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One scholar thinks online harassment of women is a civil rights issue

Kim Kardashian is the latest celebrity to have nude photos stolen from her cell phone.
Kim Kardashian is the latest celebrity to have nude photos stolen from her cell phone.
Anthony Harvey/Getty Images

The internet is not always a welcoming place for women.

This weekend, Kim Kardashian and Vanessa Hudgens became the latest celebrities to have private photos stolen from their phones and distributed on the internet. Recent attacks on these and other famous women have shined a spotlight on problems that non-celebrity women have been trying to get people to pay attention to for years, like revenge porn attacks and graphic threats of sexual assault.

University of Maryland legal scholar Danielle Citron is a leading expert on these issues. She says that when she started talking about them in 2008, she had trouble getting people to take them seriously. Many people portrayed online nastiness as an inevitable part of online discourse, and portrayed those who complained about harassment as whiners.

But in a new book, Citron argues that society should be a lot more concerned about the way women are treated online. She draws a parallel to the 1970s, when many people were equally dismissive about harassment of women in the workplace. Citron argues that online harassment of women should also be thought of as a civil rights issue.

We spoke by phone last week. The transcript has been edited for length and clarity.

Timothy B. Lee: Help readers understand why online harassment is an issue they should take seriously.  Why doesn't "sticks and stones will break my bones, but words will never hurt me" apply?

Danielle Citron: What we're talking about isn't mean words, like "you're ugly," the sort of things that are meant to hurt peoples' feelings. We're talking about online harassment that takes away victims' life opportunities. Harassment is accomplished with true threats, privacy invasions, involuntarily disclosed nude photos, and reputation-harming lies. We're talking about systematic harassment that destroys peoples' lives and careers.

Danielle Citron

Danielle Citron (Danielle Citron)

Just saying that is not helpful without an illustration. Look at media critic and feminist journalist Anita Sarkeesian. I interviewed her for my book, and it's worth emphasizing what she's been wrestling with.

Two years ago, she announced that she was starting a fundraising campaign on Kickstarter to create a video series to look at the sexist and demeaning ways women are portrayed in video games. Soon after she announced the campaign, a cyber-mob descended. She faced graphic rape threats and other forms of violence. A game popped up online called "beat up Anita Sarkeesian", the "game" is to beat up and bloody her face. You push any key and you see her face get more purple and beaten up.

It wasn't just to scare her, the cyber-mob tried to shut down her fundraising campaign. Kickstarter received hundreds of complaints that her effort was a fraud — it wasn't. Her YouTube channel and her Facebook and Twitter accounts all received abuse reports that what she was doing was terrorism and hate speech and spam. And her website was hit with denial of service attacks over the course of many months. They're still ongoing. That is silencing her in a way that has everything that has to do with her career.

In the last few weeks, she's received really graphic threats. The threats include her home address, her parents' home address, rape threats that are very graphic, basically "watch your back bitch we know who you are." She moved in with a friend for the last two weeks.

What's hard for Sarkeesian is that there's now a narrative: people are saying there are no threats, it's all a lie, she's a fraud. She feels betwixt and between, there are people suggesting that everything she says and does is a lie, yet it was this awful and horrible experience.

Online harassment victim Anita Sarkeesian

Back when I talked to her for the book, she said, "how do you go to the police? How do you even start to find all these people?" But after the recent threats, she's finally given up on the idea that she can handle this on her own. I urged her to go to law enforcement, and she has. It belies reality to call this mean words or "sticks and stones."

TBL: Who's at risk for this kind of harassment?

DC: It's not just people writing about politically hot topics. Another harassment victim, Kathy Sierra, was writing about software development. She faced rape threats. Online posts featured doctored photos, like one with a noose around her neck. She plugged out of online life. It fundamentally changed who she was. She used to be really comfortable in the tech community. No longer.

Her Wikipedia account is constantly being vandalized. There are still people trying to discredit her, saying she made up the threats, she's a prostitute, she's deranged.

The harm that people experience is harm to their livelihoods, harm to their reputations and lives. It affects doctors, dentists, and business people. Nude photos appear in searches of their name. Teachers have lost their jobs because their Google searches have false suggestions that they're interested in sex.

Over 70 percent of employers use Google as a tool for screening potential employees. One of the key reasons people give for rejecting a candidate is unsuitable photographs and lifestyle choices.

It's not that employers necessarily believe that victims have chosen all this, it's simply safer to hire someone who doesn't come with this baggage. A firm is going to think "what will my clients think?"

TBL: You draw an analogy to the movement in the 1970s and 1980s against sexual harassment in the workplace. What's the history there and what lessons do you think it holds for online harassment?

DC: Today's responses to online harassment directly parallel the way we once understood sexual harassment in the workplace. The response to women's struggles in the workplace was, "it's messy and personal, we shouldn't get involved." When employers demanded sex in the workplace and made sexually hostile comments, people said "Oh, get over it, it's no big deal, ignore it." Or "You look so attractive, what do you expect?"

Feminist legal scholar Catharine MacKinnon helped develop the legal theory that sexual harassment in the workplace violated civil rights laws. (Stephen Lovekin/Getty Images)

This is the exact same responses you hear today. When Kathy Sierra complained about getting harassed back in 2007, the liberal blogger Markos Moulitsas responded by writing, "if they can't handle a little heat in their email inbox, then really, they should try another line of work." He argued that it's part of online life, get over it or leave. [Disclaimer: Markos Moulitsas is on the board of Vox Media, the parent company of Vox.com.]

But leaving isn't an option for people. We can't leave the workplace. You can't leave online life and say there's no hit to your career and choices. In some professions, if you don't have an online presence, you don't have a career.

You hear from law enforcement and from commenters online: "Look the internet is the Wild West, this is just frat boy nonsense, juvenile pranks, ignore it." For people who have their nude photos online, when their confidence is betrayed and their privacy is abused, they're blamed. We also blame people who write about politics and sex: "it's your fault, you deserved rape threats and reputation-harming lies." That's just nonsense.

TBL: One big difference here is that in sexual harassment cases there was usually a specific person — your boss — who was responsible for the abuse. In online harassment cases, it seems much harder to pin down who is responsible.

DC: It's absolutely true. Laws like Title VII and Title IX of the 1964 Civil Rights Act apply to spaces in which we hold people accountable: Employers, colleges or universities. In those cases we have these spacial understandings of accountability.

But when we think about civil rights generally, that's not always how it works. The Ku Klux Klan once had vast groups of people terrorizing others. Some of the first uses of Title VII applied to the Klan's use of intimidation by private actors to prevent Vietnamese fishermen from fishing on the waters in Galveston Bay, Texas. It wasn't employers. It was gangs of individuals who targeted people simply because of who they were.

We have other civil rights laws like Section 1981, that prevent private actors from interfering with peoples' employment.

We have understood sexual harassment in the workplace as discrimination. We've come to understand that it's a public problem. We have wrestled with private anonymous mobs interfering with peoples' work lives, and we have said that's discrimination. That's a perfect analogy for civil rights problems generally.

When it comes to Anita Sarkeezian and Kathy Sierra, there's very little people know about them besides their gender. It's fairly clear that what we're doing is demeaning them, terrifying them and reducing them to their gender in a scary way. I use the workplace harassment analogy to show us that these attitudes can be overcome.

TBL: What about free speech concerns? Does the First Amendment limit our ability to regulate the kinds of speech you're talking about?

DC: There are certain categories of speech we can regulate. Some speech has no protection: true threats, defamation of private individuals, and crime-facilitating speech. For example, if someone impersonates a woman and invites men to have sex with her, that's solicitation of a crime. There are other categories of speech we give less rigorous protection.

When it comes to nude photos, posting without consent, that's one area where the lower courts are very clear, the public has no legitimate interest in nude photos posted without consent. Pamela Anderson and Tommy Lee had a sex tape stolen and put online. The court not only provided damages, it also enjoined its release. Even celebrities have protection of privacy.

TBL: Let's talk about stolen nude photos, which have been in the news recently. What remedies does the law offer now, and what would you like to change?

DC: It's certainly true that victims could in theory use privacy torts and intentional infliction of emotional distress. The problem is it's incredibly expensive to sue. And it's just not available for many cases. A lawyer called me recently who has a revenge porn victim as a client, but the defendant is judgment-proof. He has no assets. So the lawyer can't take the case on contingency. The victim has no leverage.

There are 13 or 14 states that have criminal laws about this. There's obvious resistance to criminalizing more crimes, and speech in particular. It's worthy of serious discussion. We have a problem with over-criminalization generally speaking. As Michelle Alexander has described it, that's the new Jim Crow, all these black men in jail for minor drug crimes.

The over-criminalization critique is valid, but when it comes to harms that impact women — think of domestic violence crimes — the majority of cyberstalking and harassment victims are female. We don't have an over-criminalization problem, we have under-enforcement of existing laws. It's a good critique, but the critique isn't warranted at least when it comes to these kinds of harms.

TBL: Specifically, what would you like to see change? Other states adopt the revenge porn laws we have in those 14 states? And how would you define the crime?

Citron book

(Harvard University Press)

DC: That's incredibly important. I've been working with lawmakers, in particular in Maryland. I worked very closely with the ACLU in Maryland. What we together came to was a narrow understanding of a crime, which involves the intentional disclosure of sexually explicit images, the knowing invasion of privacy — there's a mens rea requirement that the perpetrator know the photo was shared with an expectation of privacy. So any reposter who has no idea what the person expected, doesn't know them, can't be caught by these crimes. It's the initial privacy invader who really is culpable in terms of the specific intent of the crime. The statutes would be wise to only cover instances where the subject of the photos had a reasonable expectation of privacy.

It should exclude images that relate to matters of public interest. That's where courts would rule, for example, on the Anthony Weiner crotch shot. The media would never face criminal punishment. The initial, the college student who released the crotch shot of Anthony Weiner, there's a strong argument she would never face criminal prosecution as well.

TBL: Can you talk about intermediaries? This has been a topic of discussion after Reddit hosted a community dedicated to sharing stolen nude images of celebrities. Under what circumstances should companies that host or facilitate finding this kind of material be liable?

DC: In 1996, Congress passed the Communications Decency Act, a pro-censorship bill. It was proposed by two very conservative senators and two very conservative representatives. There's a part of that statute called Section 230. It has a subsection entitled "protection for 'Good Samaritan' blocking and screening of offensive material." The idea behind the immunity is that congresspeople wanted to immunize actors that engaged in good-samaritan blocking of offensive material. They didn't want them to sit on their hands for fear of liability.

There's a case right before 1996 in which the online service Prodigy was doing some monitoring. They wanted to be a family-friendly site. But they couldn't catch everything. There was defamation about Jordan Belfort, the guy who was the Wolf of Wall Street. He brought a defamation suit against people who were saying he was a fraudster. He wins the lawsuit. The rationale from the court was because Prodigy was trying to monitor the site, it was a publisher, it was taking responsibility for what appeared on the site, and therefore was strictly liable to the extent there was defamation. Congress didn't want that.

The response to the Prodigy case was that ISPs sat on their hands, they didn't want to monitor because if they monitored and did an incomplete job, they'd be liable. Congress wanted to encourage self-monitoring. It passed Section 230, which says that the provider of an interactive computer service won't be interpreted as a publisher or speaker for someone else's content.

The very worst actors here, the sites that solicit criminal content and then do nothing about it when that criminal conduct or tortious conduct is complained about, they should never enjoy immunity under Section 230. It belies the the intent of the drafters and the strict words of the statute.

In the book, I propose an amendment to 230 that sites that encourage and solicit criminal activity shouldn't be immune from liability. Sites that solicit and extort people, sites that charge for takedown of content they've encouraged, should not enjoy immunity. That's just bad policy.

Model Kate Upton had intimate photos stolen and distributed online. (Dave Kotinsky/Getty Images for the Daily Front Row)

But what about sites like Reddit where there are tons of subreddits. They're basically a platform for speech. Should we hold them accountable as distributors? I think there's an argument though I'm not yet convinced. If there are nude photos that someone hasn't consented to, and Reddit has notice, I think there's a pretty powerful argument for holding them liable.

Unlike defamation, which is hard to suss out — is this a lie, is it true? — nude photos posted without someone's consent, that's not hard to figure out what that is. So holding them responsible and excluding that immunity for knowing invasions of sexual privacy, strikes me as a sound argument.

I've really struggled with Section 230. I am in my heart a free speech activist. I see the great virtue in counterspeech, and in letting it all hang out. We're talking about liability for platforms that have such a scale that the automatic reaction to any complaint would be to take it down. There's this idea of the heckler's veto — you don't like speech that's unpopular, you complain, and they take it down. The idea of a chilling effect is pretty real. That's why I hesitate to recommend distributor liability in general.

TBL: You've been writing about this issue since 2009. How do you see public attitudes shifting on this issue since you started?

DC: It's been amazing, I have to say. I'm still not totally sold on the idea that we all agree this stuff is bad. But social attitudes have really shifted in the last two years. I gave a presentation at Yale in early 2008 about the problem of cybermobs and online harassment, and at the time the pushback to do anything about this was so profound.

It was like "look, don't touch the internet, you're going to break it. Regulating it is going to cause more problems than good." In the last couple of years, this phenomenon of revenge porn has brought alive the harm — maybe just because people can envision people they care about experiencing it. You have lawmakers and so many journalists who really get the harm. It's not that they necessarily recommend doing something drastic about it, but I feel like the number of people writing about it and giving voice to victims, and the number of people who are willing to come forward to talk about it, has really dramatically changed.

Tthe public has said this is disgusting, this is wrong. I'm really encouraged by that. I'm not sold that we've all changed our attitudes, but I'm excited about it. We're hearing and seeing the problem as a real social problem, rather than just saying we just have to suck it up.