Amanda Levendowski on "Defragging Feminist Cyberlaw"

Amanda Levendowski has posted a forthcoming article, Defragging Feminist Cyberlaw, on SSRN. The article is forthcoming in volume 37 of the Berkeley Tech. L. J. in 2023. The abstract explains: 

In 1996, Judge Frank Easterbrook famously observed that any effort to create a field called cyberlaw would be “doomed to be shallow and miss unifying principles.” He was wrong, but not for the reason other scholars have stated. Feminism is a unifying principle of cyberlaw, which creates tension with feminist values. Cyberlaw simply hasn’t been understood that way—until now.

In computer science, “defragging” means bringing together disparate pieces of data so they are easier to access. Inspired by that process, this Article offers a new approach to cyberlaw that illustrates how the feminist values of consent, accessibility, and safety shape cyberspace and the laws that govern it. Consent impacts copyright law and fair use, the DMCA, criminal laws, and free speech. The copyright doctrine of fair use allows other people to use copyrighted works without consent under certain conditions—and without concern for the desires of photographic subjects. The DMCA was enacted to prevent accessing others’ content without consent, which can include the distribute of nonconsensual intimate imagery. The latter issue has also encouraged scholars to call for new criminal laws combating consentless invasions of privacy and dignity. Two other laws, the ADA and the FOSTA/SESTA amendments to Communications Decency Act (CDA) Section 230, influence web accessibility. Plaintiff lawyers made web accessibility for disabled people an urgent legal issue by strategically suing corporations with inaccessible websites. But technological access is not the only hurdle for an accessible cyberspace. After the enactment of the FOSTA/SESTA amendments to CDA 230, sex workers found themselves increasingly isolated from the Internet due to overaggressive content moderation policies adopted by interactive service providers, a trend that bears out with other marginalized communities as well. And safety influences privacy law and the CFAA. Technologically tracking abortion doctors and pregnant people exposes those people to increased risks of harassment by both anti-abortion activists and police. Computers are used to spread hateful messages or fantasize about hurting women, but the CFAA cannot always be used to respond—often for the better. This Article concludes that feminist cyberlaw is a new term, but feminism has always been foundational to making sense of cyberlaw.