Social Justice Monday – Cyber Civil Rights: Legal Responses to Non-Consensual Pornography on the Internet
February 13, 2017
With the click of a mouse, a bitter ex or hacker can upload compromising photos or videos to public websites without the consent of the pictured individual. On-line dissemination of nonconsensual pornography (also called “revenge porn”) is a an invasion of privacy that can destroy reputations and terrify victims: amounting to a “cyber civil rights” violation. Panelists discussed cyber civil rights and legal efforts to protect victims of nonconsensual pornography. Panelists included Professor Chon; attorney David Bateman of the Cyber Civil Rights Legal Project at K&L Gates; Gary Ernsdorff of the King County Prosecutor’s Office; as well as victims of revenge porn.
Margaret Chon is the Donald & Lynda Horowitz Professor for the Pursuit of Justice, and formerly Associate Dean for Research at Seattle University School of Law. She teaches civil procedure, intellectual property, as well as race and law. She is the author of numerous articles, books, book chapters, and review essays. Professor Chon has been a member of the faculty at Seattle University since 1996.
David Bateman is an attorney at K&L Gates, with extensive litigation experience in cases involving malicious online behavior and cyber-forensics. He is a co-founder of the firm’s Cyber Civil Rights Legal Project, which provides pro bono legal representation to victims of revenge porn. He has also published works in the area of cyber security and also frequently speaks on the issue. Mr. Bateman received both his B.A. and J.D. from Yale Law School.
Gary Ernsdorff has 20 years of trial experience as both a public defender and as a prosecutor in King County. Having worked for the King County Prosecutor’s Office for the past 15 years, he has extensive trial experience, including domestic violence and cyber civil rights issues. He also serves as the Board President of the Domestic Abuse Women’s Network (DAWN). Mr. Ernsdorff received his J.D. from UW Law School.
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This response to a keynote speech by Judge Margaret McKeown explores some dimensions of copyright in addition to its dominant function as a set of market-facilitating exclusive rights. The recent possible trend towards protecting privacy and other non-commercial concerns via copyright law is not necessarily inconsistent with its historical usages, does not necessarily threaten freedom of expression and may further important privacy policies. The balance of these competing policies is shifting, especially in an environment of proliferating digital content where cyber civil rights may need further development in response to cyberbullying. It examines the specific case of non-consensual pornography as a means of exploring possible doctrinal and policy directions. Ultimately it endorses a less formalistic and more flexible use of copyright to address harms currently under-recognized by our existing legal frameworks. – SSRN Abstract
Danielle Keats Citron
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. These destructive groups target individuals with defamation, threats of violence, and technology-based attacks that silence victims and concomitantly destroy their privacy. Victims go offline or assume pseudonyms to prevent future attacks, impoverishing online dialogue and depriving victims of the social and economic opportunities associated with a vibrant online presence. Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating digital “scarlet letters” that ruin reputations.
Today’s cyber attack groups update a history of anonymous mobs coming together to victimize and subjugate vulnerable people. The social science literature identifies conditions that magnify dangerous group behavior and those that tend to defuse it. Unfortunately, Web 2.0 technologies accelerate mob behavior. With little reason to expect self-correction of this intimidation of vulnerable individuals, the law must respond.
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. – SSRN Abstract
If you were unable to attend this presentation, it is available via video recording here: Social Justice Mondays Recordings.