Legal Commentary

?Cyber Civil Rights? Symposium

By David Kopel

Last year, Maryland law professor Danielle Citron published ?Cyber Civil Rights? in the BU Law Review. Here?s the abstract:

Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged groups. . . . Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating digital ?scarlet letters? that ruin reputations.

. . . .

General criminal statutes and tort law proscribe much of the mobs? destructive behavior, but the harm they inflict also ought to be understood and addressed as civil rights violations. Civil rights suits reach the societal harm that would otherwise go unaddressed and would play a crucial expressive role. Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim?s employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.

Citron?s article detailed some particular cases of such abuses. As she acknowledged, the mob actions are solidly within the scope of existing criminal law and tort law. Nevertheless, she made the case that federal civil rights laws should be revised to cover Internet threats and defamation?since civil rights statutes provide attorney?s fees for a successful plaintiff, and since prosecutors would be more likely to bring criminal charges if the underlying offense has a civil rights association. She arguds that ?Just as changing circumstances justified curtailing the right of contracts in the 1930s, today?s networked environment warrants a rejection of free speech absolutism.?

Citron also proposed that website operators be civilly liable for the content of postings on their websites (by means of an exception to 47 U.S.C. § 230, the immunity statute), and that operators be required to collect and maintains ISP logs for all posters.

Last fall, the Denver University Law Review held a symposium about Citron?s proposal, featuring commentary from 11 scholars, plus a response from Citron. Rather than being required to submit a full-length article, the commenters for the on-line symposium were asked to provide a lightly-annotated essays. The full collection of commentary is here, as a PDF. (HTML versions of individual comments are here.)

Essays by Paul Ohm, Viva Moffett, and Wendy Seltzer suggest that mandatory ISP collection and civil liability might cause many problems than they would solve. In response, Citron acknowledges the force of these arguments. Accordingly, she suggests that the best remedies would be to amend federal civil rights rights statutes so that they fully cover the abuses she has described. She also suggests that some version of Notice & Takedown might be appropriate, although, as she detailed in her Boston University article, this has problems of its own.

Comments welcome, of course, but before commenting, please read at least one of the essays, or Citron?s original article.

Full post as published by The Volokh Conspiracy on March 22, 2010 (boomark / email).