Wednesday, June 18, 2014
One needs to spend little time online to experience the wrath of easily and oft-slighted morons. Say something about anything on a message board and you're bound to draw the attention of someone looking for space and a target for their frustrations. Such tirades are usually humorous in their simplicity, but occasionally their authors cross the line. However, as The Atlantic's Noah Berlatsky reports, a notable study by the Center on Law and Information Policy at Fordham Law School finds that victims of online harassment find little relief from the law. Berlatsky writes:
[The study's authors] point to the case of United States v. Alkhabaz, in which the defendant described in detail on a Usenet message board violent sexual acts he imagined performing on one of his classmates. The case was eventually thrown out because the defendant did not email the story to his classmate, and did not intend her to see it. As the authors say, "Alkhabaz demonstrates that the burden to determine a 'true threat' is quite high, and presumably most hostile online speech would fail to meet the standard determined by the Sixth Circuit." In fact, [Alice] Marwick and [Ross] Miller found very few incidents in which a harasser faced criminal penalties. It hardly ever happens.
Despite such difficulties, it's not clear that it would be a good idea to make it easier to criminalize online speech. As the authors say, "People from all sides of the political, social, and economic spectrum use ‘internet vigilantism’ to target and shame those they disagree with, from Men’s Rights activists shaming feminist filmmakers to feminists shaming writers they believe to be sexist." There are already high-profile discussions which frame activism by women of color online as abusive. If online speech is criminalized, it seems likely that the most powerful speakers won't be targeted first.
So, if the police are unlikely to act, and the First Amendment makes most legal remedies impossible, what can you do?
Practically, the path most victims have taken is to use the legal system not to win a judgment, but to subpoena IP records. Legal proceedings can allow victims to unmask and potentially publicize the names of their anonymous harassers. This is what Lori Stewart eventually did. After going to the police, she was able to discover the harasser's identity; Robin B. King, a 56-year-old Defense Department employee based in the Saint Louis suburbs. (In April, King pleaded guilty to a misdemeanor count of harassment through electronic communication, according to local news reports.)
Unfortunately, even identifying harassers doesn't necessarily stop them. As Marwick told me in an email: "Right now unmasking anonymous users is often seen as the best option by the harassed, often because it's very very difficult to pursue criminal proceedings and service providers are not legally required to remove content or reveal information about their users. However, that doesn't mean it's an effective solution. While the threat of revealing IP addresses and ‘real names’ can deter some harassers, it's certainly not true for all."
Marwick added that Lori Stewart's threat to reveal Robin King's identity didn't end his harassment. Stewart had to actually get a restraining order, and press charges.
Ultimately, the best way to deal with harassment is probably not legal, but communal. Marwick told me that, "there are places on the internet where such harassment does not happen, whether due to the culture and norms of the site, or aggressive moderation." She pointed to Metafilter "which discusses all manner of controversial and personal issues. It costs $5 to set up an account, and postings can easily be flagged and removed." Another example (that Marwick doesn't mention) is Comic Book Resources, a comics website which revamped its message boards after one of its writers received rape and death threats.
Hiring moderators and policing comments can be expensive, and the logistics become very difficult when you're dealing with something as large as Twitter or Facebook. Still, Marwick and Miller suggest that getting Twitter and Facebook to deal more proactively with harassment is likely going to be easier, and more effective, than trying to pass new laws, or increase prosecutions. And smaller venues, too, have a responsibility to prevent harassment and protect users—all the more so since the government is not likely to do it for them.