Evelyn Jacobs Ortner Center on Family Violence

2.11.17
Whose Civil Liberties?: Legislative Responses to Technology-Facilitated Violence Against Women. Synopsis of comments presented at 2016 Ortner symposium by Mary Anne Franks, Professor, University of Miami School of Law

Dr. Mary Anne Franks

University of Miami School of Law

Synoposis of comments presented at

Technology & Women: Protection & Peril

October 21, 2016

 

U.S. law has historically failed to adequately recognize and respond to harms that disproprotionately burden women, especially sexual harms. As violence against women, aided by rapidly evolving technology, advances in scale, degree, and sophistication, legal responses have stagnated. The fact that influential civil liberties groups have actively undermined legislative reform against sexualized abuse is cause for concern and careful analysis. The controversy over “revenge porn” laws provides an illuminating example. The attempt to frame nonconsensual pornography, which disproportionately affects women, as an issue of freedom of speech for putative perpetrators rather than a issue of privacy for putative victims is reflective of a larger, disturbing tendency to treat women's constitutional and civil rights as secondary and subordinate to men's. Legislative reform, such as the 2016 Intimate Privacy Protection Act, is essential not only to the specific fight against nonconsensual pornography and other forms of sexualized harassment, but also to the larger project of recognizing women’s full humanity.

 

Self-styled defenders of the Internet have long been fond of anti-regulatory, quasi-anarchic rhetoric.[1] This is perhaps best illustrated by the 1996 “Declaration of the Independence of Cyberspace” by John Perry Barlow, one of the founders of the Electronic Frontier Foundation. Barlow’s vision for “cyberspace” free of the constraints of law is eloquent and ambitious: “We are creating a world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth. We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.” The declaration was written in response to the Telecommunications Act of 1996, a bill that introduced major federal regulatory measures for the Internet. Among the most controversial measures were those of the “Communications Decency Act” that attempted to suppress “obscenity and violence,” many provisions of which were later struck down by the Supreme Court for violating the First Amendment. In his declaration, Barlow tells the “Governments of the Industrial World” that they “have no sovereignty where we gather” and that their “legal concepts of property, expression, identity, movement, and context do not apply to us.”[2]

 

Barlow’s anarchic, utopian vision for cyberspace is stirring, and its influence on Internet law and policy continues to be evident today. His declaration both reflected the popular thinking about cyberspace in its early days and shaped how the general public, legislators, and civil liberties groups would think about the regulation of the Internet for decades. That is why it is important to recognize that this declaration, and the vision that inspired it, is incoherent, elitist, and hostile to gender equality.

 

First, the incoherence. The very ground on which Barlow’s organization, the Electronic Frontier Foundation, stakes its legitimacy is a legal one. The work of the EFF, which describes itself as “the leading nonprofit organization defending civil liberties in the digital world,” is centered on the First Amendment and Section 230 of the very Communications Decency Act against which Barlow railed in his declaration. The EFF and likeminded entities draw their authority from U.S. “legal concepts” of “expression.” A quick look at the EFF’s website makes clear that defending civil liberties in the digital world entails using the law and legal concepts – indeed, the concept of “civil liberties” is itself a creation of law.

 

And the history of the evolution of civil liberties and civil rights in America should be instructive here. That history teaches us that securing a world where “all may enter without privilege or prejudice” has never been possible without the extensive intervention of law. The still-incomplete project of racial equality, for example, would not exist if not for the amending of old laws and the creation of new laws. The Thirteenth, Fourteenth, and Fifteenth Amendments were all vital to this project, as were Supreme Court decisions like Brown v. Board of Education and federal legislation like the Civil Rights Act of 1964. It will not be completed without further legislative reform of many of our current systems and practices.

 

Second, the elitism. There is a notable omission in Barlow’s litany of “privilege and prejudice”: there should be, Barlow tells us, no discrimination based on “race, economic power, military force, or station of birth.” It is as though, in 1996, it were not perfectly evident that one of the most prevalent and pernicious forms of privilege and prejudice was based on gender. It is as though women and girls were not being sexually assaulted, beaten, harassed, and stalked because of their gender, and as if men and boys were not engaging in this abuse because of theirs. It is as though it were not evident that women and girls were constantly being treated like second-class citizens offline, and finding that there was no escape online either. Instead, they were confronted with rape threats, harassment, and unwanted sexualization everywhere from chat rooms to video games. The invisibility of gender discrimination in Barlow’s declaration signified a broader indifference and even hostility to the experiences of women on the part of those shaping the tech industry. 

 

Just two years before Barlow’s published his declaration, President Bill Clinton signed the 1994 Violence Against Women Act (VAWA) into law. This legislation was a long-overdue recognition that the violence that women and girls experienced at the hands of men and boys was a civil rights issue – that this violence kept women and girls from fully exercising their rights of expression, movement, and participation in civic life. The law was controversial from its inception and has continued to generate controversy as it is amended and re-authorized. In 2006, VAWA was amended to address what is colloquially referred to as “cyber stalking,” setting out a somewhat unwieldy definition of the prohibited conduct. The language of this provision was revised in 2013 to read, in relevant part, that any person “with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that places that person in reasonable fear of the death of or serious bodily injury …or…causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person… shall be punished.”

 

The response from two of the most influential civil liberties organizations in the U.S. was sharply critical. Both Barlow’s Electronic Frontier Foundation and the American Civil Liberties Union (ACLU) objected to the cyberstalking amendments to VAWA. According to the EFF, the cyber stalking provision “strayed the statute from what is permissible under the First Amendment. By allowing criminal liability for causing "substantial emotional distress," the law was dangerously vague as it hinged on a person's subjective state of mind rather than an objective threat to do harm.”[3] The ACLU similarly criticized the law for allowing “prosecution when the defendant acts with the intent to "harass" and/or "intimidate"—which are…. unconstitutionally overbroad” terms.[4] Both of these highly influential civil liberties organizations claimed, in effect, that focusing on the “emotional distress” of victims and the “harassing” motivations of perpetrators transformed an otherwise legitimate law into an illegitimate one.

 

Both organizations were at pains to declare that they supported the goals of VAWA and that their objections stemmed purely from fealty to the First Amendment. That is, their objections to the cyberstalking provision of VAWA should not be read as indifference towards violence against women, but were simply a manifestation of a general anti-regulatory, pro-free speech approach to the Internet, an approach that has sometimes been characterized as “First Amendment absolutism.” Such an explanation is complicated, however, by two facts: one, that absolutism has never been an accurate description of or plausible ambition for First Amendment doctrine, and two, the fact that these very same organizations have taken strongly pro-regulatory stances when it comes to other forms of online abuse. Speech that causes serious harm and does little to further the public interest has long been regulated in the U.S.: fighting words, incitement, obscenity, fraud, criminal conspiracy, child pornography, securities regulation, and perjury are just a few examples. In particular, both the EFF and the ACLU have been very vocal about the need to protect the right of privacy in an age of rapid technological advancement. Privacy protections by definition entail restrictions on the flow and disclosure of information – that is, they limit speech – and yet these organizations recognize that such regulations do not violate freedom of speech, but instead serve to enhance it.

 

The EFF warns, “New technologies are radically advancing our freedoms but they are also enabling unparalleled invasions of privacy…. National and international laws have yet to catch up with the evolving need for privacy that comes with new technology.”[5] In particular, the EFF has urged the importance of our right to share intimate information with trusted sources without fear of it being exposed to wider audiences: “We all want our medical information to be private, because we believe it should be something that’s between us and our health care providers.[6] The ACLU states on its Technology and Privacy Project webpage that “We are dedicated to ... expanding the right to privacy and increasing the control that individuals have over their personal information; and ensuring that civil liberties are enhanced rather than compromised by new advances in science and technology.”[7] The ACLU has urged the Federal Trade Commission to go after data brokers who buy and sell information about consumers[8]; supported[9] the Genetic Information Nondiscrimination Act as a means of protecting “extremely personal sensitive information”; and encouraged Congress to pass legislation that would require patient consent for the use of medical records for “secondary purposes.”[10] The ACLU advocated in support of a bill that would make negligent disclosures of geolocation data a federal crime[11] and authored state laws forbidding merchants from asking customers for Social Security numbers on pain of criminal penalty.[12] Like Barlow, the EFF and the ACLU may make bold claims about leaving law out of cyberspace, but in practice, they are constantly invoking law – including legal restrictions on speech - to justify the protection of values they deem important.

 

 The only question, then, is when these groups support restrictions of speech and when they do not – indeed, when these entities will characterize a law as restricting speech and when they characterize it as protecting a right. Based on their differing approaches to cyberstalking and privacy provisions, it seems that these groups consider harassment laws to be violations of free speech and privacy laws to be protections of rights. Accordingly, a reasonable prediction could be made that the element that determines whether these groups will support or criticize a legislative measure is whether the underlying harm it seeks to prevent involves harassment or privacy. If these are distinctions made on principle rather than preference, and truly have nothing to do with indifference to violence against women, one would expect these groups to be supportive of the recent legislative reform on the issue of so-called “revenge porn,” as the invasion of privacy is the conduct’s core harm. However, the opposite has been true.

“Revenge porn,” more accurately described as “nonconsensual pornography,” refers to the disclosure of sexually explicit images and video without consent and for no legitimate purpose.[13] The term encompasses footage obtained by hidden cameras, consensually exchanged images within a confidential relationship, stolen photos, and recordings of sexual assaults. Domestic abusers use the threat of disclosure of intimate photos to keep their partners from leaving or from reporting abuse to law enforcement.[14] Traffickers and pimps use nonconsensual pornography to keep unwilling individuals in the sex trade.[15] Rapists record their attacks to further humiliate their victims and to discourage them from reporting sexual assaults.[16] Nursing home workers post nude photos of elderly and disabled patients to social media.[17] According to a nationally representative study by the Data & Society Research Institute, 1 in 25 Americans has been a victim of or threated with the disclosure of intimate images.[18] As many as 3000 websites feature “revenge porn,”[19] and this material is also disseminated through social media, blogs, emails, and texts.

 

Nonconsensual pornography can cause immediate, devastating, and in many cases irreparable harm. A vengeful ex-partner, opportunistic hacker, or rapist can upload an explicit image of a victim to a website where thousands of people can view it and hundreds of other websites can share it. In a matter of days or even minutes, that image can dominate the search engine results for the victim’s name, as well as being sent to the victim’s family, employers, co-workers, and peers. Victims are threatened with sexual assault, stalked, harassed, fired from jobs,[20] and forced to change schools.[21] Some have committed suicide.[22] While nonconsensual pornography affects both male and female individuals, available evidence to date indicates that the majority of victims are women and girls and that women and girls face often more serious consequences as a result of their victimization.[23]

 

Nonconsensual pornography also imposes harms on society as a whole. The practice normalizes nonconsensual sexual activity and sexual surveillance. It sends the message that sexual exploitation is an acceptable form of entertainment or punishment, or both, especially of women who act in ways men find unacceptable. It is not surprising that many female targets of nonconsensual pornography are successful women, from movie stars to politicians to law school students. The predominantly male perpetrators and predominantly male consumers of these images can be described as attempting to put powerful women “in their place.” This abuse inhibits women’s expression, movement, and participation in society, which leads to a loss of women’s voices in workplaces, schools, and community as a whole.

 

Before 2013, nonconsensual pornography was a crime in only three states. Victims mostly suffered in silence. Those that did attempt to seek help were often mocked. Even sympathetic law enforcement officers and lawyers told victims that what happened to them was “not against the law.” Largely due to the efforts of organizations like the Cyber Civil Rights Initiative (CCRI), for which I serve as the Legislative and Tech Policy Director, the social, technological, and legal response to nonconsensual pornography has been transformed in recent years. In 2015, following a cross-industry summit on the issue that featured Dr. Holly Jacobs of CCRI, major tech companies including Google, Microsoft, Facebook, and Twitter announced that they were banning nonconsensual pornography and implementing takedown procedures for victims.[24] As of August 2016, 34 states and Washington D.C. have passed laws criminalizing the nonconsensual distribution of private, sexually explicit images. On July 14, 2016, Congresswoman Jackie Speier (D-CA) introduced the Intimate Privacy Protection Act,[25] a bipartisan federal bill that was the product of years’ long collaboration with constitutional scholars, civil liberties groups, the tech industry, and victims’ rights advocates.

 

The federal bill as well as several state laws are based on the model statute I drafted on the issue in 2013.[26] The statute criminalizes the unauthorized disclosure of private, sexually explicit images or video when the disclosure serves no lawful purpose or public interest. The statute closely resembles other state and federal criminal privacy laws that prohibit the unauthorized disclosure of material such as medical records,[27] financial data,[28] and cell phone usage information.[29] As such, legislative reform based on my statute should have found support from groups dedicated to the protection of privacy. And yet that did not happen. Instead, both the ACLU and the EFF objected to bills based on the model statute. Their reason? These laws did not include a provision requiring an intent to harass or cause emotional distress – the very element that they criticized as unconstitutional in VAWA’s cyberstalking provision. The ACLU in particular took it objections very far – it brought suit against the first Arizona revenge porn law for lacking such a requirement, and engaged in aggressive attempts in several other states, including Washington, Minnesota, and Rhode Island, to force legislators to amend their bills to include such a requirement.[30]

 

What is one to make of this response? These very organizations claimed VAWA’s focus on “emotional distress” and “intent to harass” violated the First Amendment and impermissibly restricted speech, even as they claimed that regulations of speech to protect privacy were constitutional. These organizations know, better than most, that laws seeking to prevent the harms of harassment are on much less stable constitutional footing than laws seeking to prevent the harms of privacy violations. North Carolina and New York courts have recently found that cyberbullying laws that included such clauses violate the First Amendment, noting that phrases such as harass, torment, and embarrass, are unconstitutionally vague. [31] Why, then, would organizations like the ACLU insist on mischaracterizing nonconsensual pornography as a harassment issue rather than a privacy issue? By their own logic, such a characterization likely means that these laws will be declared unconstitutional. In the meantime, they will be of little use to the thousands of victims who are targeted by people motivated not by an intent to harass but by greed or voyeurism.

 

But perhaps that is the point. Treating nonconsensual pornography as a harassment issue instead of a privacy issue effectively “demotes” the harm. By declaring, against all evidence, that nonconsensual pornography is a harassment issue and not a privacy issue, these groups have both trivialized a harm disproportionately targeted at women and made it much more difficult for victims of this harm to seek justice.

 

Civil liberties groups’ opposition to legislative protections of intimate privacy, based on no coherent constitutional or policy principle, are helping revenge porn site operators continue to destroy the lives, careers, reputations, and personal relationships of thousands of people, mostly women, so long as their motives are greed or voyeurism. They are helping rapists distribute footage of sexual assaults on social media, nursing home workers to upload nude photos of elderly patients for entertainment,[32] and police officers to trade naked photos of women they’ve detained as a “game.”[33] They are helping men believe that they have rights, while women only have privileges. Which leads us to the question: whose liberties are these groups really protecting?

 

Notes

 

[1] See Mary Anne Franks, Unwilling Avatars: Idealism and Discrimination in Cyberspace, 20 Colum. J. Gender & L. 224 (2011); excerpted in Internet Law: Cases and Problems (James Grimmelmann, ed.).

[2] https://www.eff.org/cyberspace-independence

[3] https://www.eff.org/deeplinks/2013/03/vawa-well-intentioned-still-unconstitutional

[4] https://www.aclu.org/blog/new-expansion-stalking-law-poses-first-amendment-concerns?redirect=blog/free-speech/new-expansion-stalking-law-poses-first-amendment-concerns

[5] https://www.eff.org/issues/privacy

[6] https://www.eff.org/issues/law-and-medical-privacy

[7] Privacy and Technology, ACLU, https://www.aclu.org/technology-and-liberty

[8] Chris Calabrese, Federal Trade Commission Needs to Move Beyond Reports When It Comes to Data Brokers, ACLU (May 28, 2014),

 https://www.aclu.org/blog/technology-and-liberty/federal-trade-commission-needs-move-beyond-reports-when-it-comes-data

[9] ACLU Letter to the Senate Urging Support of S. 358, the “Genetic Information Nondiscrimination Act of 2007, ACLU,

 https://www.aclu.org/technology-and-liberty/aclu-letter-senate-urging-support-s-358-%E2%80%9Cgenetic-information-nondiscriminatio

[10] ACLU Urges Congress to Define Medical Privacy as Patient Control of Electronic Health Records, ACLU (July 23, 2008),

https://www.aclu.org/technology-and-liberty/aclu-urges-congress-define-medical-privacy-patient-control-electronic-health-

[11] ACLU, It's Time to Bring Privacy Laws Up to Speed with New Technology (March 20, 2013), https://www.aclu.org/news/aclu-and-bipartisan-supporters-urge-passage-bill-check-gps-tracking-police

[12] Rhode Island ACLU, Social Security Numbers (H 5202, S 179),

 http://riaclu.org/legislation/bill/social-security-numbers-h-5202-s-179/

[13] See Mary Anne Franks, Revenge Porn Reform: A View From the Front Lines, Florida L. Rev. (forthcoming 2017).

[14] See Jack Simpson, Revenge Porn: What is it and how widespread is the problem? The Independent, July 2, 2014; Annmarie Chiarini, “I was a victim of revenge porn.” The Guardian (Nov. 19, 2013), http://www.theguardian.com/commentisfree/2013/nov/19/revenge-porn-victim-maryland-law-change.

[15] See Ann Bartow, Pornography, Coercion, and Copyright Law 2.0, 10 Vand. J. Ent. & Tech. L. 799, 818; Marion Brooks, The World of Human Trafficking: One Woman’s Story, NBC Chicago (Feb. 22, 2013), http://www.nbcchicago.com/investigations/human-trafficking-alex-campbell-192415731.html.

[16] Tara Culp-Ressler, 16 Year-Old’s Rape Goes Viral on Twitter, Think Progress (July 10, 2014), http://thinkprogress.org/health/2014/07/10/3458564/rape-viral-social-media-jada/.

[17] See Charles Ornstein, Nursing Home Workers Share Explicit Photos of Residents on Snapchat,

Pro Publica (Dec. 21, 2015) https://www.propublica.org/article/nursing-home-workers-share-explicit-photos-of-residents-on-snapchat

[18] https://datasociety.net/blog/2016/12/13/nonconsensual-image-sharing/

[19] Revenge Porn: Misery Merchants, The Economist (July 5, 2014), http://www.economist.com/news/international/21606307-how-should-online-publication-explicit-images-without-their-subjects-consent-be

[20] See Ariel Ronneburger, Sex, Privacy, and Webpages: Creating a Legal Remedy for Victims of Porn 2.0, 21 Syracuse Sci. & Tech. L. Rep. 1 (2009), 10.

[21] See Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49 Wake Forest L. Rev. 345 (2014).

[22] Emily Bazelon, Another Sexting Tragedy, Slate, April 12, 2013, http://www.slate.com/articles/double_x/doublex/2013/04/audrie_pott_and_rehtaeh_parsons_how_should_the_legal_system_treat_nonconsensual.html.

[23] See Jill Filipovic, Revenge Porn is About Degrading Women, The Guardian (Jan. 28, 2013), https://www.theguardian.com/commentisfree/2013/jan/28/revenge-porn-degrades-women; Danielle Citron, Cyber Stalking and Cyber Harassment: A Devastating and Endemic Problem, Concurring Opinions (March 16, 2012), http://www.concurringopinions.com/archives/2012/03/cyber-stalking-and-cyber-harassment-a-devastating-and-endemic-problem.html.

[24] Jessica Roy, How Tech Companies are Fighting Revenge Porn – and Winning, New York Magazine (June 24, 2015), http://nymag.com/thecut/2015/06/how-tech-companies-are-fighting-revenge-porn.html.

[25] https://www.congress.gov/bill/114th-congress/house-bill/5896

[26] https://www.cybercivilrights.org/model-state-law/; https://www.cybercivilrights.org/ccri-model-federal-law/

[27] http://www.law.cornell.edu/uscode/text/42/1320d-6

[28] http://www.statutes.legis.state.tx.us/SOTWDocs/PE/htm/PE.31.htm

[29] https://www.law.cornell.edu/uscode/text/47/222

[30] See Franks, Revenge Porn Reform, supra note __.

[31] See Eugene Volokh, N.C. court strikes down ban on posting ‘personal or sexual information’ about minors ‘with the intent to torment,’ Wash. Post (June 11, 2016) https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/11/n-c-court-strikes-down-ban-on-posting-personal-or-sexual-information-about-minors-with-the-intent-to-torment/; David L. Hudson Jr., NY high court says anti-cyberbullying law won't pass First Amendment muster, ABA Journal (Nov. 1, 2014) http://www.abajournal.com/magazine/article/bully_fighting_new_yorks_high_court_says_anti_cyberbullying_law_wont_pass_f

[32] See Charles Ornstein, Nursing Home Workers Share Explicit Photos of Residents on Snapchat,

Pro Publica (Dec. 21, 2015) https://www.propublica.org/article/nursing-home-workers-share-explicit-photos-of-residents-on-snapchat

[33] See Gafni & Fraley, supra note __