What legal routes are available to people facing online harassment, and what policies might need to be changed to better address this issue?
Today at the MIT’s Comparative Media Studies/Writing Colloquium, we were joined by Danielle Keats Citron (@daniellecitron), author of Hate Crimes in Cyberspace, a book that describes the harms experienced by victims of online harassment and outlines the related legal issues. Danielle is the is Lois K. Macht Research Professor of Law at the University of Maryland Francis King Carey School of Law. Her work focuses on information privacy, cyber law, automated systems, and civil rights. Citron is also an advisor on the California Attorney General’s Task Force Against Cyber Exploitation.
Citron is also joined by game developer Brianna Wu (@spacekatgal), head of development at Giant Spacekat games, whose game Revolution 60 received wide critical acclaim. Brianna is also creator of Isometric, a podcast with a focus on equity of participation in gaming. Wu has also notably received particularly violent and intense threats over the last year, in relation to the GamerGate controversy. After Danielle presented her talk, Wu offered a response.
Special thanks Wang Yu and the anonymous contributors who helped write this post.
What is cyber-harassment, asks Danielle? It’s a course of conduct targeted at a particular person that causes emotional distress and the fear of physical harm. It’s often perpetrated in four ways. The first mode of attack is to do whatever you can to terrorize someone: threatening physical violence, impersonating someone online or putting up their address. The second mode of attack is to do what you can to hijack someone’s career. The third way we see harassers attack victims is to invade privacy, hacking someone’s computer to obtain confidential information and then posting that information, often posting nude images. Finally, attackers use technology to shove people offline, whether through Distributed Denial of Service attacks or false claims that someone’s behaviour is abusive — thereby knocking them offline.
Danielle illustrates this with two examples, starting with the story of Anita Sarkeesian. Two years ago, Anita Sarkeesian was a media critic who had posted YouTube videos about sexism in video games. Anita wanted to fund a documentary series on Kickstarter. About a week after the announcement of the Kickstarter campaign, a cybermob “descends” sending her graphic images in her inbox. A game was created called “beat up Anita Sarkeesian” that invited gamers to harm a virtual image of her. The cybermob decided to attack her campaign, Kickstarter received hundreds of complaints, false reports that her work was hate speech, spam, or terrorism. Because Anita was well-known at the time, people at Facebook and other platforms got in touch with her, and she was able to forestall the knocking down of her campaign. However, her website was subject to DDOS campaigns that set out to take down the site, which were often successful for days at a time.
During the GamerGate controversy in 2014, Anita started to receive texts and emails, not only with graphic descriptions of how people would harm her, but also with her home address. Two days before a talk at a Utah State University, the dean received an anonymous note saying that if Anita Sarkeesian were to speak at the school, there would be a school shooting. The event was cancelled.
This issue isn’t limited to prominent women. Danielle, who interviewed over 60 people for her book, notes that they’re primarily everyday women and men – from nurses or dentists to a stay-at-home mom. One example is Holly Jacobs, a graduate student who broke up with her longtime boyfriend after several months of graduate school. Holly started to get strange texts and emails saying that they were following up with her advertisement. When Holly googled her name, she found was that there were over 300 revenge porn and adult singles sites that had posted nude photos, a video of them having sex that she wasn’t even aware of, her address, cell-phone number, and text saying that she was interested in sex. Other sites claimed that she was sleeping with her students. Holly was devastated.
Based on the information in the sites publishing this unsolicited information, someone sent an email purporting to be from her to her employer with links to the sites. The dean of the school received anonymous emails accusing her of sleeping with her students. The dean gave the advice: “change your name. I can’t have a graduate student teaching students that can Google you and this is what they see.” Danielle can talk about her because now Holly runs the Cyber Civil rights Initiative and an anti-harassment campaign to End Revenge Porn. When Holly attempted to take down the material, most of the sites ignored her. Some of the sites wrote back and said “we’ll take down the nude photos if you pay us 400 dollars.” Only a few sites took down the photos.
Stories like this aren’t unusual, says Danielle. Based on a 2006 study from the Bureau of Statistics, over 800,000 people experience some kind of cyber harassment. According to a nationally-representative study on online harassment by Pew, 25% percent of women between 18 and 24 experience some kind of cyber stalking, as defined. Men also experience these kinds of threatening or humiliating speech, photos, and personally-identifying information.
What can law do right now about this?
Victims could potentially sue their harassers for a variety of civil tort claims. But it’s incredibly expensive to sue. Even if you have the resources, it’s often true that harassers don’t have deep pockets, and it’s not worth your time and energy to sue them. Furthermore, we know that platforms are immune from liability under the section 230 of the Communications Decency Act. There’s no one with deep pockets to sue.
Under criminal law, we have laws about threats, stalking, and harassment that we can enforce today. But part of the problem is underenforcement says Danielle. When victims go to law enforcement, officers are unfamiliar with the technology or law and say, “eh, turn your computer off and ignore it.” It’s really hard for victims when you have to admit you don’t know something and you don’t know when to start. That’s why Danielle has been working with law enforcement in California to create checklists for law enforcement.
In 40 percent of states, says Danielle, harassment laws don’t cover cases where content is published widely on third party sites. They only cover what’s sent directly from perpetrator to victim. Danielle describes a case where the abuse was sent to employers and family members — the State of New York didn’t count that harassment. In 32 states, it’s not a crime to invade someone’s privacy by posting their nude photos in violation of their trust and confidence.
We also must understand online harassment as civil rights violations, argues Danielle, alongside its connection to torts and crimes. When a cybermob goes against Anita Sarkeesian, what motivates them? When we try to take away someone’s fundamental life opportunities because they’re part of a protected group, that’s a civil rights violation. When people harass someone like Anita Sarkeesian, it’s a message to all women, not just Anita.
Danielle argues that online harassment is fundamentally a first-amendment issue. The first amendment does not operate in absolutes. We protect speech because we want to give breathing room to speech, but there are certain categories of speech that the Supreme Court have long held that get no protection, and speech that is given less rigorous protection.
Law is a blunt instrument, says Danielle. It moves slowly and it takes time to support people to use it. Another approach is to work with companies, something that Danielle has also been involved in. Although platform companies technically have no responsibility over user generated content, Danielle argues that companies have to take a stand, referring to recent policy changes by Reddit and new Twitter policies as examples. Danielle also to companies like Microsoft, who says are working hard at getting enforcement right to create systems that value fairness. She wanted to hear big shots at big gaming companies and say “this is not okay.” Danielle draws an analogy to the Mothers Against Drunk Driving, a campaign started in the 1980s by an advocacy group that is now “baked into who we are.” She argues that it’s important for companies to say that harassment is not okay, make clear to users what they consider harassment, and explain to users what happens if they violate terms of service and community guidelines. It doesn’t mean the stop of speech, only a sign that what’s accepted there.
Let’s not despair, says Danielle. In the 1960s and 1970s, women in the workplace were told that if they didn’t like workplace harassment they should leave. When the law stepped in, we started to understand culturally that women shouldn’t have to leave if they didn’t like abuse. We can make the same shift today, and we’re early in the history of our networked tools, and it’s something that we need to do together as digital citizens. To the audience at MIT, she encourages designers need to build privacy and safety into our systems from the very first.
Response by Brianna Wu
Brianna Wu also gave a presentation at the event, noting that the problem of online harassment is “multi-factoral,” with a need for a wide variety of people involved and taking a wide set of approaches.
Brianna opens by arguing that GamerGate and the forces associated with it began in 2012 with Anita Sarkeesian. When Anita launched FeministFrequency, she received horrible rape and death threats– “all sorts of abusive behaviour.” Brianna started to wonder, “what if that was me?” She described Anita Sarkeesian as patient zero, with the tactics used against her evolving into a “playbook” that others have used against women.
The July Incident – Critiquing Giant Bomb
The gaming industry had been burning for a while, Brianna says. She mentions a “July Incident” experienced by a gaming journalist in 2014. There aren’t many prominent women in games. That year, this journalist sent out a tweet critiquing “Giant Bomb,” a website that caters to a particular kind of player, non-inclusive of people who aren’t straight, white, cisgendered, or male. After this tweet, people followed the “playbook,” going through her life, publishing information and shaming her. The reason people do this is to turn the person into a monster, using information from their past to justify targeting that person. This journalist eventually left the industry and isn’t coming back– depriving the industry of one of the best and brightest voices.
The Zoe Quinn Incident – The Start of #GamerGate Hashtag
Brianna next describes the experience of Zoe Quinn, whose ex-boyfriend published private information expressly to destroy her life and career. Brianna calls this the most sexist incident in the history of videogames because it involves destroying a women as form of entertainment.
Where is this hatred coming from? Brianna explains that women used to be a small percent (3%) of game players, but they are now 52% of game players. The average gamer is now a 36 year-old woman and not a teenage boy. GamerGate comes from a past where some people feel threatened by these changes, she argues. All year long, GamerGate have been attacking women one-by-one with the same playbook. They look into information from someone’s past, publish it, and try to threaten them out of the industry. “Imagine how it is not just for me but for all the people out there” says Brianna, citing Leigh Alexander and Mattie Brice as two more examples of women who stepped back from the industry to some degree after facing harassment. “I run a company and I see my friends being picked up one by one,” Brianna says. The outcome of this playbook is fear and terror at what might come next.
Brianna next tells the story of what happened to her, telling us the story of Isometric, a podcast that featured women in videogames. Brianna had also been critiquing GamerGate publicly, not caring if they came after them. After someone from the show created a meme of claims from the podcast, the website 8chan (an offshoot of 4chan) saw it and got involved. Participants on 8chan spent an entire day creating new, dehumanizing memes that threatened her with rape and murder.
This moment presented Brianna with a choice. One option was to step away, hoping that the problem would go away. Would she stay silent and let them continue, or would she stand up for what she believed in? She expected that if she continued to speak out, what happened to Zoe would also happen to her. Yet Brianna decided to stay around and keep making games. After making that choice, participants in 8chan decided to dox her, mixing the threats with information about her address. When she called the police, they visited her, took a report, and told her to “turn your electronic devices off for the rest of the evening.” At that point, she and her husband left their home.
One response is to reach out to the press. After the games industry continued chosen to stay silent about the problem of harassment in the summer of 2014, Brianna decided that games companies and games press were never going to say anything and reached for wider media coverage in the New York Times, CNN, MSNBC, The Guardian, and many other outlets.
Another approach is to work behind the scenes with the companies involved. As a CEO, Brianna is able play a role behind the scenes, talk to people and bring about change. Brianna argues that there’s a role that lawyers can play. Activists and media critics like Anita Sarkeesian can also bring this criticism more widely. “We need you,” says Brianna. “We need people to stand up and say, this is not acceptable any more.” She argues that it’s not enough to believe that women are equal; we need to challenge the unconsciousness biases that reinforce the problem.