Perspectives on Privacy and Online Harassment: A Comment on Lipton, Grimmelmann, and Wolf

This post is part of an eleven-part series entitled Cyber Civil Rights.  Click here for a PDF version of the entire Cyber Civil Rights series.  Click here for a PDF version of this post.

By John T. Soma†

Introduction

James Grimmelmann’s observations on the “Skank” incident in New York City highlight the developing computer and telecommunications technologies as they impact the traditional harassment legal area.  The Skank affair resulted in the victim persuading the court to unmask the alleged harasser/libeler.  As noted by Chris Wolf, the end result was the court followed the doctrines previously developed in Dendrite Int’l v. John Doe No. 3.[1]  The Dendrite decision is a classic balancing tests of between privacy, First Amendment anonymous speech rights, and rights of an alleged victim.  In the Skank affair, the court applied this classic balancing test in an entirely modern context.

This brief comment offers three perspectives on the current cyber civil rights debates between online harassment, privacy, First Amendment rights, and civil liability.  Although the cyber civil rights agenda might appear to present novel questions of law and policy, this comment suggests we have much to gain from three perspectives.  First, we can learn much by examining the historical tension between free speech and privacy. Second, we should look to other instances where courts were confronted with “new” technologies. And third, we can learn from other countries’ approach to privacy and harassment online.

I. Three Perspectives on a “New” Problem

A.       What We Can Learn From the Past: The Historical Civil Rights Perspective

While the challenges faced by the cyber civil rights movement are very real,[2] we should not lose sight of our past experiences with similar issues.  As Chris Wolf and Robert Kaczorowski wisely reminded us, our court system faced the difficult intersection of privacy, speech, and harassment during the KKK’s reign of terror in the late nineteenth and early twentieth centuries.

There should be little doubt that technology evolution will continue to challenge our existing legal paradigms. We should not, however, succumb to the notion that this reality necessitates a wide scale revolution in the law.  While the “technology revolution” may seem startling to many people, our society—and our court system—has been here before.  Two hundred and forty years ago, a typical lawsuit might have involved a dispute between two landowners over allegedly libelous information printed in a local newsletter.  One hundred and twenty years ago, the newsletter might have been a telegram.  Sixty years ago, it may have been a video recording, and as recently as the 1990’s, information on a listserv.

Today’s blogs and message boards indeed present unique challenges to our concepts of privacy and communication.  But in many ways, they are simply the most recent iteration of a constantly evolving problem.  While these technologies may seem truly transformative in the short run, we would do well to remember that our legal system is not entirely unacquainted with change.

B.       What We Can Learn From Other “New” Technologies: The Courts’ “Balanced” Perspective

From the perspective of technology and privacy, the “Skanks in NYC” case provides yet another example of the constant need for courts to establish appropriate balancing tests, and apply them to new situations in which the technology has changed.  Each time technology advances there is, and always will be, an appropriate balancing test, which includes a subjective element in the final decision.  Those looking to develop a hard, “bright line” rules to situations involving new technology and the law will likely encounter great frustration—and rightfully so.  Bright lines create rigid precedent.  Technology evolves very quickly, and today’s rule will often lead to tomorrow’s undesirable result.  Our best hope, therefore, is to preserve a balancing of interests when confronted with new or unexpected situations.

Indeed, the resolution in “Skanks in NYC” supports the argument in favor of balance.  Once the unmasking decision was made, the target was free to proceed with the litigation or simply drop it.  As plaintiff, the victims’ framework was to weigh the cost of proceeding with the litigation, whether the unmasked harasser was judgment proof, as well as the Streisand Effect on the victim.  In this case, the victim felt the mere unmasking was sufficient for the situation.  Here again, we see a balancing of interests to arrive at the best solution—this time the private interests of the victim who brought the lawsuit.

As new technologies impact the privacy–first amendment legal arena, courts must always take a balancing approach. Otherwise, our overreaction to today’s problem might stamp out tomorrow’s solution.  If technological evolution has taught us nothing else, it is that things change very quickly.  By resisting hard-line rules and maintaining a balanced approach to new and difficult questions of free speech and privacy, we will insure that our courts can respond to that change.

C.       What We Can Learn from Other Countries: The International Perspective

Proposed solutions to the problems addressed at this conference must account for the global nature of online activity.  It no longer makes sense to think about privacy and online harassment from a purely national perspective.  The global aspects of online social networks (“OSNs”) including Facebook and My Space are, and will in the future, challenge the interface between technology and privacy on an international scale.

Jacqueline Lipton’s paper and discussion provides an excellent review of the current European treatment of OSNs.  Her comments make clear that although the EU has been much more proactive in addressing electronic privacy, the EU Directive still leaves open many unanswered questions—particularly in the area of OSNs.

The European Union is not alone: Canada has also emerged as an early leader in establishing comprehensive electronic privacy laws. Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”) broadly prohibits the disclosure of “personal information without the knowledge or consent of the individual,”[3] although that prohibition is subject to exceptions.  On whole, Canada’s PIPEDA is less restrictive than the EU’s Data Privacy Directive, although both attempt to balance the interests of online privacy and free speech.

If the United States decides to implement federal privacy legislation—as some have advocated, including participants in this symposium—then we need not reinvent the wheel.  The United States has much to learn from its neighbors to the north and the east, and in crafting our own federal statutes (if we should choose that route), we should capitalize on the EU and Canada’s existing perspectives.

Conclusion

Danielle Citron’s work to elevate the cyber civil rights movement has raised many important and difficult questions.  To be sure, online harassment and discrimination against women and others deserves serious attention, and this symposium suggests these issues are beginning to attract that attention.  We should remember, however, that our courts and our country have faced similar problems in the past.  No doubt many of the participants in this symposium will take the lead in proposing solutions to the online harassment problem.  Our own country’s experiences during the reign of the Ku Klux Klan, the decades-long fight to end workplace sexual harassment, and the explosion of technology during the last quarter century can offer invaluable perspectives in that effort.

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† The author gratefully acknowledges the assistance of Jake Spratt in preparing this comment.

[1]. Dendrite involved the anonymous posting of allegedly false information about a company’s financial statements on a Yahoo! message board. The company sued, and moved to “unmask” the anonymous poster.

[2]. Professors Citron and Franks have provided an excellent summary of the very real harms posed by online harassment, especially harms to women and historically marginalized minorities.

[3]. Id. § 7(1).