Category: Digital Culture

Professor Citron Proposes Civil Remedies for Violations of Intimate Privacy

At a panel hosted by The Reykjavik Dialogue,[1] during a discussion about law enforcement, justice, and sex discrimination, Mary Anne Franks, co-founder of the Cyber Civil Rights Initiative noted that when her organization asked perpetrators who had engaged in revenge porn what would have stopped them from doing it, the answer was almost universally, “If I thought I could go to jail for it.”

The act of distributing intimate, private images via the internet without permission of the persons depicted is a crime—one that causes ongoing harm to victims, including harassment and violence, destruction of interpersonal relationships, loss of employment opportunities, psychological disorder, and suicide. And thanks substantially to the efforts of Franks and her colleague at CCRI, Danielle Keats Citron, nearly every state has criminalized the act of nonconsensual distribution of intimate images; and a federal bill to do likewise, the SHIELD Act, passed the House in March as part of H.R. 1620.

But while these laws pave the way for prosecution of the individuals who engage in this conduct, they do nothing about removing these violations of intimate privacy from the websites hosing the material. And to make matters more complicated, “deepfakes” technologies make it relatively easy to depict just about anyone in intimate or sexually explicit material for which they were never actually photographed.

Citron Proposes Privacy Injunctions

In a new paper that addresses the nonconsensual distribution of both real and manufactured images, Citron proposes two interdependent legal mechanisms to overcome the hurdles to removing this kind of content from the internet, and she also discusses the First Amendment questions raised as both a constitutional and a cultural matter.

First, Citron argues that courts must be empowered with “clear legislative permission” to provide plaintiffs with injunctive relief by ordering sites “to remove, delete, or otherwise make unavailable intimate images, real or fake, hosted without written permission.” One might think this is common sense, or simply a matter of basic decency, but court orders to remove material of any kind have been assiduously opposed by internet platforms large and small, and with considerable legal and PR support from “digital rights” activists like the Electronic Frontier Foundation. (See post here and here about Google v. Equustek & Hassell v. Bird.)

The rationale usually argued in the blogosphere and the courts for refusal to remove any content is the First Amendment—a fallacy that now roils the public debate—but the legal foundation that has given the platforms the swagger to distort the speech and press rights has been the courts’ over-broad interpretation of Section 230 of the Communications Decency Act as a blanket immunity. Not only have platforms been shielded against being named parties to civil litigation, but 230 has been invoked as the reason to shield them even from injunctions that do nothing more than order the removal of harmful material. Naturally, when a web company cannot be held liable for anything, it’s very easy for its operators to call all content “speech” and tell the public that all platforms are inherently engines of free expression.

Thus, in order for the above-mentioned legislative permission to be effective, Citron argues, as she and Franks have in earlier papers, that, “Congress should amend Section 230 to make clear that platforms and search engines can be sued in cases seeking injunctive relief and attorney’s fees related to the removal of intimate images hosted without written consent.”

Citron acknowledges that the solution is not perfect, particularly because litigation directed at one incident on one platform does not address the likelihood that intimate images will be distributed across multiple sites; but she writes, “Victims need to know that society recognizes the damage to the dignity and intimate privacy of victims, that law can help mitigate the damage, that sites are not law-free zones, and that lawyers will represent them.”

If that sounds like Citron’s proposed remedies are more symbolic than remedial, I will echo her comparison to civil rights legislation and argue that we should not underestimate even the symbolism of law to effect widespread remedies by fostering cultural and behavioral change. Presumably, most people do believe the act of distributing intimate images without permission is wrong, whether for revenge or any other motive. So, it helps when the law says it’s wrong, too. But at the same time, Citron addresses a broader cultural phenomenon in which Americans in particular struggle with our brand of the speech right and the distinction between access to information and prurient curiosity.

As a constitutional question, when a law intersects rights like those enumerated in the First Amendment, it must be held to the standard known as strict scrutiny. This means that a statute must serve a compelling public interest and must achieve a narrow purpose that cannot be achieved through less restrictive means. Here, Citron notes that the state laws criminalizing the nonconsensual distribution of intimate images have already held up to constitutional challenges in Vermont, Illinois, and Minnesota, but she also discusses that gray area where the public’s right to know is often too easily conflated with general interest.”By my lights, there can be a vast difference between learning about a public official’s intimate information and seeing photographs or videos documenting it. That distinction is worth careful consideration,” Citron writes.

Agreed. Specifically, did the American public have a right to know that Rep. Katie Hill was intimately involved with a member of her staff and, allegedly, using marijuana? Yes. Even though I personally do not care much what an elected official does in her private life unless it directly intersects with the official role, those allegations are certainly news that voters have a right to know. But I agree with Citron that there is a moral line—I would say a chasm—between a news report about Hill’s conduct and the publication of her intimate images (albeit semi-redacted) on the site RedState.

Hill sued RedState owner Salem Media,[2] and the publisher was granted a motion to dismiss the complaint under California’s anti-SLAPP law,[3] with the court finding, in Citron’s words, that “the photos shed light on Hill’s fitness for office.” The hell they did. How the information about Hill’s conduct sheds light on her fitness for office is up to the voters, but the leaked photos were nothing more than RedState’s opportunity to earn revenue by pandering to the worst impulses of the electorate, which increasingly cannot distinguish between political discourse and tribal brutality. RedState’s publication of the photos is barely distinguishable from revenge porn disguised as political reportage.[4] And to add insult to injury, Hill had to pay $200,000 for Salem’s legal fees.

As Citron notes, “Most cases involving the nonconsensual disclosure of intimate images will not present close calls about the boundaries of the public’s legitimate interest.” And, of course, this is correct. Most individuals who engage in this kind of behavior are not even propaganda mongers, let alone journalists. But I do suspect the techbro culture of the internet, where perhaps the blurry lines we see on a RedState re. Hill or a Gawker re. Hulk Hogan, imply to those other bros who violate intimate privacy that what they are doing is not criminal. It is. And it is time for the laws to catch up to that reality.

[1] Renewing Activism to End Violence Against Women www.rekjavikdialogue.is

[2] Hill’s counsel is Carrie Goldberg, leading specialist in this area.

[3] Strategic Lawsuit Against Public Participation.

[4] To be clear, I would say the same thing about the publication of similar photos of Reps. Boebert or Greene for whom I have nothing but contempt.

Fight for the Future Doesn’t Speak for Artists (or anyone else)

Fight for the Future recently launched a new campaign website called End Creative Monopolies, and among its many vague declarations, the petition asks signatories to “demand the dissolution of the current US copyright system and a fundamental reimagining of artists’ rights and protections for the 21st century that shifts power away from creative monopolies and puts the interests of artists and the public first.”

This is a common, if irrational, refrain. The underlying syllogism declares that corporate media producers and/or legacy copyright owners are wealthy and powerful (generally true). It then claims that independent creators are struggling and powerless (also frequently true). But the conclusion that the copyright system only serves the former at the expense of the latter does not follow as a generalization at all. The story about copyright and independents is a complex conversation about specific aspects of the law—judicial, statutory, and administrative—which FFTF is neither qualified nor willing to have in any way helpful to creators.

Meanwhile, you know who actually does care about helping indie artists make the most of the copyright system? Copyright advocates.

The people who are experts in the law and also believe in maintaining its fundamental principles are consistently talking about how to make the system work better for small creators. In fact, I don’t know a single pro-copyright authority (and I know quite a few) who does not think the system could use some tinkering in a few places to better serve individual authors. But tinkering. Not dissolution of the whole system and starting with a blank slate as FFTF decrees in its new campaign. Here are just a few recent examples off the top of my head:

Terrica Carrington, VP Legal Policy and Copyright Counsel at Copyright Alliance, recently blogged about the intersection of copyright and cultural misappropriation of choreography, explaining what the #blacktiktokstrike is all about. “Cultural misappropriation is an ethical concern that is not always rooted in the law,” writes Carrington, “but in some instances, these ethical concerns overlap with the law in such a way that makes the offense not only morally wrong, but illegal. That is the situation Black creators on TikTok are being confronted with: misappropriation of culturally relevant dances that may also be copyright infringement.”

The American Music Fairness Act is backed by copyright advocates great and small because this legislation finally proposes to overturn the status quo whereby U.S. terrestrial radio broadcasters have been exempted from royalty payments to musical artists. This law directly mandates that a very big industry finally pay fair rates to individual creators, which is just one reason my friend Blake Morgan (an archetypal indie artist) was standing on Capitol Hill the day lawmakers announced the bill this past June 24th. Did FFTF back this bill? Nah.

Steven Tepp, copyright consultant and former senior counsel at the Copyright Office, recently spoke with me on the IOM podcast about some of the formalities in copyright registration and enforcement that, with even modest changes, could make copyright work better for the independent author. For example, Tepp specifically recommends making the designation “published” optional on registration applications because the uncertainty in the law as to the meaning of “published” puts small creators at a disadvantage when it comes to enforcing their rights. I know that’s wonky and arcane, but that’s what actual, sober policy reform looks like.

Prof. Lateef Mtima, founder and director of the Institute for Intellectual Property and Social Justice, spoke extensively on the IOM podcast about how essential it is to not throw out the IP baby with the bathwater. “One of the problems with some of those perspectives,” Mtima said, “is that it basically accepts a premise that the system can only be utilized for social evil and corporate benefit. As I said in the beginning [of the podcast], I fundamentally don’t think that way, but as a practical matter, that’s not particularly helpful.”

Copyright Alliance, whose key members include several of the big media companies FFTF is complaining about, has filed pro-copyright amicus briefs in cases that have major implications for small creators. Allen v. Cooper, Unicolors v. H&M, Canada Hockey LLC v. Texas A&M University, Brammer v. ViolentHues Productions, Fourth Estate v. Wall-Street.com, VHT v. Zillow, to name a few.

Oh, and what was that law that passed at the end of 2020 that FFTF and its sister organizations tried so hard to kill? The Copyright Alternative in Small-Claim Enforcement (CASE) Act? Arguably, this is the most significant amendment to U.S. copyright law ever written with the sole purpose of helping independent creators, and FFTF, EFF, PublicKnowledge, et al opposed it. And worse, they lied about CASE being a big media bill, which is absurd on its face because big media doesn’t need a small claim option.

Specifically, on the subject of music, the good folks at FFTF should be ashamed of themselves for citing Spotify as a predator that pays songwriters pennies. I mean Spotify is a predator that pays songwriters pennies, but where was FFTF when the songwriters started mentioning this problem about ten minutes after the platform launched in 2011?* I know! They were being founded. Coincidentally at the very same time the Internet Association was established, the anti-piracy bills SOPA/PIPA were being hammered by Silicon Valley, and Google increased its lobbying expenditures from negligible to the top five. One might almost get the idea that FFTF was forged in a crucible of tech money for the purpose of weakening copyright law.

With Friends Like FFTF?

Independent artists already know the difficulties when it comes to protecting their work and enforcing their rights. I interact with some of these creators almost every day. And not once have I seen a writer, musician, photographer, etc. say, “Wow, I’m struggling because Disney is too big.” Why they usually say is, “Some clown just posted my work on his website or used it in his commercial or in a YouTube video, etc. without permission.” Or quite commonly, “A foreign counterfeiter is selling my stuff on Amazon or eBay.” These are the kind of problems copyright advocates discuss all the time.

Policy changes are hard. Look how long it takes to get infrastructure legislation passed when everybody mostly agrees! Fight for the Future has a lot of nerve declaring that a system as complex as copyright law is “broken” just because they say it is and then presuming to declare that we must scrap it and “reimagine” the whole thing for the 21st century. What this really means is that they want to reimagine some of your money into their donation coffers while they spin tales about agendas they are never going to achieve. And neither should they.

*Not surprisingly, yesterday’s Bloomberg Law story about renegotiating streaming royalties never mentions Fight for the Future. Just the usual pro-copyright advocates and experts navigating this difficult path between tech giants and the copyright law.

Can We Hope to Sensibly Reform Section 230?

In a paper published in 2020, [1] scholars Danielle Keats Citron and Mary Anne Franks advocate a relatively modest and elegant approach to amending Section 230 of the Communications Decency Act of 1996—changes that would directly help the statute’s unintended victims—but it is difficult to imagine how any nuanced consideration of the 230 issue will make headway in the current political climate.

At one extreme, the Former Republican Party (FRP) has amped up “Repeal 230” into a buzzy talking point with no practical or legal merit whatsoever; while shouting from the other side of the vortex is the internet industry and its network of supposedly progressive groups, who insist that the status quo of 230 is the keystone in the entire internet ecosystem. One behavior these seemingly opposite forces have in common is that both have exploited the misconception that Section 230 has something to do with viewpoint neutrality. It does not. Neither by the letter nor the spirit of the law.

To recap, there are two main parts to Section 230 under the “Good Samaritan” clause. The first states that online service providers will not be considered “publishers” of material provided by other parties. So, whether you or I or the NYT posts something on Facebook that is potentially harmful, and also unprotected speech (e.g. defamation), Facebook is shielded from potential liability resulting from that material. The second part states that when a platform engages in moderation and removes “objectionable material,” this does not render the platform a potentially liable “publisher” either. And it does not matter whether “objectionable material” comprises illegal content (e.g. child porn) or simply material the platform proscribes according to its own terms of service.

Nothing in the 230 statute states, or even implies, that service providers are limited by the speech right—indeed, as private entities, it is their First Amendment right to moderate as they wish—or that they are obligated to maintain viewpoint neutrality as a condition of the liability shield. That said, it was the platform operators themselves who promoted the false narrative that social media sites are the shiny new “engines of speech” right up until 2016, when “objectionable material” (mostly in the form of dangerous misinformation) steadily became the largest plank in the platform of what used to be the Republican party. Meanwhile, the real victims of Section 230’s unintended consequences may continue to be ignored amid the storm of insanity encircling this one fragment of cyber law.

Simply put, Section 230 is the reason why online platforms may not be held liable when their operators host, or even encourage and monetize, any of the following:  nonconsensual pornography, child sexual abuse material (CSAM), libel and defamation, hazardous misinformation, organized hate groups, harassment, or incitements of violence. And while vested interests play rhetorical games with the allegedly blurry lines between speech and any of that material, Citron and Franks first advocate clarifying that ambiguity by striking the word information from part one of the statue and replacing it with the word speech.  “The revision would put all parties in a Section 230 case on notice that the classification of content as speech is not a given, but a fact to be demonstrated,” states their paper.

Unlike “information,” protected “speech” has a legal definition rooted in case law, and at least some of the aforementioned categories of material would never qualify as speech under legal scrutiny, while others (e.g. hate speech) would be subject to review on a case-by-case basis. Perhaps most importantly, what this single word change likely accomplishes for, say, victims of harassment, is that it would more frequently induce a platform to remove harmful material, either voluntarily or by court order, rather than choose to litigate to try to prove that the harmful content is protected speech. As things stand, almost everything online is presumed to be speech. So, if a party uses any intermediary, from Twitter to a dating app, to cause even severe harm to another party, the intermediary is under no obligation to provide relief by removing the content. And most courts have held that 230 supports this position.

Under this one-word revision, if a platform knowingly continues to host allegedly actionable material, the platform voids its presumption of immunity, which does not mean it is necessarily liable for any harm. A complainant still bears the burden to prove the merits of a complaint just like any other case, but the platform would not automatically be indemnified at the summary judgment phase of a case. Meanwhile, the only form of relief many complainants ever want is removal of the harmful content, and not necessarily a damage award from a platform that otherwise does the right thing.

In that regard, if a platform unknowingly hosts potentially actionable content, as almost any platform inevitably does, Citron and Franks advocate another modification to 230, requiring that a platform demonstrate that it maintains a “reasonable,” ongoing practice of removing objectionable material upon notice or independent discovery of the problematic content. [2] “If adopted,” their paper states, “the question before the courts in a motion to dismiss on Section 230 grounds would be whether a defendant employed reasonable content moderation practices in the face of unlawful activity that manifestly causes harm to individuals.”

This reasonableness standard would presumably accomplish two things:  first, it would provide the many platforms operating in good faith with the kind of liability protection intended by Section 230; and second, it immediately voids the liability shield for those platforms that intentionally operate as Bad Samaritans. Sites that purposely trade in libel and defamation, nonconsensual pornography, harassment (and quite possibly hate-speech and incitements to violence) would no longer be able to duck behind the Vibranium shield they have been wielding to avoid being named parties in a litigation. In many cases, this requirement to demonstrate a “reasonable” moderation policy would probably obliterate the business models for sites that intentionally profit from the misery of others, and I fail to see a downside in that outcome.

Of course, amending 230 requires an act of Congress, and there’s the rub. Not only will Silicon Valley throw its considerable resources at campaigns to leave the statute untouched until doomsday, but step one proposed by Citron and Franks—replacing information with speech—runs head-first into the existential crisis we currently face as a nation. Political speech is paradigmatically protected speech, arguably the most sacred of all forms of protected speech. But at present, one party has decided that its political speech shall embrace an insurrection of lies, outlandish conspiracy theory, and even violence against the very foundation on which the speech right itself is written. Whether we survive that paradox is a much bigger question than internet governance, but for the everyday victims of Section 230, it would be grand if we could address what is legitimately wrong with this law.

[1] “The Internet as Speech Machine and Other Myths Confounding Section 230 Reform,” University of Chicago Legal Forum (12/01/2021). https://legal-forum.uchicago.edu/publication/internet-speech-machine-and-other-myths-confounding-section-230-reform

[2] As the paper states, this proposal originates with Citron and colleague Benjamin Wittes.

Vortex image by: sondem