Category: Digital Culture

Carrie Goldberg’s “Nobody’s Victim”: Cyber-Policy is Not an Abstraction

During an exchange on this blog in 2014 with an individual named Anonymous—it must have been a very popular baby name at some point—I was told, “Yes, yes, David, show us on the doll where the Internet touched you, because we all know that all evil comes from there.”  That discussion was in context to the internet industry’s anti-copyright agenda, but the smugness of the response, lurking behind a concealed identity while making an eye-rolling allusion to sexual assault, is characteristic of the tech-bro culture that dismisses any conversation about the darker aspects of digital life.  In fact, I am fairly sure it was the same Anonymous who decided that I had “failed the free speech test” because I wrote encouragingly about the prospect of making the conduct generally referred to as “revenge porn” a federal crime.  

Those old exchanges, conducted in the safety of the abstract, came rushing into the foreground while I read attorney Carrie Goldberg’s book Nobody’s Victim:  Fighting Psychos, Stalkers, Pervs, and Trolls (Plume 2019).  Because Goldberg and her colleagues do not address conduct like “revenge porn” in the abstract, they deal with it as a tangible and terrifying reality.  It is at her Brooklyn law firm where the victims of that crime (and other forms of harassment and abuse) arrive shattered, frightened and suicidally desperate to escape the hell their lives have become—often with the push of a button.  These are people who can show us exactly how and where the “internet touched” them, and Goldberg’s book is a harrowing tutorial in the various ways online platforms provide opportunity, motive, sanctuary, and even profit for individuals who purposely choose to destroy other human beings.  

Nobody’s Victim reads like an anthology of short thriller/horror stories but for the fact that each of the terrorized protagonists is a real person, and far too many of them are children.  These infuriating anecdotes are interwoven with the story of Goldberg’s own transformation from a young woman nearly destroyed by predatory men to become, as she puts it, the attorney she needed when she was in trouble.  The result is both an inspiring narrative of personal triumph over adversity and a rigorous critique of our inadequate legal framework, which needlessly exacerbates the suffering of people targeted by life-threatening attacks—attacks that were simply not possible before the internet as we know it.

Covering a lot of ground—from stalking to sextortion—Goldberg tells the stories of her archetypal clients, along with her own jaw-dropping experiences, in a voice that pairs the discipline of a lawyer with the passion of a crusader. “We can be the army to take these motherfuckers down,” her introduction concludes, and “What happened to you matters,” is the mantra of her epilogue.  It is clear that the central message she wants to convey is one of empowerment for the constituency she represents, but the details are chilling to say the least.

Anyone anywhere can have his or her life torn apart by remote control—i.e. via the web.  All the malefactor really needs is basic computer skills, a little too much time on his hands, and a profoundly broken moral compass.  Psychos, stalkers, pervs, trolls, and assholes are all specific types of criminals in the “Carrie Goldberg Taxonomy of Offenders.”  For instance, the ex-boyfriend who uploads non-consensual intimate images to a revenge-porn site is a psycho, while the site operator, profiting off the misery of others, is an asshole. 

As Goldberg notes in Chapter 6, by the year 2014, there were about 3,000 websites dedicated to hosting revenge porn.  That is a hell of a lot of guys willing to expose their ex-girlfriends to a range of potential trauma—these include public humiliation, job loss, relationship damage, sexual assault, PTSD, and suicide—simply because the girl/woman broke off the relationship.  This volume of men engaging revenge porn does seem to imply that the existence of the technology itself becomes a motive or rationale for the conduct, but that is perhaps a subject to explore in a future post. 

One theme that comes through loud and clear for me in Nobody’s Victim—particularly in context to the editorial scope of this blog—is that the individual conduct of the psychos, et al is only slightly less maddening than our systemic failure to protect the victims.  As a cyber-policy matter, that means the chronic misinterpretation of Section 230 of the Communications Decency Act as a speech-right protection and a blanket liability shield for online service providers. 

Taking on Section 230

Goldberg’s most high-profile client Matthew Herrick was the target of a disgruntled ex-boyfriend named Juan Carlos Gutierrez, who tried, via the gay dating app Grindr, to get Herrick at least raped, if not murdered.  By creating several Grindr accounts designed to impersonate Herrick, Gutierrez posted invitations to seek him out for rough, “rape-fantasy” sex, including messages that any protests to stop should be taken as “part of the game.”  Hundreds of men swarmed into Herrick’s life for more than a year—appearing at his home and work, often becoming verbally or physically aggressive upon discovering that he was not offering what they were looking for.

With Goldberg’s help, Herrick succeeded in getting Gutierrez convicted on felony charges, but what they could never obtain was even the most basic form of assistance from Grindr.  You might think it would be at least common courtesy for an internet business to remove accounts that falsely claim to be you—particularly when those accounts are being used to facilitate criminal threats to your safety and livelihood.  In fact, the smaller dating app Gutierrez had been using called Scruff eagerly and sympathetically complied with Herrick’s plea for help.  But Grindr told him to fuck off by saying, “There’s nothing we can do.” 

Herrick, through Goldberg, sued Grindr for “negligence, deceptive business practices and false advertising, intentional and negligent infliction of emotional distress, failure to warn, and negligent misrepresentation.”  They lost in both the District Court and in the Second Circuit Court of Appeals, principally because most courts continue to read Section 230 of the CDA as absolute immunity for online service providers.  This cognitive dissonance, which chooses to ignore the fact that a matter like Herrick’s plight is wholly unrelated to free speech, is emphasized in the Electronic Frontier Foundation’s amicus brief filed in the appeal on behalf of Grindr… 

“Intermediaries allow Internet users to connect easily with family and friends, follow the news, share opinions and personal experiences, create and share art, and debate politics. Appellant’s efforts to circumvent Section 230’s protections undermine Congress’s goal of encouraging open platforms and robust online speech.“

Isn’t that pretty?  But what the fuck has any of it got to do with using internet technologies to impersonate someone; to commit libel, slander, or defamation in his/her name; to deploy violent people (or in some cases SWAT teams) against a private individual; or to get someone fired or arrested—and all for the perpetrator’s amusement, vengeance, or profit?  None of that conduct is remotely protected by the speech right, and all of it—all of it—infringes the speech rights and other civil liberties of the victims.  Perhaps most absurdly, organizations like EFF choose to overlook the fact that the first right being denied to someone in Herrick’s predicament is the right to safely access all those invaluable activities enabled by online “intermediaries.”    

No, Grindr did not commit those crimes, but let’s be real.  What was Herrick asking Grindr to do?  Remove the conduits through which crimes were being committed against him—online accounts pretending to be him.  Scruff complied, and I didn’t feel a tremor in the free speech right, did you?   If we truly cannot make a legal distinction between Herrick’s circumstances and all that frilly bullshit the EFF likes to repeat ad nauseum, then, we are clearly too stupid to reap the benefits of the internet while mitigating its harms.  

Suffice to say, a fight over Section 230 is indeed brewing.  As it heats up, Silicon Valley will marshal its seemingly endless resources to defend the status quo, and they will carpet bomb the public with messages that any change to this law will be an existential threat to the internet as we know it.  There is some truth to that, of course, but the internet as we know it needs a lot of work.  Meanwhile, if anyone is going to win against Big Tech’s juggernaut on this issue, it will be thanks to the leadership of (mostly women) like Carrie Goldberg, her colleagues, and her clients.  

It is an unfortunate axiom that policy rarely changes without some constituency suffering harm for a period of time; and those are exactly the people whose stories Goldberg is in a position to tell—in court, in Congress, and to the public.  If you read Nobody’s Victim and still insist, like my friend Anonymous, this is all a theoretical debate about anomalous cases, largely mooted by the speech right, there’s a pretty good chance you’re an asshole—if not a psycho, stalker, perv, or troll.  And that clock you hear ticking is actually the sound of Carrie Goldberg’s signature high heels heading your way.     

Trump Jr. Blasting Silicon Valley Is Unhelpful

In an op-ed for The Hill published on September 30, Donald Trump, Jr. rails against the power of the major internet platforms, saying that “free speech is under attack” by Big Tech.  His complaint, of course, is that the big internet platforms are censoring what he calls conservative voices, blaming “the technology giants that deplatform people at the behest of liberals and then justify the action as ‘combating hate.’” 

Don Jr.’s call to “break up” Big Tech is, ironically enough, a call for the industry to return to its pre-2016 policy of zero platform responsibility, to accepting revenue from any source while making little effort to mitigate hateful, violent, or illegal content—even if it happens to be paid for in Rubles.  Because of course without the babbling chaos that social media created in the first place, there would be no reality in which a patently incompetent and indecent man like Donald Trump becomes President of the United States.  Most real conservatives know this to be true and, I suspect, will be saying so in the relatively near future.

Seeking to align Trumpism with original patriotism, The Donald 2.0 extolls the virtues of a Reddit mob blasting Beto O’Rourke as if this kind of engagement were exemplary of the American Framers’ fondest ambitions for free speech and a free press. He writes …

“The free press that the founders envisioned looked a lot more like the Reddit users who roasted [Beto] O’Rourke than New York Times writers who misrepresent basic tenets of free speech and demand censorship to protect their friends from “online harassment.”  

There is nothing surprising about a Trump making a hash of history.  While Junior is perhaps correct to remind Americans that living in a society with free speech “…can be edgy, brutal, irreverent, and sometimes downright offensive,” he misrepresents the sensibilities of the Framers in a significant and telling way.  Even a digest version of the reading material makes one thing very clear about America’s key architects:  to a man, they were intellectual elitists who harbored few illusions about the hazards of democracy and the consequences of succumbing to the tyranny of the mob. Not even Jefferson, in his most Jacobean zeal, would likely view the average social-media skirmish with anything but contempt for the general abandonment of evidence-based reason in these discourses that so often devolve to threats and harassment. As scholar Mary Anne Franks writes in the abstract of her paper “Fearless Speech” …

“The American conception of free speech is primarily defined as the freedom to say whatever one wants, with little regard for the quality, context, or impact of the speech. Thus, American free speech doctrine is often characterized as neutral with regard to the speaker and the content of speech; in practice, however, it consistently privileges powerful over vulnerable speakers and harmful over critical speech.”

Perhaps most relevant to Don Jr.’s twisted premise is that the Framers who were especially apprehensive about the too-passionate mob, men like Hamilton, are the progenitors of the American conservative tradition.  Those stuffy, patrician, and, yes, arrogant authors of the United States, who tended to display a bit too much anglophilia for the tastes of many of their contemporaries, also served as intellectual ballast in a nation that was born volatile and restless.  The men who wrote the Constitution were students of the Enlightenment, not an angry, pitchfork-wielding rabble.  That was the French Revolution.

The principle that the rule of law is a foundation of liberty spawned a conservatism grounded in reason, truth, and a moral context that was at least definable, if not universal enough to embrace America’s inevitable diversity.  In short, there is no historic or doctrinal link between the Federalists and the straightjacket ravings of someone like Alex Jones.  The Founders never hoped that the speech right would foster a circus, where evidence rooted in science would be trampled by popular consensus—let alone the kind of algorithmic sabotage at work in our politics of the moment.

As surely as MTV made Madonna, Twitter made President Trump—albeit not intentionally.  Where else, other than the miasma of the Twitterverse could a man whose political bona fides began with a racist conspiracy theory attain the highest office in the land?  Big Tech’s folly is not that some of its operators finally had the sense to remove an Alex Jones or a Daily Stormer from their servers, but that they initially promoted a doctrine of internet non-governance, which fostered the only medium in which neo-Nazis and sociopaths were somehow invited into tent of conservatism.  That anyone would tolerate, let alone defend, the President’s recent tweets about “civil war” (a literal incitement to violence and treason), is the apotheosis of Big Tech’s misguided ideologies and a grotesque aberration of the Federalist cause.  

Responding as a member of an unofficial society of Big Tech critics, I find Junior’s rationale for “breaking up” Google, Facebook, et al profoundly dysfunctional and unhelpful in a policy discussion that is already difficult to have.  While many of us are advocating platform responsibility, he wants to goad those platforms to resume hosting all material without restraint, to reinvigorate Barlow’s too-idealistic notion of a world where laws do not apply.  But of course that’s what he would do.  How else could the United States suborn a President who flaunts his contempt for the rule of law and unironically asserts “alternative facts”?  That is the internet ethos in spades, and Trump’s presidency is the Golem that Silicon Valley brought to life. 

Really, Cory? Then how the hell did we get to now?

“One of the reasons Hamilton found the word democracy so offensive was because he realized that the vast majority of American citizens had not the dimmest understanding of what he was talking about.”  – Joseph Ellis –

Proving that it is easier to be a futurist than a historian, Cory Doctorow contributed a bit of soothsaying to a New York Timesseries the editors describe as follows:

… science fiction authors, futurists, philosophers and scientists write Op-Eds that they imagine we might read 10, 20 or even 100 years from now.

So, Doctorow projected himself ten years into the future, gazed back at the present, and decided that the heedless error we are making is not ignoring climate change or precipitating a completely avoidable war with Iran or even committing mass child abuse at the southern border.  No, what Doctorow considers the potential misstep of the moment could be a decision to amend the policy of zero-liability for web platforms.  That will be the decision we will regret ten years from now:  telling internet companies that they may no longer give people the finger, even when they are directly responsible for injury.  He writes …  

“Bit by bit, the legal immunity of the platforms was eroded — from the judges who put Facebook on the line for the platform’s inaction during the Provo Uprising to the lawmakers who amended section 230 of the Communications Decency Act in a bid to get Twitter to clean up its Nazi problem.”

The only point on which Doctorow and I might agree is that the reaction against Big Tech—including the chatter about regulation and possibly amending the liability shield in Section 230—is that lawmakers, the press, and the public may be responding to the wrong stories.  The efficacy with which Facebook removes unpalatable content is not the major issue. For one thing, they apparently already filter out so much garbage we never see that some of the moderators who dosee it have suffered from PTSD.  Additionally, I would agree with Doctorow that so long as these platforms are used, a certain amount of ugly is going to persist, and we are going to have to learn to deal with that as a society.

But the first order of business in addressing the immunity paradigm for websites is actually fairly low-hanging fruit from a statutory perspective.  As discussed in this post, there are websites that trade in material that, in any other context, would be sued out of existence, yet remain shielded for no reason other than the fact that they operate online.  Sites that purposely host material that is libelous, defamatory, inciting violence, vengeful, infringing, etc. is not comparable to Facebook and Twitter stumbling in their efforts to maintain civil online communities.  And Doctorow is being ridiculous when he lumps it all into one regulatory narrative. 

Individuals and businesses who are injured online through conduct that is unquestionably illegal in real space should not be left to crash into the Section 230 wall when pursuing their legal rights to relief.  It would be a major step in the right direction, and relatively easy legislative work, to make clear that websites that intentionally trade in material, which would ordinarily be actionable, no longer enjoy automatic immunity from litigation.  Done.  No draconian censorship needed, as Doctorow seems to imply. 

Why Not Tweak the Experiment?

Meanwhile, Doctorow can hardly claim that the laissez-faire approach to the internet has produced many of the benefits he seems to think will be lost if we revise our policies.  As I say, it is easier to be a futurist than a historian, and he seems to have forgotten history when he writes, “Democracies aren’t strengthened when a professional class gets to tell us what our opinions are allowed to be.”  

Perhaps not what our opinions are allowed to be, but that’s Cory being Cory—sowing fear of censorship rather than considering the more subtle effect the internet has on the valueof opinion-making.  It is not merely chance that the rapid expansion of “internet culture” coincided with the erosion of trust in professionals (i.e. experts), who have some damn good reasons to recommend what our opinions oughtto be on a number of important topics.  The aforementioned shrugging at climate change comes to mind.  

The democratization of opinion-making, leading to the inevitable folly that all opinions have equal value, may be seen by historians as a major catalyst to explain how the putative leader of all democratic republics, the United States, managed to achieve its present state of freefall on such a wide range of policies.  At no time in living memory has the federal government been manned by such a large group of temp-job hacks without a single credential to recommend them for the departments they run. 

The most powerful and extensive military force in the world has not had a legitimate Secretary of Defense since the day seven months ago that one of the most qualified commanders we have resigned because he considered the administration’s policy too incoherent to follow.  And whether they will admit it publicly or not, every serious Republican on the Hill paled at the news of Mattis’s departure but would not say so for fear of being instantaneously thrashed on Twitter by mobs of citizens who haven’t got a clue what they’re talking about.  If the free-for-all internet is so good for society, Cory, how and the hell did we get to now?  

I know what Doctorow and his friends like to say. Don’t blame the internet for the degradation of statesmanship, intelligence, common sense, and decency.  But why not?  The relatively novel introduction of social media, adding an unprecedented scope of direct democracy into the process, has been an experiment.  It is neither logical to assume, nor evident to observe, that the experiment has yielded only positive results.  So, we should not be afraid to adjust the conditions of the experiment.  I can certainly imagine looking back ten years from today and regretting plenty of policy decisions, but I don’t think holding internet companies responsible for their actions is going to be on that list.