Category: Culture

How the Supreme Court Made Life Harder for Victims of Cyberstalking

It was such a busy Summer that I never got a chance to write about the Supreme Court’s June decision in the cyberstalking case Counterman v. Colorado. The story caught my attention when legal scholar and president of Cyber Civil Rights Initiative Mary Anne Franks tweeted, “the Supreme Court has just decreed that stalking is free speech protected by the First Amendment if the stalker genuinely believes his actions are non-threatening. That is, the more deluded the stalker the more protected the stalking.” [1] The key facts as summarized in the opinion are as follows:

Billy Counterman sent hundreds of Face­book messages to C. W., a local singer and musician. The two had never met, and C. W. did not respond. In fact, she tried repeatedly to block him, but each time, Counterman created a new Facebook account and resumed contacting C. W. Several of his messages envisaged vio­lent harm befalling her. Counterman’s messages put C. W. in fear and upended her daily existence: C. W. stopped walking alone, declined so­cial engagements, and canceled some of her performances. C. W. even­tually contacted the authorities. The State charged Counterman un­der a Colorado statute making it unlawful to “[r]epeatedly . . . make[] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.”

Read accounts of people who have been cyberstalked, and the stories are often harrowing. The content of the stalker’s communication doesn’t even have to be threatening, though it usually gets there. Just knowing that somebody (usually a man) has selected you (usually a woman) as a target for unwanted attention can be unnerving to the point that it can have life-altering consequences including general anxiety, fear of movement, fear of speech, job and opportunity loss, and even suicide. That can be true even if the stalker doesn’t take or induce any action outside cyberspace, though many incidents that begin online eventually become physical and violent contact.

To be clear, no member of the Court defended (nor do I believe would defend) Counterman’s conduct. The question addressed was what legal standard should have been applied in the enforcement of the Colorado law to determine the threshold where the defendant’s speech is no longer protected by the First Amendment. At trial, the state court applied an “objective” standard to determine whether the content of the speech at issue would be perceived by a reasonable observer as a “true threat,” a term of art that encompasses one category of unprotected speech—threats of violence.

The Supreme Court majority held that Colorado erred by not applying a “subjective” standard, under which it must be shown that the defendant intended to threaten plaintiff or had reason to know that the speech at issue was threatening; and the Court further held that it would be sufficient to show that a defendant recklessly disregarded the threatening nature of his communications. Hence, Dr. Franks’s observation that the more unreasonable the cyberstalker the more likely his online harassment will be protected speech. And how many cyberstalkers are reasonable?

Sound Dissent by Justice Barrett

Noting that I do not have a deep knowledge of the relevant case law, Justice Barrett’s dissent (joined by Thomas) reads as the better argument—both as law and common sense. The dissent argues that the majority singled out “true threats” in this case for preferential treatment to fashion a “Goldilocks decision” (i.e., inventing a middle ground that is neither necessary nor consistent with precedent). “True threats do not enjoy First Amendment protection, and nearly every other category of unprotected speech may be restricted using an objective standard,” the dissent states.

The extent to which the Court departs from precedent is difficult to comment upon without studying all the underlying First Amendment case law, but Justice Barrett’s focus on “context” rings soundly as a rationale that an objective standard can maintain the balance between protected and unprotected speech. “…the statement must be deemed threatening by a reasonable listener who is familiar with the ‘entire factual context’ in which the statement occurs [citation omitted]. This inquiry captures (among other things) the speaker’s tone, the audi­ence, the medium for the communication…” Barrett writes.

Indeed, any target of online stalking knows instinctively that words as seemingly unthreatening as You look lovely today may indeed be threatening if, for example, the statement comes from a stranger or an angry, obsessive ex-husband or boyfriend. Weighing the legality of speech without context—not just online, but anywhere—is a half-baked analysis. For instance, “Vote for me or you won’t have a country anymore” delivered on the stump is protected hyperbole, while “Fight like hell, or you won’t have a country anymore” delivered to an angry mob ready to march to the Capitol is considered by many reasonable observers to be incitement.

Justice Barrett highlights the Colorado cyberstalking statute (and notes that other states have similar laws) as an example of a contextual, objective analysis in which juries are instructed to weigh the defendant’s communications in a five-factor test to thoroughly understand the nature of the speech.[2] “Each considera­tion helps weed out protected speech from true threats,” she writes, and again, this strikes me as the more rational approach to address the alleged crime at issue.

Further, the dissent argues that the majority leans heavily and improperly on the 1964 case New York Times v. Sullivan. There, the Court held that it is necessary to prove that a defendant showed reckless disregard for the known falsity of a statement in order for a public figure to obtain damages relief for libel or defamation. But citing subsequent case law from 1974 and 1985, Justice Barrett argues that Sullivan applies to public parties while, “A private person need only satisfy an objective standard to recover actual damages for defamation. And if the defamatory speech does not involve a matter of public concern, she may recover punitive damages with the same showing.” [Citations omitted]

Assuming the dissent is correct about the majority’s inapt reliance on Sullivan in this case, the public/private distinction is significant because a typical cyberstalking incident involves ordinary citizens rather than public figures—let alone “matters of public concern.” If someone tweets at Sen. Tuberville and calls him a sniveling, treasonous, ignorant weasel who should have been aborted, that is paradigmatically protected speech. Elected officials volunteer for public scorn as a bedrock principle of the First Amendment,[3] and it would be an offense to two of the amendment’s freedoms if it were sufficient to find some cohort willing to call that tweet a “true threat.” Thus, evidence of the speaker’s intent and ability to cause violence must be present before his speech may be considered unprotected.

By contrast, the cyberstalker who tells his target that he wishes she were dead or writes that her death is imminent or that he hopes she gets raped, etc. may not express a “true threat” by words alone, but in context, the messages can have the same effect as a “true threat.” Even facially innocuous communication can be used to make a private individual feel threatened, especially when she has no idea who she’s dealing with, or what his intent might be.

By the time the target of a cyberstalker turns to law enforcement for relief, she has usually suffered substantial harassment, fear for her safety, and some form of irreparable damage to her liberty and/or financial interests. In Counterman, the Court compounds these injuries by elevating the standard for punishing an alleged cyberstalker to one in which a jury must read the mind of the defendant to find that he both understood and recklessly disregarded the threatening nature of his communication. This sets the bar higher than necessary in cases where the speech at issue is of no public interest other than, in most cases, making it stop.

The Tech-Utopian Concept of the Speech Right Lives in this Case

Unsurprisingly, the Electronic Frontier Foundation filed an amicus brief for the petitioner in Counterman stating, “This Court should make clear that the definition of a true threat necessarily includes a subjective speaker’s intent to threaten.” True to form, the EFF inflated its brief with praise for the scope, scale, and cultural significance of social media; and it cites examples of violent terms or rhetoric, which may be interpreted as threatening but may still be protected. Notably, no variant of the word stalking appears in the EFF’s brief.

All that general discussion about the value of social media as an alleged free speech machine may be true in certain contexts, but it should be seen as irrelevant in regard to cyberstalking. Because here’s where the “digital rights” organizations err, and where the Court has now made matters worse:  cyberstalking is action more than it is speech. It may take the form of words and/or images, but the ongoing contact itself is intended to cause suffering, and very often, it succeeds in doing just that. As Dr. Franks put it, quoted in Reuters shortly after the decision:

It is deeply disappointing that the Supreme Court has chosen not only to allow stalkers to act with impunity, but to do so on the basis that stalking is free speech protected by the First Amendment. In doing so, they have sentenced victims of stalking to potentially lifelong sentences of terror, as well as increasing their risk of being killed by their stalkers.

If you or anyone you know is a target of cyberstalking the two best resources I know are Cyber Civil Rights Initiative  and the Carrie Goldberg Victims’ Rights Law Firm.

[1] Dr. Franks also offered some sharp comments about the joking around at oral arguments, reflecting insensitivity to the dangers and traumas experienced by targets of cyberstalking. https://twitter.com/ma_franks/status/1648724142198226946

[2] (1) the statement’s role in a broader exchange, if any, including surrounding events; (2) the medium or platform through which the statement was communicated, including any distinctive conventions or architectural features; (3) the manner in which the statement was conveyed (e.g., anonymously or not, privately or publicly); (4) the relationship between the speaker and recipient(s); and (5) the subjective reaction of the statement’s intended or foreseeable recipient(s).

[3] This is a reference to Sen. Tuberville’s holding up military promotions to protest the DOD’s healthcare policy vis-à-vis abortion.

Photo source by: SBArtsMedia

Hacked Off at Facebook

Well, it finally happened. After criticizing the worst effects of social media for over 10 years, I was finally hacked, locked out of my Facebook account, and (I assume) will be unable to restore any of the material or connections going back to 2007. I’m sharing the details in this post because what I now believe to be a phishing-style attack had the appearance of Meta erroneously booting me for failure to comply with community standards. And frankly, Meta is so useless from a support standpoint that it hardly matters.

Whether Facebook moderators are in error, or the account was targeted by a hacker, there is no clear process for the average user to remedy either issue—just a Kafka-designed carousel of unhelpful articles and FAQs. And of course, beyond Facebook’s garden wall, one finds more scammers with offers to “help” because if you recently fell prey to a hacker, you’re bleeding in shark-infested waters.

Hacker or Facebook Moderators?

I say the attack was phishing-like because the initial communication did not come through email. Those are common enough and usually easy to spot. The email with the slightly blurry logo and wrong URL that claims to be your bank or insurance company or some other party with a message, invoice, or payment for you is trying to get you to click a link and download malware. As I say, these are easy enough to recognize and delete. But in this case, the communication came from within the Meta/Facebook environment—and not just as a DM in the Chat app.

Initially, I received messages from “Meta Business” in the Meta Business section of the platform. These were directed to me as the administrator of the Illusion of More page and not to me personally. I was told that IOM had been reported for (get this!) a copyright violation. As I do not engage in copyright violations, I responded to say that an error had been made, believing that I was writing to Meta since I was clearly on the Meta Business page and not some bogus URL. Unsurprisingly, there was no response, and a few days later, I was told in the same thread that my business page had been disabled. But the IOM page was not disabled, and I did not know what to make of the messages, especially when communication with Meta is not an option.

A few days later, I received a message directed to me personally, again within the Facebook platform, stating that an attempted login had occurred from an unusual location. I took the recommendation to change my password, and I do not believe I clicked on anything outside the Facebook universe such that I might provide the new password to a hacker. Nevertheless, several hours later, my personal account was disabled, and the relevant email and phone number were newly associated with an account called “Meta Copyright Infringement.”

I created a new personal account and did a search for “Meta Copyright Infringement” as People and found that many accounts have suffered this same fate. Some appear to still have pages intact, while others are blank:

Attacks of this nature have been reported since at least the start of 2023, but the articles I found all describe phishing via email, which is usually the vector. But unless I was truly distracted, all communication I received was within the Meta environment, and if hackers are spoofing Meta from within Meta, this implies a new and sophisticated campaign to acquire login credentials.

As for the rationale of the hacker(s), it is hard to say. In my case, as a copyright advocate, I can be a target for an anti-copyright hacker who just wants to mess with me. But so far, nothing inappropriate seems to have appeared on Facebook in my name. In fact, that account appears to have been deleted altogether. On the other hand, this just happened, so we’ll see. In the meantime, I no longer have control of two business pages, including Illusion of More on Facebook, because I was the sole administrator.

As mentioned above, this apparent hack is barely distinguishable from Meta disabling my account for an alleged violation of community standards, and the company offers zero remedies to address either issue. I mean, yeah, there’s a Help Center, but it makes the average DMV look like a hotel concierge. Meta provides a “review form” for disabled accounts, but this “form” only asks the customer to input a name, email, and a copy of ID to prove identity. But, of course, if the email entered is associated with a disabled account, you get a message saying that the account doesn’t exist, which indicates a hack, so…

Follow the instructions for recovering an account you think was hacked, and Meta will help you identify the account associated with the email…

Assuming that’s what FB thinks my account is now, I reluctantly click This is My Account, and…

And you can guess where that link “here” leads. Yup. Right back onto the carousel playing the calliope from Hell mocking you for getting on the ride in the first place.

I don’t know. Maybe I missed a clue somewhere in the attack, but the most compelling detail here is that it looked a lot like communication from Meta and within Meta. In fact, if Meta were to contact me at some point and confirm that they did kick me off for an alleged copyright violation, I would not be very surprised—except that it would still be an error. But apparently, this is what support looks like for a platform hosting three-billion people:  when we can’t quite tell the difference between a cyber-attack and half-assed moderation insulated from its users by layers of bullshit.

What Does the Valancourt Decision Mean for Most Creators?

As discussed in an earlier post, Valancourt Books, a small, on-demand publisher, filed suit against the Copyright Office and the Department of Justice and argued that the Office’s demand for physical copies of published books is unconstitutional. Valancourt alleged that the authority granted by §407 of the Copyright Act to demand the copies (or be fined) is a violation of both the First Amendment speech right and the Fifth Amendment prohibition against a government taking of private property without “just compensation.” This week, the DC Circuit Court of Appeals agreed with Valancourt’s Fifth Amendment takings claim and declined to weigh the First Amendment claim.[1]

We agree with Valancourt that Section 407’s demand for physical copies of works, as applied by the Copyright Office here, represents an uncompensated taking of private property under the Takings Clause. We need not reach Valancourt’s First Amendment claim, as it seeks the same relief through that challenge.

Background (Summarized from Post of August 2021)

Valancourt produces books on-demand from old, rare, and hard-to-find manuscripts, including some dating back to the 18th century. Although many of the underlying works Valancourt republishes are long in the public domain, the companion material in their editions (e.g., scholarly introductions and footnotes) are subjects of copyright; and some of the manuscripts they print are still under copyright protection and used by permission of living authors or their estates. So, although the publisher does not register its books with the Copyright Office, it does place copyright notices in the front matter to alert readers that either the underlying manuscript and/or supporting materials are protected.

In 2018, Valancourt began receiving letters from the Copyright Acquisitions Division (CAD) of the Copyright Office demanding physical copies under the statutory deposit copy provisions of §407. The initial demand was for two copies of each of Valancourt’s 341 published titles. The publisher stated that this represented a significant financial and logistical burden and, finding no satisfactory relief in the Office’s compromise offers, they filed suit on the constitutional allegations. The district court ruled in favor of the government, and the DC Circuit has now reversed.

The Heart of the Decision

The most substantive aspect of the Valancourt decision is the court’s holding that the demand for physical copies is a taking because the publisher does not receive any benefit for supplying the copies. “A voluntary exchange for a benefit…does not exist if the purported ‘benefit’ is illusory,” the opinion states. Because copyright attaches automatically to any work fixed in a medium of expression, a party like Valancourt truly gets nothing in exchange for providing physical copies.

What the Valancourt decision means for most individual creators is not much, but it may be easy to confuse the issues here with the registration process (§408) in which deposit copies are a requirement of the registration application. Many creators are aware that in order to apply for copyright registration, they have to send in a copy of their work. That is governed by §408. In contrast, §407 allows the Library of Congress – through the Copyright Office – to demand a copy of any work published in the United States. Sending a copy for registration under §408 can satisfy the requirement under §407, but because Valancourt does not register the books it publishes, that was not relevant here. Consequently, the Office’s demand for physical copies (based solely on the act of publication) is acutely unjust in this instance because Valancourt gets absolutely nothing for providing free copies for the Library’s collection at its expense. This is distinctive from the deposit copies required for registration.

The deposit copy submitted for a registration application, whether electronic or physical, is less likely to be viewed as a taking because the applicant voluntarily obtains key enforcement advantages by complying with the registration requirements. Registration is not mandatory for copyright rights to subsist but is (among other things) a prerequisite to filing an infringement claim in federal court. Physical copies are required with a registration application if the work is published at the time of the application and if the work is first published in physical form, but again, because this is a condition of registration, and registration provides tangible benefits, this deposit condition is less likely to be found a taking.

That said, where the Office may exercise its right to demand copies based on publication (§407), the Valancourt decision may have some interesting implications. For example, if an author registers a final-edit manuscript in electronic form and later publishes that material, she (or the publisher) may receive a demand to provide physical copies or face a fine for failing to comply. But after Valancourt, the demand for physical copies solely at the threshold of publication, would seem to be a taking because, again, the author/publisher gets no additional value in exchange for providing the copies. The underlying registration (e.g., in the previously unpublished manuscript) is not invalidated by a failure to provide post-publication physical copies.

This is More About the Library of Congress than Copyright Law

In Valancourt, we see one example of the tension that can arise between the interests of the Library of Congress and the efficient administration of copyright protection for creators. As discussed in other posts, the often-confusing formalities in U.S. copyright law are largely due to the historic, but not always compatible, relationship between the two institutions. The Copyright Act of 1870 consolidated registration and deposit at the Library for the purpose of growing the collection, and in 1897, the Copyright Office was established within the Library as both the administrative and expert agency.

But as the outcome in Valancourt highlights, the author/publisher’s copyright interests and the Library’s authority to demand copies are in conflict. With 1870 barely visible in the rearview mirror, the Library still wants free materials, but Valancourt shows that this mission is not wholly predicated on the author/publisher’s interest in obtaining the full advantages of copyright protection. And perhaps this is especially true in a modern, digital-age market.

Notwithstanding the unpublished manuscript scenario above, most publishers send physical deposit copies with registration applications for published—or about to be published—books.[2] But if the Valancourt decision stands, it is conceivable that many publishers, especially smaller presses, will argue that they are allowed to submit electronic copies or must be compensated for the cost of sending physical copies. We shall see whether the government appeals this decision to the Supreme Court, but in the meantime, most creators can file this case under the heading Conversation for Copyright Nerds and continue registering their works with electronic deposits. In any event, please remember to register immediately—before your work is published and before it can be infringed – to get the full protection of the Copyright Act.

[1] FWIW, I wonder whether Valancourt’s speech claim would have merit because it seems that Plaintiff would have to show that the demand for physical copies, though enforced inconsistently, is content based. City of Austin v. Reagan National Advertising of Austin, LLC, 142 S. Ct. 1464 (2022).

[2] There are good reasons to do this, not the least being that the physical book is the final draft of all the material being registered.