Who’s Responsible for Harassment? – by “Shirley B”

Harassment is no new phenomenon on the Internet.  As astutely stated by Penny Arcade, normal person + anonymity + audience = Total ****wad. (Don’t click if cursing offends!)  But for websites that present a platform for user-generated content, harassment has presented interesting new problems.  Are these websites liable for user content?  Are they simply providers of the platform on which users place content or are they themselves content providers?

Two years ago a Twitter user was harassing a woman named Ariel Waldman over the social networking website.  After submitting a complaint to Twitter, an administrator removed the tweets from the public time line.  However, when Waldman asked that the user be banned, she received a reply that the comments were not illegal, simply malicious, despite the fact that Twitter explicitly lists harassment as a violation of the Terms of Service, and reserve their right to remove content and users in violation of their Terms of Service (though are not obligated to).  Twitter promised to revise its Terms of Service to clarify its enforcement policies, but would do nothing further, for fear of a lawsuit.  Jason Goldman, the product manager for Twitter, stated in a post at getsatisfaction.com that “As a communication utility, Twitter does not get involved in disputes between users over issues of content except in very specific situations. Twitter is a provider of information, not a mediator.”  In the same post, Goldman also stated that the company was working on improving its blocking feature, which could solve the problem of harassment.  Problem solved.  The issue was only with Twitter’s ToS, its enforcement of it, and their insufficient blocking tool.  Not quite.

John Dozier Jr., an expert in Internet law, says that Twitter may have surrendered its safe harbor under the Communications Decency Act when it edited the user’s page, which it did when it removed it from the public feed.  “If they’ve edited content based on their subjective perspective, they put their immunity at risk and virtually their entire online business, because then they’d be liable to defamation claims or anything else that a publisher would,” Dozier says.  What if a website had knowledge of the harassment – had seen it, had watched it continue, and were fully aware of the problems it was causing – but did not take any action?  Could this lack of action, this implicit approval (or at least lack of disapproval) of the content entangle them in the same liabilities that publishers face?  Madeline Rodriguez takes this a step further in her article “Reexamining Section 230 of the CDA and Online Anonymous Speech: Defamation on the Internet and the Websites That Facilitate It.”  She says, “if an ICP [internet content provider], and certainly an ICF [internet content facilitator], has reason to know, or anticipate, that at least some of the postings on their website are defamatory, false, anonymous, annoying, or harassing in nature, then they will be considered a co-author of the defamatory, false, anonymous, annoying, or harassing postings, and just as liable as the original poster, losing their CDA 230 immunity completely, and be subject to full monetary, legal, and equitable damages by an aggrieved party.”  This seems to suggest that Twitter is co-author of the harassing posts, and as a creator, could be at risk of a lawsuit.

Malcolm Coles, a UK blogger who believes that Italy made the right decision in deciding against Google, argues that these Google executives are absolutely responsible for the content published on their website, because they are responsible for the systems that police that content.  While the problem that Madeline Rodriguez presents only seems relevant to cases in which the website owners have actual knowledge of illegal activity, Coles suggests that Google indeed should be able to have actual knowledge of every incidence of illegal activity on their website.  He blames Google for not having an adequate policing system, since the video was taken down two months after it was posted (though only two hours after an official request by the Italian police).  Coles claims that Google facilitated the posting of the content through its negligence, and that it “has ongoing control over that platform” which involves it in content publishing in a way it does not a “camera-maker or tissue-box manufacturer.”

Harassment presents a new problem for user-driven content websites.  It is difficult to find, unlike copyright infringements, often ambiguous, and is obviously a sensitive subject. It also involves publishing original opinions and user-generated content in a way that infringement does not.  While I certainly don’t think that websites such as Google, YouTube, Twitter, or the New York Times (for its comments sections) should be held liable for what others post, it is interesting to look at the fine line between facilitator and provider that these sites are walking in the case of harassment.

Can the Government Really Save You From Yourself? – by “Thad D”

Court Photo
The Plaintiffs Appear in Court, Represented by the ACLU

On January 15th, 2010, the case of Miller v. Skumanick continued in the Third Circuit Court of Appeals.  For those of you unfamiliar with the case, in Pennsylvania, Tunkhannock School District officials discovered cell phone photos of high school girls posing “provocatively” in late October 2008.  The two photos discussed in Miller’s suit involve one depicting a teenager with a towel wrapped around her waist and her breasts exposed (like she just took a shower), and another depicting two girls in training bras making “peace signs” for the camera.  School officials handed the cell phones over to the office of the District Attorney, George Skumanick, who decided to meet with all students involved and offer them a deal: either they would take an education course or face prosecution on charges of distributing child pornography.  Parents would have to pay the course enrollment fee and the course itself would discuss, among other things, “what it meant to be a girl in today’s society” and an essay each student would have to write describing why what they did was wrong.

[Notice that, in last month’s proceedings, the defense refers to the admission of guilt as having to write an essay about why it was “unwise to send those photographs” – the word ‘wrong’ being intentionally omitted].

At any rate, the plaintiffs, feeling that their constitutional rights were being infringed upon, filed an injunction to prevent District Attorney Skumanick from taking prosecutorial action.

Although this case touches on a host of today’s hot issues, what is interesting to note is the concept consistently raised by the defense that Skumanick’s office was “protecting the children from themselves”.  This post is a mixture between a response to and an analysis of an article from Reason.com (aptly titled “Ruining Kids in Order to Save Them”).

So, what do the defendants mean in describing their prosecutorial discretion as ‘saving the kids from themselves’?  In this, the defense is very clear: “Children are immature, children are vulnerable.  The entire basis of the juvenile code is to protect children from themselves…When kids disseminate pictures of themselves through the Internet they are putting themselves and other children at risk.” (Miller – Oral Arguments, pp. 15-16).

The defense is adamant and clear in its stance.  What is more important though is to ask whether or not this line of thinking applicable.  What are we really trying to accomplish in doing this?  Certainly, children who are abused and exploited become victims the moment the action takes place.  Disseminating images of this child pornography does create a huge problem in our society, and provokes and encourages this socially unacceptable behavior.

But what if a teenager posted a picture to Facebook of herself posing in a bikini, or himself not wearing a shirt on the beach, or some other scenario where the youth was, simply put, not dressed in accordance with Sharia law.  We may laugh at the ridiculousness of calling such a photo pornography, but I should remind you that two of the girls facing prosecution had opaque training bras on, and no genitalia or breasts exposed, in the “pornographic” photo.

From the reaction of the girls in this case, it’s clear to see that they felt no more victimized by these photos than if their parents had taken pictures of them on the beach in two piece bathing suits.  In fact, District Attorney, in his meeting with the children, had commented that he could prosecute teenagers who appeared in pictures wearing bikinis, based on his enforcement of the Pennsylvania statute on child pornography.

Given what I’ve said, it’s easy to dismiss Mr. Skumanick as a reactionary zealot, and these photos as incredibly innocent and, more importantly, victimless.  But, perhaps the plaintiffs are truly too immature, and unable to understand whether or not they are being victimized.  Whether one buys the argument that until one is older than 18 years old they are not mature enough to make serious decisions is an entirely different issue, one too lengthy to delve into here.

However, if these children are indeed too immature, are their parents wrong in deciding that the photos of their children are not obscene?  Do public officials have the right to enforce their judgment over the head of parents? And if so, where do we draw the line on what issues those officials have the right to meddle in?

In this case, at the very least, it would seem that the prosecution is making a mountain out of a molehill.  And honestly, since Skumanick pursued prosecution against the teenagers at the beginning of an election year, it’s pretty transparent to see what he was trying to accomplish (Hint: it rhymes with “me-election”).  However, in noting all the shortcomings of our legal system, and the loopholes that a few avaricious public officials will claw their way through to assume the national spotlight, we should reflect on the importance of the laws that occasionally harm our citizens.

Stockholm syndrome, a serious psychological effect, occurs when a hostage falls in love with the person who has captured them.  Related, but slightly different, is when a victim falls in love with their tormenter.   Hypothetically, if a child had had photos taken of them by a parent or guardian where they appeared fully clothed, but in provocative poses, and had willingly disseminated those photos at the request of the parent or guardian (because they still loved and obeyed him or her), the state would have no recourse against said parent.  Although contrived, the case still applies; as in the scenario no physical abuse would take place, but inappropriate photos of a juvenile would be distributed, and the crime would not be “victimless”.

The issue of government intervention in parenting has always been contentious.  But as kids get access to newer, more powerful technological tools at earlier and earlier stages of life, the issue of morality, parenting, and technology will more often rear its ugly head.

The Devil’s Advocate – by “Reynolds H”

Amongst Americans, internet freedom, is considered a basic human right.  The ability to access any information that is desired, to publish any free thoughts on any topic, and to freely criticize the authorities that govern are all written into a law which protects these freedoms.  It’s been instilled in everyone in our generation since the first stages of our education: freedom of speech.  But is the freedom of speech, especially via the internet, truly a basic human right or is it merely a luxury right, which Americans have become accustomed to so much that it is perceived in the same light as shelter, water, health, and nourishment?  Americans often express this desensitization to other scenarios by exclaiming that all countries policies should promote freedom in all aspects and citizens of those countries should expect no less than the same freedom grated to citizens in the United States.  The United States’ active encouragement of the rapid progression of freedoms in China, especially internet freedom, may be misguided, not allowing China to reach the steps necessary for the developmental path to achieve the level of freedom comparable with the United States.

The reason that citizens of the United States are able to enjoy the freedom of speech which they are guaranteed by law today is the stability of the social and government institutions within the country.  The stabilization of the government structure allowed citizens of the United States to trust that their government could survive and therefore be able to protect its citizens, leading to the stabilization of the social institutions, which then allowed for the cascade effect of the evolution of rights.  The government structure of the United States has had structure since its creation in 1776, which allowed for the normal development leading to the creation of a code of basic rights accepted into law, and eventually to the current system of freedoms enjoyed in the US.   From a more modern perspective, to a certain extent, the United States has enjoyed government stability since the end of the civil war in the 1860s, with little to no major governmental changes happening since then.  In this time, there have been major advances in the civil right of citizens, from the ending of slavery to the equal rights among men and women to the equal rights among race, with only recently (past 40 years) having achieved equal basic human rights for all citizens.  These advances in human rights came by a strong social approval across the nation and a banding together of people to enact change in the government, social disorder was used as a tool to create change in the laws governing the society.  This change, however, was only possible because of the strong structure of the government and the stability it held, allowing for large swings of social disapproval and disorder without the destruction of the country’s government structure.

China lacks the social order and strong government structure needed for the accelerated development of the human rights.  The People’s Republic of China (PRC) did not come into existence in its present form until the end of the 1950’s with the ending of the Chinese Civil War.  When it did assume power, the PRC inherited the poor governmental, social, and judicial institutions from the pre-civil war governance.  Even today, China is still tackling the attainment of the basic human rights for the majority of its citizens and the creation of a stable governmental structure.  Therefore the main goal of the PRC is to create and maintain social order and to build the government structure.

Recently the NY Times published an article about the proposed adoption of a registration requirement which would require users to register their real names, identification numbers, and information to access and comment on new sites.  When asked to comment, officials and state-connected academics in the information security field, argued that mandatory controls are necessary to help subdue inflammatory attacks, misinformation and other illegal activity deemed to endanger social order.  In another NY Times article, officials were asked to comment on the increase in proposed internet censorship and monitoring during 2009, a year which commemorates numerous anniversaries marking advancements and socially revolutionary events.  Reporters indicated that China had established a high level committee completely devoted to the maintaining of social stability.  Government censors have blocked over a thousand websites, closed liberal forums and blogs for, blocked access to YouTube, Facebook and Twitter, and cut off Internet service in locations with serious social instability, notably in the Xinjiang region of the west after deadly clashes between different ethnic groups, Chinese officials have defended that internet shutdowns were based on the grounds of national security.  The trend here is evident.  Although considered wrongful according to the western bias, one way of maintaining social order is internet and information censorship.  By eliminating sources which criticize the government, invoke social unrest and riot, and promote rebellion, the PRC government is trying to strengthen the internal social order which is necessary to progress to its steady stabilization.  To put it into plainer words, China is trying to get everyone on the same page, so that they can move on to the next step.  This may seem like backwards primitive thinking from an American biased perspective, but people must understand that the government responsibility is to provide protection for its citizens and in China’s case, that protection may come at the price of some of the freedoms of the citizens.

Once this social stability is steady, it allows for the creation of a better government, then for the stability of that government, thereby finally allowing for the social disapproval necessary to enact change in that government.   But if that social stability is never achieved, the cascade of processes leading to change cannot start. Plain and simple, despite the repression of the freedoms of the public, China may be doing what is best for their country for the long run.  Repressed freedom, and thus internet censorship may be the “evil means” to the beneficial end of the furthering of freedoms in China.

Two Sides, One Coin: Free Speech and Web Vigilantism in China – by “Chuen-Yee C”


One of the most well known cases of web vigilantism in China occurred earlier this year when Jiang Nan jumped 24 floors to her death. Before she committed suicide, she wrote multiple blog entries describing the details of her husband’s affair. Chinese netizens, eager to see justice served, tracked down and publicized photos and personal information of her husband and his lover. Jiang Nan’s husband, Wang Fei, an advertising agency executive, suffered extensive invasion of his privacy and was subsequently fired from his job.  Ironically, this alarming example of a peer-surveillance state in action seems to have its roots in the exercise of free speech.

Despite the staggering changes toward modernization that have occurred, Chinese value systems have yet to modernize in line with the country’s evolving posture toward capitalism and its cooperation with the global economy. There are now an estimated 137 million Internet users in China, and the Internet has had a profound effect on the Chinese way of life and the predominantly traditional values it has embodied for over two thousand years. However, the explicit confrontation between distinctively Chinese values and the Western values of free expression and the free flow of information that drive the Internet has resulted in a dramatic conflict.

Web vigilantism is a common problem rife in all societies with access to the Internet, but is a particularly alarming phenomenon in East Asian countries, especially China. On social networking sites, blogs, and other Web 2.0 platforms, destructive groups can publish sensitive information, from private matters to personal information. These groups often threaten forms of physical violence and send damaging statements about victims to employers and manipulate search engines to highlight those statements for business associates and clients to see.

Incidents of “web lynching” and the “human flesh/renrou search engine” 人肉搜索 in East Asian countries, most notably China, demonstrate the underpinnings of a larger social and cultural problem. Acts of vigilantism on the Internet have destroyed the reputations of victims, corroded their privacy, and impaired victims’ abilities to participate in online and offline activities. The benefits of the Internet have left their mark especially in the realm of economic and financial development, but social harm has resulted from the sudden explosion of traditional values operating on a mass scale. While Confucian principles have deeply shaped both the Chinese hypersocial environment and sense of justice, the Internet has enabled transcendence of traditional social roles and a cost-effective means to collective action. These factors have combined to contribute substantially to the trend of extreme Internet vigilantism, digital witch hunts some have dubbed the “New Red Guard.

The Chinese government’s “pro-morality” stance has not deterred vigilantes and may indeed have worsened the situation. At the same time, most of the government’s efforts to promote “social harmony” on the web lay in mass censoring and filtering mechanisms—efforts that mostly center around limiting the freedom of political speech. In protecting Chinese citizens from each other would it be better to implement a more benign approach by imposing checks through tradition and thought, or does the answer lay in restructuring social norms through the law? China’s unique history and social culture mean that traditional Western approaches may not work and could even worsen the situation.

Wang Fei recently won his suit against the blogger who released his wife’s diary online and the website that published his personal information. This verdict sets an important precedent for future online vigilante victim cases, but China’s current legal system is only able to help victims attain meager compensation on a case-by-case victim; Wang Fei’s total awards totaled less than $1,000USD.  While laws could be reformed to adequately address victim compensation, efforts to control Internet vigilantism in China should also reflect a commitment to reforming citizen behavior online. In order to structure an appropriate solution that minimizes attacks on individual citizens while promoting the use of renrou as a check on political corruption , Chinese legislative and political powers must understand the relationship between China’s hypersocial environment, Confucian and traditional values, and the Internet’s influence on group behavior.

Anonymous Speech: Harmful Enough for Regulation? – by “Marcus M”

The Internet offers users the possibility of anonymity, which allows people to act elusively and namelessly across its vast series of tubes. While online, individuals can use aliases to mask their identities or even to design entire virtual “second lives.” While users do leave their IPs behind, they trust that host sites will safeguard this information, which can be used to reveal their true identities. The power afforded by the Internet’s identity-obscuration has a variety of effects on speech.

One of these effects has been to encourage the expression of otherwise detestable speech. Of the belief that their identities will not be uncovered, individuals may feel enabled by their online anonymity to post material they deem too offensive, provocative, or legally dubious to express in the real world. This effect has manifested itself in countless instances of online hate speech and cyberbullying, both of which can cause tangible harm to their targets. This potential for real harm raises the following question: Can the veil of anonymity enjoyed by Internet users be justifiably removed for the sake of a citizen’s protection?

This is the question posed to the Cook County Circuit Court in a recent case regarding “deeply disturbing” comments made online about the 15-year-old son of Buffalo Grove, IL Village Trustee Lisa Stone. Under the alias “Hipcheck 16,” an individual posted the comments in response to an article written in the Daily Herald on April 6, the day before Village Board elections. Stone went to court to ask Judge Jeffrey Lawrence to give her the identity of Hipcheck 16. The judge did acquire the user’s identity, but he did not relay it to Stone, at least not yet. On November 9, Stone’s attorneys and the anonymous poster’s attorney will present their arguments before the judge, who will then decide whether or not to provide Stone with Hipcheck16’s identity.

ACLU spokesman Ed Yohnka weighed in on the case, saying that anonymous speech is an integral part of our society, and must be protected. Noting the anonymously published texts by Benjamin Franklin and Thomas Paine, Yohnka pointed out the importance of anonymous speech in the early stages of America’s independence. The case would have broad application to online speech rights, since few cases like it have appeared in American courts, and could possibly restrict the ability of citizens to speak anonymously.

But it seems that this point ignores the capacity of the law to draw a distinction between acceptable and unacceptable anonymous speech. The type of speech Yohnka wishes to protect would be legally protected – however nasty, political speech by definition targets the state and its occupants, not fellow private citizens. There do already exist protections for anonymous speech, but these do not cover defamatory and other speech considered illegal in normal circumstances.

The various contributing lawyers seem to neglect Stone’s main concern in seeking Hipcheck16’s true identity. She sees the case as primarily about the “need to protect children from being attacked on the Internet.” This bring to mind the incident last year of a mother posing as a teenage boy on MySpace, who taunted a 14-year-old girl to the extent that she committed suicide.

While certainly an extreme example, this incident demonstrates to me the necessity of at least some laws governing how individuals interact with one another on the Internet. When there is significant, tangible harm done unto a person by another user, I think there should be punitive action taken against that user, beginning, of course, with his identification. The policy behind this would have to be written sufficiently clear as to not deter anonymous speakers in general. Otherwise, the anonymous political speakers whom the ACLU seeks to protect will suffer. What a surprise: a big obstacle is determining the appropriate language for a law.