem that should be legally regulated through civil rights, tort, and criminal law;
2. Cyber harassment is a serious problem that can be adequately dealt with through tort and criminal law;
3. Cyber harassment is a serious problem but legal regulation is not the right way to address it;
4. Cyber harassment is not very serious and accordingly should not be legally regulated; and
5. “STFU, b$tches!” In other words, not only is cyber harassment not serious, even using the term “cyber harassment” marks you as a whiny, oversensitive PC’er/feminazi/old dude who doesn’t “get it” (where the referent for “it” ranges from “the free-wheeling, often mindlessly derogatory way that digital natives interact with each other” to “the First Amendment”); accordingly, not only should cyber harassment not be legally regulated, it should be legally protected.
By Helen Norton
Professor Franks’ Sexual Harassment 2.0 valuably builds on Professor Citron’s substantial contributions to our understanding of cyberharassment in at least two ways. First, Professor Franks joins Professor Citron in powerfully challenging the idealistic narrative of the Internet as a primarily egalitarian institution. Both persuasively document the use of cyberharassment to target and punish traditionally subordinated groups.
Second, Professor Franks thoughtfully responds to Professor Citron’s call for a conversation about what a cyber civil rights agenda might involve. Professor Citron started that dialogue in Cyber Civil Rights, where I was particularly fascinated by her discussion of the Violence Against Women Act’s prohibition on the use of telecommunications devices to deliver certain anonymous threats or harassment. I am less optimistic than Professor Citron, however, that other existing civil rights laws—such as Title VII, Title IX, and 42 U.S.C. § 1981—might capture and address cyberharassment’s harms.
One of the most interesting challenges for lawyers and law professors, of course, is creating new language and concepts to capture new injuries as they arise. Naturally, the impulse is to explore existing doctrine for appropriate analogies, and there are many interesting possibilities for the injury of online sexual harassment, as Professors Citron’s and Franks’ scholarship reveals.
The obvious place to start is certainly sexual harassment law, as many participants at this symposium noted. I agree with Professor Citron that there are many historical similarities between discussions of cyber harassment today and the initial debates about sexual harassment in the workplace that occurred during the 1980s. Harassment is being trivialized now in quite similar ways to how it was then, and the arguments for seeing such behavior as non-actionable private crudeness rather than civil rights violations are familiar as well. Courts and commentators in those early days routinely dismissed harassment at work as harmless flirting, and would-be plaintiffs were often exhorted to seek work elsewhere if they didn’t like the sexually charged atmosphere that some workplaces “happened” to have. So, the recycling of such attitudes into arguments such as “if you don’t like the atmosphere, stay off the website” is certainly not surprising.
In the sections that follow, I’ll comment upon several aspects of the problem of cyber sexual harassment and the presenters’ thoughts on how to solve it, including: (1) the overstated benefits of Internet freedom; (2) the nature of the harm of cyber sexual harassment and possible solutions; (3) conflicting liberties, the pornography parallel, and access issues; and (4) the real danger of web regulation: censorship of political dissent.