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May 2017

Why addressing online harassment and discrimination is so difficult

Social media has become part of our daily life, but there is a sinister side to it that includes menace, harassment and discrimination.

Social media and 24/7 texting have also so blurred the line between work and personal life that work-related sexual harassment can occur even when people aren’t physically in the workplace.

And, as incidents of abusive behavior on social media rise, victims and their lawyers are finding it particularly challenging to address the harassment.

The ABA Section on Intellectual Property Law and the ABA Center for Professional Development presented “Doxing, Swatting, Trolls and SJWs:  Harassment and Gender Discrimination on Social Media” to prepare attorneys for problem-solving situations involving such abuse. The session was moderated by John Bayard, Ernst and Young LLP, and included panelists Mary Ann Franks, University of Miami Law School; Jennifer Criss, Drinker, Biddle and Reath LLP; Jessica Moreno,; and Elizabeth Ragavanis, Clockwork Law, New Haven, Conn.

A growing problem

According to 2014 statistics, millions of users have access on social media to our photos, videos and personal information that most social media users think is shared with or of interest only to a select group of friends. 

If you’re on social media, you’re open to intrusive behavior from anyone anywhere.  Bayard outlined several pernicious practices:

  • Doxing – The search for and publishing on the internet of private or identifying information about a particular individual with malicious intent.

  • Swatting – A false emergency report of a bomb threat, murder or hostage situation at a person’s home address that results in SWAT police unit military-type responses.

  • Trolls – Individuals who post provocative, inflammatory or off-topic messages to disrupt and overwhelm an online community.

  • SJW – Social Justice Warrior, a pejorative term for someone who promotes socially progressive views such as feminism, civil rights, multiculturalism and identity politics not because they believe them but for self-promotion.

Revenge against a former spouse, ex-lover or unrequited love is as old as the Iliad and as modern as the film, “Gone Girl,” but Franks calls the internet and social media “a force multiplier for abusive behavior.” She noted that sites like give opportunities for revenge to anyone who can text or take a photo on a smartphone.  It has made “harassment and stalking easy, immediate and virtually cost-free,” Franks said.

Moreno, of, is the former head of community for Reddit, a social news aggregation, web content rating and discussion website. She said that the internet and social media environment might be traceable to the fact that the cyber community historically was and still is overwhelmingly a male community.

“Ninety percent of tech employees are men, 90 percent of tech senior managers are men,” she said.  “Most of the industry was coming from this male perspective, thinking of the internet as the Wild West. They just didn’t think about prioritizing protections.”

Limitations on helping victims

Victims seeking help for online abuse face several challenges in obtaining the justice they deserve, said the panel.

Ragavanis explained that one of the primary problems is that law enforcement is ill-equipped to deal with online incidents. She said that many of the online platforms will point people to their local police departments for help, but victims say their issues are often minimized and not taken seriously there. “One of the things that sometimes happens is that law enforcement doesn’t really understand the problem, so they’ll say things like, ‘Those are just words,’ or ‘Just stay off the internet’ – which is terrible advice.”

Franks called the problem a “technology literacy gap” among law enforcement, also citing a lack of resources and imperfect training, as reasons that local police have been ill-equipped to aid victims.

Compounding the problem, “laws that deal with harassment or threats are jurisdiction-specific. So, each state or locality will have a different definition, and online harassment and threats may or may not fit that definition,” Ragavanis said. “So, yes, you’ve had a death threat, and yes, it may be credible. But no, it doesn’t quite fit into the law.”

Explaining further, Criss said: “State laws are very specific and all different in how they define harassment. Some states have laws, while others don’t. And, state laws do not need to coincide at all with the policies of social media sites in terms of how they define harassment.”

Franks said that lawyers representing victims might want to pursue alternate remedies, such as copyright, civil or criminal approaches, which can be applied to these new contexts. However, she points out that they can be cumbersome and very expensive for the client.

Complicating legal remedies is the Communications Decency Act, Section 230, which broadly speaking, provides immunity in many cases for information service providers that provide platforms for third parties to post content. Franks called the federal law “very broad” and “strong protection” that shields social media providers from liability when it comes to what their users are doing.

“It becomes very difficult to find anyone to hold accountable and anyone to actually exert or have the incentive to exert restraint or punishment,” Franks said of the law, noting that those committing the abuses can cover their tracks online and frequently just disappear, leaving victims in “no man’s land.”

However, Franks advised lawyers that the immunity offered by the act does not apply to violations of federal criminal law.  “What this means is that if we…apply federal criminal law, then Section 230 does not kick in.”

Not waiting until the law catches up to what’s happening online, some lawmakers are working to tackle online abuse. Among them, Congresswoman Katherine Clark of Massachusetts, herself a victim of online swatting, has made it one of her goals to address online harassment and has introduced a series of bills that address problems such as swatting, doxing and sextortion.  Also, U.S. Rep. Jackie Speier of California has been working on the non-consensual pornography issue through the introduction of the Intimate Privacy Protection Act of 2016. 

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