Last Week in Tech Policy #52: Cyberbullying

(by Angel Antkers, Colorado Law 2L)

Can you imagine a complete invasion of your privacy? Nude images intended only for a significant other’s eyes can be leaked online, as Robert Kardashian did earlier this year with pictures of his ex-fiance Blac Chyna,  Several other celebrities have encountered their own intimate images hacked and shown online.

Revenge porn is not the only form of online harassment. Online figures, such as game developers Brianna Wu and Zoe Quinn and media critic Anita Sarkeesian, have been targeted during the Gamergate controversy with posts containing personal information, like their social security numbers and addresses, and even threats of assault, rape, and murder. These types of threads have even included the  threat of a mass shooting at a university, which prevented Sarkeesian from delivering a presentation, as well as threats that forced Sarkeesian to flee her own home. Despite FBI opening an investigation regarding the Gamergate threats against Wu and Sarkeesian, it was eventually closed.

Celebrities and people with a notable online presence aren’t the only ones subjected to cyberbullying. The phenomenon has increasingly spread to the lives of average people, including teenagers and young adults.

People subjected to cyberbullying have been known to suffer from depression, PTSD, or have even taken their own lives. Tyler Clementi killed himself after finding out his roommate had invited others to view a live webcam feed of Clementi having sex with another man; his roommate later plead guilty to invasion of privacy. 15-year-old Audrie Potts took her own life after discovering that three boys had sexually assaulted her after she passed out at a party and shared images of the assault among other students via social media and text messaging. Potts’ story is featured in the Netflix documentary Audrie and Daisy, which follows the story of two young girls subjected to sexual assault and the cyberbullying that ensued.

With the increasing trend of cyberbullying and revenge porn, legislators have begun addressing these issues. In the wake of Clementi’s death, the Tyler Clementi Higher Education Anti-Harassment Act was proposed in order to help defeat cyber bullying on campus. Rep. Katherine Clark (D-MA) has introduced the Online Safety Modernization Act of 2017 in an effort to outlaw certain online harassing behavior and provide funding to police and the FBI to fight these cyber related crimes.

Some critics have argued that these laws do not go far enough. Some states may only classify non-consensual porn as harassment. Certain state laws may require the distributor of the image to be a former partner, or prove that the act of distributing the content was malicious. These states may also require that there was an intent to “harm or harass.” 

Critics argue that malice and “harm or harass” requirements leave gaps in the law. Some have suggested that non-consensual porn should be instead be understood as a privacy violation being no different than trespass, voyeurism or distribution of medical information—i.e., that there is a reasonable expectation that it will remain private.

Congresswoman Jackie Spieier has helped to introduce the Intimate Privacy Protection Act. This bill would make it illegal to distribute a:

[V]isual depiction of a person who is identifiable from the image itself or information displayed in connection with the image and who is engaging in sexually explicit conduct, or of the naked genitals or post-pubescent female nipple of a person, with reckless disregard for the person’s lack of consent to the distribution.

Opponents, including the American Civil Liberties Union, have argued that these laws raise issues with free speech.

Meanwhile, platforms, including Google, Reddit,  Facebook, and Twitter have taken steps to remove revenge porn from the web. Just this year a New York college student, who was the victim of revenge porn, sought a legal injunction to delete her name entirely from search engines.

What are some solutions to mitigate online harassment and bullying? Is there a way to do so without encroaching on free speech? Should revenge porn site owners be held responsible? Should more financial resources be allocated to handle and investigate these types of issues?