by Danielle Keats Citron
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PART 1 OF 4
Table of Contents:
o I. ANONYMOUS MOBS OF THE TWENTY-FIRST CENTURY
A. The Destructive Nature of Online Mobs
B. The Dynamics of Mob Behavior
o II. THE COMPONENTS OF CYBER CIVIL RIGHTS STRATEGY
A. Converging the Interests of the Majority with Those of Subjugated Groups
1. Broader Societal Harm Wrought by Online Mobs
2. Traditional Tort and Criminal Laws That Should Be Invoked to Combat Cyber Harassment
B. A Crucial Deterrent and Remedy for Cyber Harassment of Vulnerable Individuals: Civil Rights Law
1. Common Civil Rights Doctrines
2. Civil Rights Doctrines Focusing on Anonymous Attackers
o III. PROTECTING ONLINE DIALOGUE
A. Online Mobs and Individual Autonomy
B. Civil Rights and the Theory of Free Speech Online
1. The Expression-Action Distinction on the Internet
2. The Values the First Amendment Protects
3. The Inadequacy of Private Responses
4. The Extent of Interference with Protected Expression
C. First Amendment Doctrine
1. Criminal and Tort Law
2. Civil Rights Law
o IV. THE ROLE OF WEBSITE OPERATORS
A. Should Website Operators Have Immunity?
B. On What Bases Should Website Operators Be Liable?
* Associate Professor of Law, University of Maryland School of Law. I owe special thanks to Taunya Lovell Banks, Robert Kaczorowski, Dan Solove, David Super, and Greg Young whose insights proved indispensable to the piece. This Article also benefited from the thoughtful comments of Ann Bartow, Richard Boldt, Karen Czapanskiy, Laura DeNardis, Martha Ertman, Lisa Fairfax, Jim Fleming, Susan Freiwald, Nathaniel Gleicher, Mark Graber, David Gray, James Grimmelmann, Debbie Hellman, Chris Hoofnagle, Sherrilyn Ifill, Frederick Lawrence, Brian Leiter, Dan Markel, Bill McGeveran, Leslie Meltzer, Helen Norton, Martha Nussbaum, Paul Ohm, Frank Pasquale, Rob Rhee, Neil Richards, Jay Stanley, Sonja Starr, Cass Sunstein, Chris Wolff, Diane Zimmerman, Jonathan Zittrain and the participants in Yale Law School’s 2007 Reputation Economies in Cyberspace symposium, the 2008 George Washington Law-Berkeley Law Privacy Law Scholars conference, the 2008 Computers, Freedom, and Privacy conference, the Yale Law School Information Society Project’s Speaker Series, the University of Chicago’s Speech, Privacy, and the Internet conference, Fordham University School of Law’s Center on Information Policy workshop, the International Network Against CyberHate Global Summit on Internet Hate, the University of Maryland Junior Faculty Workshop, and Professor Jonathan Zittrain’s Cyberlaw class at Harvard Law School. I also am indebted to my superb editor Lauren O’Leary and her cohorts at the Boston University Law Review. Elise Gelinas, Alice Johnson, Geoff Kravitz, and Susan McCarty provided superb research assistance.
Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged classes. These destructive groups target individuals with defamation, threats of violence, and technology-based attacks that silence victims and concomitantly destroy their privacy. Victims go offline or assume pseudonyms to prevent future attacks, impoverishing online dialogue and depriving victims of the social and economic opportunities associated with a vibrant online presence. Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating digital “scarlet letters” that ruin reputations.
Today’s cyber-attack groups update a history of anonymous mobs coming together to victimize and subjugate vulnerable people. The social science literature identifies conditions that magnify dangerous group behavior and those that tend to defuse it. Unfortunately, Web 2.0 technologies accelerate mob behavior. With little reason to expect self-correction of this intimidation of vulnerable individuals, the law must respond.
General criminal statutes and tort law proscribe much of the mobs’ destructive behavior, but the harm they inflict also ought to be understood and addressed as civil rights violations. Civil rights suits reach the societal harm that would otherwise go unaddressed and would play a crucial expressive role in condemning online mob activity. Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim’s employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.
New technologies generate economic progress by reducing the costs of socially productive activities. Unfortunately, those same technologies often reduce the costs of socially destructive activities. Our legal system depends upon naturally-occurring costs to deter much anti-social behavior.  A reduction in these costs often requires extending law to new classes of behavior.
Technology minimizes the costs of pro- and anti-social behavior through two opposing types of changes. Technology disaggregates. Communication advances allow people to separate their ideas from their physical presence. This is equally true for the scientist, the venture capitalist, and the criminal. At the same time, technology aggregates. Transportation advances allow a business to collaborate with far-flung strangers in various states. These same advances allow a computer hacker and a financial whiz to form a more efficient identity-theft ring and to permit terrorists to strike from afar.  Better communications allow researchers in one place to advance a concept conceived in another, but they also allow a criminal in one place to send directions on bomb-making to another who has obtained materials from somewhere else. The challenge for law is to foster positive applications of technology’s disaggregative and aggregative potential while understanding and checking as many of its destructive applications as possible.
An anti-social behavior that commonly results from technological and economic progress is civil rights abuse. As communication, travel, and trade become cheaper, and as specialized information becomes easier to transmit, people become freer to specialize in work for which they hold a comparative advantage. Specialization and commodification generate efficiencies, allowing skills to be matched more precisely with work to be done and allowing products to be matched more effectively with demand. They also, however, lead to stratification, alienation, and efforts to extend commodification so far as to threaten humanity and individuality.
For example, this was true when intercontinental land and sea travel allowed the sharing of crops, but also facilitated the slave trade. The Industrial Revolution, and subsequent waves of automation, similarly multiplied economic output while ushering in new means of degrading workers and the environment.  In our own time, advances in genetics open new doors to biomedical research and to new kinds of employment discrimination. It is equally true in our cyber age.
The Internet raises important civil rights issues through both its aggregative and disaggregative qualities. Online, bigots can aggregate their efforts even when they have insufficient numbers in any one location to form a conventional hate group. They can disaggregate their offline identities from their online presence, escaping social opprobrium and legal liability for destructive acts.
Both of these qualities are crucial to the growth of anonymous online mobs that attack women, people of color, religious minorities, gays, and lesbians. On social networking sites, blogs, and other Web 2.0 platforms, destructive groups publish lies and doctored photographs of vulnerable individuals.  They threaten rape and other forms of physical violence.  They post sensitive personal information for identity thieves to use.  They send damaging statements about victims to employers and manipulate search engines to highlight those statements for business associates and clients to see.  They flood websites with violent sexual pictures and shut down blogs with denial-of-service attacks.  These assaults terrorize victims, destroy reputations, corrode privacy, and impair victims’ ability to participate in online and offline society as equals.
Some victims respond by shutting down their blogs and going offline.  Others write under pseudonyms to conceal their gender,  a reminder of nineteenth-century women writers George Sand and George Eliot.  Victims who stop blogging or writing under their own names lose the chance to build robust online reputations that could generate online and offline career opportunities.
Kathy Sierra’s story exemplifies the point. Ms. Sierra, a software developer, maintained a blog called “Creating Passionate Users.”  In early 2007, a group of anonymous individuals attacked Ms. Sierra on her blog and two other websites, MeanKids.org and unclebobism.com.  Posters threatened rape and strangulation.  Others revealed her home address and Social Security number.  Individuals posted doctored photos of Ms. Sierra. One picture featured Ms. Sierra with a noose beside her neck.  The poster wrote: “The only thing Kathy has to offer me is that noose in her neck size.”  Another photograph depicted her screaming while being suffocated by lingerie.  Blogger Hugh MacLeod describes the posters as perpetrating a virtual group rape with the site operators “circling [the rapists], chanting ‘Go, go, go.’”  The attacks ravaged Ms. Sierra’s sense of personal security. She suspended her blog, even though the blog enhanced her reputation in the technological community.  She canceled public appearances and feared leaving her backyard.  Ms. Sierra explained: “I will never feel the same. I will never be the same.” 
Although in theory anonymous online mobs could attack anyone, in practice they overwhelmingly target members of traditionally subordinated groups, particularly women.  According to a 2006 study, individuals writing under female names received twenty-five times more sexually threatening and malicious comments than posters writing under male names.  The organization Working to Halt Online Abuse reports that, in 2006, seventy percent of the 372 individuals it helped combat cyber harassment were female.25 In half of those cases, the victims had no connection to their attackers.26 These mobs also focus on people of color, religious minorities, gays, and lesbians.27
These attacks are far from the only new challenge to civil rights in the Information Age,28 but they are a serious one. Without an effective response to both aggressive, bigoted attacks and to more passive forms of exclusion, online equality is more of a slogan than a reality.
Nonetheless, the development of a viable cyber civil rights agenda faces formidable obstacles. First, because it must fill the gap left when the Internet’s disaggregation allows individuals to escape social stigma for abusive acts, the cyber civil rights agenda must be fundamentally pro-regulatory. A regulatory approach clashes with libertarian ideology that pervades online communities.
Second, civil rights advocacy must address inequalities of power. This may seem incongruous to those who believe – with considerable justification in many spheres – the Internet has eliminated inequalities by allowing individuals’ voices to travel as far as those of major institutions. This assumption may slow recognition of the power of misogynistic, racist, or other bigoted mobs to strike under cloak of anonymity, without fear of consequences.
Third, a cyber civil rights agenda must convince a legal community still firmly rooted in the analog world that online harassment and discrimination profoundly harm victims and deserve redress. In particular, proponents of cyber civil rights must convince courts and policymakers that the archaic version of the acts-words dichotomy fails to capture harms perpetrated online. The Internet’s aggregative character turns expressions into actions and allows geographically-disparate people to combine their actions into a powerful force. Those who fail to appreciate the Internet’s aggregative powers may be inclined to dismiss many of the harms, perhaps citing “the venerable maxim de minimis non curat lex (‘the law cares not for trifles’).”29 For example, an online mob’s capacity to manipulate search engines in order to dominate what prospective employers learn about its victim, by aggregating hundreds or thousands of individual defamatory postings, may not be grasped by judges accustomed to a world in which defamers’ messages either reached a mass audience or were sent specifically to recipients known to the defamer. Much as the northern media initially dismissed the Ku Klux Klan’s violence in the early 1870s as “horseplay” borne of “personal quarrels,”30 so have many viewed the destruction wrought by online groups as harmless pranks.
Fourth, cyber civil rights advocates must overcome the free speech argument asserted by online abusers. Perpetrators of cyber civil rights abuses commonly hide behind powerful free speech norms that both online and offline communities revere. Just as the subjugation of African Americans was justified under the rubrics of states’ rights and freedom of contract, destructive online mobs invoke free speech values even as they work to suppress the speech of women and people of color.31
Fifth, a cyber civil rights agenda must be sure to highlight the harms inflicted on traditionally subjugated groups, because online civil rights abuses typically affect members of these traditionally subjugated groups disproportionately, but not universally. This makes the problem less conspicuous and easier to dismiss, much as the fact that the existence of some people of color and women working and learning in a given workplace or school may give the erroneous impression that hiring or admissions procedures do not impose disproportionate burdens on members of those groups.
Finally, applying civil rights norms to the technological advances of the Information Age requires overcoming the same challenges that law faces in coping with any sweeping social change: inevitable false starts threaten to discredit all legal intervention, giving credibility to arguments that law must ignore harms resulting from new technologies to avoid bringing progress to a grinding halt.32
This Article analyzes the problem of anonymous online mobs that target women, people of color, and other vulnerable groups and proposes a legal response. In so doing, it seeks to begin a conversation about developing a cyber civil rights agenda more generally.
This Article proceeds in four Parts. Part I describes these mobs’ behavior and their success in terrorizing victims and suppressing their targets’ speech. It also finds that the online environment offers all the same conditions that social psychology research has found to maximize the danger of destructive mob behavior.
Part II lays out the necessary components of a legal response to online mobs. First, cyber civil rights proponents should seek to align the interests of dominant online groups with those of online mobs’ victims. Second, such proponents must make an effort to translate longstanding civil rights principles from the offline to the online world.
Part III considers the relationship between cyber civil rights and cyber civil liberties. In particular, it addresses both theoretical and doctrinal concerns about limiting online mobs’ attacks, which purport to be protected speech. It shows that, although much obnoxious online activity is and should be protected, limiting online mobs’ ability to silence women, people of color, and their other targets will, in fact, enhance the most important values underlying the First Amendment.
Finally, Part IV addresses the problems posed by online mobs’ anonymity. Whatever causes of action their victims may possess do little good if they cannot find and serve their assailants. Online mobs’ ability to strike with impunity results in large part from websites’ practices of opening themselves to anonymous posters. Unfortunately, after a misguided, overzealous early case imposed unsustainable strict liability on Internet Service Providers (“ISPs”) for material accessed through their facilities, the legal debate has veered unproductively into the language of immunity. This Part instead seeks to move the debate to the development of a standard of care that preserves the benefits from the Internet’s aggregative and disaggregative functions while limiting the opportunities for online mobs and others to harness those awesome capabilities for malicious and unlawful ends.
I. ANONYMOUS MOBS OF THE TWENTY-FIRST CENTURY
The most valuable, indeed generative, opportunity the Internet provides is access.33 An individual must establish an online presence and begin to build an online reputation before aggregating ideas or economic opportunities with others online. The Internet offers no viable alternatives to connect with others if a person is forced off the Internet as compared to the offline world, which offers various means of communication even if one route is foreclosed. And it is through access to the online community that anonymous groups come together to deny women, people of color, religious minorities, lesbians, and gays access.
The civil rights implications of ISPs charging women or African Americans higher monthly fees than men or Caucasians would be obvious. A less obvious, although no less troubling, civil rights problem arises when anonymous online groups raise the price vulnerable people have to pay to maintain an online presence by forcing them to suffer a destructive combination of threats, damaging statements aimed to interfere with their employment opportunities, privacy invasions, and denial-of-service attacks because of their gender or race. These assaults force vulnerable people offline, preventing them from enjoying the economic and social opportunities that social networking sites, blogs, and other Web 2.0 platforms provide.
Section A describes these cyber assaults that imperil, economically harm, and silence traditionally disadvantaged people. Section B shows how the online environment magnifies the pathologies driving dangerous group behavior, ensuring that the abuse will not correct itself.
A. The Destructive Nature of Online Mobs
Online assaults exist along several interconnected dimensions.34 First, attacks involve threats of physical violence. Death and rape threats are legion on the Web.35 The threats may foreshadow offline stalking and physical violence.36 They often include references to victims’ home addresses and personal information, suggesting attackers’ familiarity with them, and the attackers encourage readers to physically assault the victims, putting them in fear of genuine danger.
In response, victims stop blogging and participating in online forums. 37 A Pew Internet and American Life Project study attributed a nine percent decline in women’s use of chat rooms to menacing sexual comments.38 Victims may also make their sites private or assume pseudonyms to mask their identity.39 As one victim explains, it does not take many rape threats to “make women want to lay low.”40
Second, assaults invade victims’ privacy. Attackers hack into victims’ computers and e-mail accounts to obtain personal information, such as Social Security numbers, driver’s license information, and confidential medical data.41 The stolen information is then posted online.42 Disclosing such personal information poses imminent risks, such as the threat of identity theft, employment discrimination, and online or offline stalking.43 It also inflicts harm in the longer term. Victims feel a sustained loss of personal security and regularly dismantle their online presence to avoid further devastation of their privacy.44
Third, assaults can involve statements that damage reputations and interfere with victims’ economic opportunities.45 Online comments may assert that individuals suffer from mental illnesses.46 They may claim individuals have sexually transmitted diseases.47 Attackers sometimes publish doctored photographs of victims.48 In addition, attackers send damaging statements about victims to their employers and manipulate search engines to reproduce the damaging statements and pictures for others to see,49 creating digital “scarlet letters” that destroy reputations.50
Fourth, some assaults do not involve online postings at all. Instead, attackers use technology to force victims offline. Groups coordinate denial-of-service attacks51 and “image reaping” campaigns to shut down sites and blogs.52 While the other types of assaults silence victims indirectly with fear and humiliation, this fourth type of assault muzzles them directly.
Groups commonly wield all four of these tools in their attacks against individuals. Some attacks originate online and continue offline, while others move in the opposite direction.53 For example, in 2007, the social networking site AutoAdmit hosted a pattern of attacks on female law students.54 Thirty-nine posters targeted named students on the site’s message board.55 The posters, writing under pseudonyms, generated hundreds of threatening, sexually-explicit, and allegedly defamatory comments about the victims.56
Posters threatened female law students with violence. One poster asserted that a named female student “should be raped.”57 That remark begat dozens of more threats. For instance, a poster promised: “I’ll force myself on [the identified student]” and “sodomize” her “repeatedly.”58 Another said the student “deserves to be raped so that her little fantasy world can be shattered by real life.”59
Discussion threads suggested the posters had physical access to the female students. A poster described a student’s recent attire at the law school gym.60 Posts mentioned meeting targeted women and described what they looked like and where they spent their summer.61 Posters urged site members to follow a woman to the gym, take her picture, and post it on AutoAdmit.62 Others provided updates on sightings of a particular woman.63 Another poster provided the e-mail address of a female law student under a thread entitled “Mad at [named individual]? E-mail her . . . .”64
Posters also asserted damaging statements about the women. One asserted that a female student spent time in a drug rehabilitation center.65 Another claimed the student had a lesbian affair with a law school administrator.66 Others remarked that the student appeared in Playboy.67 Posters claimed that another female student had a sexually transmitted disease.68 Others provided her purported “sub-par” LSAT score.69 The victims asserted that these were lies.70
In addition to publishing the alleged lies online, posters spread them offline to undermine the victims’ job opportunities. One poster urged the group to tell top law firms about the female student’s LSAT score “before she gets an offer.”71 Posters e-mailed their attacks to the student’s former employer, recommending that the employer show it to its clients, who would “not want to be represented by someone who is not of the highest character value.”72
Another poster sent an e-mail to a particular female law student’s faculty asserting that her father had a criminal record.73 The poster displayed the email on AutoAdmit before sending it, explaining: “I’ve assembled a spreadsheet with [faculty e-mail] addresses and every single one of them will be notified about what our darling [named student] has done. I post this here as a warning to all those who would try to regulate the more antisocial posters – we have the power now.”74
Site members applauded the e-mail and rallied around the sender. For instance, a poster stated that the e-mail sender should be awarded a “Congressional medal.”75 Others recommended sending the e-mail from a public computer and a “hushmail account,” or with anonymizing software.76
The attackers waged a “Google-bombing” campaign that would ensure the prominence of offensive threads in searches of the female students’ names.77 Posters made plain the goal of their Google-bombing campaign: “We’re not going to let that bitch have her own blog be the first result from googling her name!”78 An individual writing under the pseudonym “leaf” detailed the steps AutoAdmit posters would have to take to engage in Google-bombing.79 Leaf explained that posts should include the adjective “big-titted” next to the woman’s name.80 “Big-titted [name of female student]’s name is never to be used in parts – it must always be [name of student] at the least, and ‘big-titted [name of the student]’ ideally” with pictures of her accompanying the thread.81 This would work because search engine algorithms assign a high rank to a Web page if sites linking to that page use consistent anchor text.82
Posters admitted their desire to intimidate and harm the female students. After one of the women did not get a summer job, a poster asked if the other “bitch got what she deserved too?”83 Another said: “I’m doing cartwheels knowing this stupid Jew bitch is getting her self esteem raped.”84 A poster explained that the women were targeted “just for being women.”85
A lawsuit filed by two of the women alleged the AutoAdmit site managers refused to remove the offensive threads even though the women told them that the messages caused them severe emotional distress.86 On March 15, 2007, a site manager asserted that he would not remove the offensive threads until the female students apologized for threatening litigation and until ReputationDefender, a group assisting the women, acknowledged the mistakes the manager alleged the group had made.87
In a similar vein, a group called Anonymous has devoted itself to terrorizing and silencing hundreds of women writing on the Web.88 For instance, in 2007, Anonymous used message boards and wikis89 to plan an attack on a nineteen-year-old woman who maintained a video blog about Japanese language and video games.90 Group members hacked her online accounts, including her YouTube blog account, e-mail, Facebook profile, and MySpace page, to obtain her personal information.91 They published her account passwords and private medical history on various sites.92 Postings disclosed her full name, home address, and her mother’s e-mail address.93 Group members sent messages from the woman’s e-mail account to her loved ones.94 They claimed the woman had committed suicide on various message boards.95
Members of Anonymous posted doctored photographs of the woman including one picture that featured the woman’s head atop naked bodies.96 Next to her picture appeared the promise that group members would rape her “at full force in her vagina, mouth, and ass.”97 A drawing depicted men brutally raping the woman.98
Anonymous urged its members to “seek and destroy” the woman’s online identity.99 Group members saturated her video blog with sexually violent material.100 They took down her videos.101 Anonymous updated its members on the status of her sites.102 When her live journal or video blog reappeared, Anonymous urged members to “rape” and “nuke [her sites] from orbit.”103
Anonymous similarly attacked a journalist writing under the pseudonym “Heart” who maintained a blog and discussion forum about women’s issues.104 Group members pieced together her identity from her postings and revealed her name and home address on her discussion forum.105 They made death threats and sexually menacing comments on her blog.106 Anonymous urged members to engage in “image reaping” to shut down her site.107 The group succeeded in overloading and closing Heart’s website during the summer of 2007.108 In August 2007, Heart closed her blog and website.109
Anonymous maintains a list of sites and blogs addressing women’s issues that it claims to have forced offline.110 The list includes the names of shuttered sites with a line crossed through them and the accompanying message: “Down due to excessive bandwidth – great success!”111 When a site reappears online, Anonymous tells its members: “It’s back! Show no mercy.”112 The group takes credit for closing over 100 feminist sites and blogs.113 Anonymous has also targeted journalists, such as Anna Greer, who have reported on the group’s attacks. The group published Ms. Greer’s home and e-mail addresses with instructions to “choke a bitch.”114
Targeted female bloggers and website operators confirm the group’s claims of attacks.115 They describe the denial-of-service attacks and “image reaping” campaigns that have shut down their sites.116 A victim explained: “Being silenced for over two weeks felt infuriating, stifling, imprisoned by gang raepists [sic] just waiting for me to try to get up from underneath their weight so they could stomp me down again.”117 Victimized website operators and bloggers have asked Anonymous in vain to stop its attacks.118
Groups attack women on the website JuicyCampus with threats of violence, and their posts have generated offline stalking.119 For instance, anonymous posters disclosed a woman’s cell phone and dorm address with instructions that she was available for sex.120 After the posts appeared, strange men started knocking on the woman’s door at night.121
Online mobs have targeted African-American and Hispanic women.122 As blogger “La Chola” explains, women-of-color bloggers have consistently received horrific, vile e-mails and comments threatening violent sexual assault, death, and attacks against family members.123 After the author of the blog “Ask This Black Woman” posted commentary about the Resident Evil 5 video game, anonymous posters attacked her on her blog and other sites.124 She received death threats.125 Posters told her to “[g]et back into the cotton fields, you filthy [n****r]”126 and threatened to overrun her blog.127
Posters on a white supremacist website targeted Bonnie Jouhari, the mother of a biracial girl.128 The site posted an image of Jouhari’s workplace burning in flames with a caption that read “race traitor . . . beware, for in our day, they will be hung from the neck from the nearest tree or lamp post.”129 The site included a picture of Jouhari’s child and an image of her burning office with bomb-making instructions posted beneath it.130 Ms. Jouhari and her daughter received harassing phone calls at home and at work.131
Other people of color have faced similar attacks.132 An Asian-American columnist who writes a blog called “Yellow Peril” explained that a group of individuals attacked her online after she wrote about a hate crimes march.133 The group posted a picture of her on a white supremacist watch list, which included her phone number and address, and its members sent threatening emails to her.134 College students wrote racially threatening messages on a Hispanic student’s Facebook profile,135 promising to “come find you and drag you behind my (expletive) car.”136
Online mobs target individuals from religious minorities as well. Groups post anti-Semitic comments alongside damaging statements about specific Jewish individuals on the website JuicyCampus.137 Anonymous has targeted the Church of Scientology.138 It posted videos on YouTube announcing its intent to destroy the Church.139 Anonymous calls its campaign against the religious organization “Project Chanology.”140 Group members have engaged in denial-of-service attacks to take down the scientology.org website.141 Nine hundred Anonymous members gathered in a chat room to discuss different ways to harass the Church.142 Some suggested making harassing phone calls to the Church’s local branches.143
Online groups have attacked gays and lesbians.144 Anonymous has declared homosexuals as the group’s enemy.145 It urges members to shut down blogs and websites of targeted men and women.146 Anonymous takes credit for driving “Gay Diamond,” a lesbian, off YouTube.147 Anonymous accuses victims of having sexually transmitted diseases.148 Postings reveal targeted individuals’ home addresses, phone numbers, and other personal information.149 In August 2007, denial-of-service attacks shut down a gay gaming site and the site’s owners received death threats.150
The harm online mobs inflict is potent. The threats and privacy intrusions produce damage in numerous ways. Publishing a woman’s home address alongside the suggestion that she should be raped or is interested in sex raises the risk that readers of the post will stalk her or commit physical violence against her. Posting a person’s Social Security number increases the chance that she will be subject to identity theft. Victims fear that threats or identity theft will be realized: the Internet’s anonymity disaggregates the threats from their social context, eliminating cues that might signal the extent of peril. Online anonymity also may prevent an effective law enforcement response. A victim’s feeling that she is “being watched” also may stifle her creativity and sense of well-being.151
Victims may lose job opportunities due to damaging statements and threats posted online. Employers often review Google search results before interviewing and hiring candidates.152 The damaging statements and threats may raise doubts about the victim’s competence, or suggest the victim attracts unwanted controversy, causing the employer to hire someone else. When victims stop blogging because of threats, they lose opportunities to establish their online presence in a manner that could enhance their careers and attract clients.153
If online groups select victims for abuse based on their race, ethnicity, gender, or religion, they perpetrate invidious discrimination. Important parallels exist between the harm inflicted by prior centuries’ mobs and this century’s destructive online crowds. Much like their offline counterparts, online hate mobs deprive vulnerable individuals of their equal right to participate in economic, political, and social life. They silence victims and stifle public discourse.154 Although online mobs do not engage in lynching and physical beatings, their attacks produce serious individual and societal harm that should not be ignored.
B. The Dynamics of Mob Behavior
These destructive crowds continue a disturbing pattern from the past, when anonymous groups such as the anti-immigrant mobs of the nineteenth century and the Ku Klux Klan inflicted serious harm on their victims.155 Social scientists have identified four factors that influence the potential dangerousness of a group.156
First, groups with homogeneous views tend to become more extreme when they deliberate.157 Group members’ interactions tend to reinforce preexisting views as members offer a disproportionately large number of arguments supporting their views and only a small number of arguments tilting the other way.158 Hearing agreement from others bolsters group members’ confidence, entrenching and radicalizing their views.159
Second, a group member’s deindividuation encourages the member to act on destructive impulses.160 According to one school of thought, people in groups fail to see themselves as distinct individuals and lose a sense of personal responsibility for their destructive acts.161 Another school of thought attributes deindividuation to anonymity rather than an individual’s immersion in a group. This account explains that people behave aggressively when they believe that they cannot be observed and caught.162
Third, groups are more destructive when they dehumanize their victims.163 By viewing victims as devoid of humanity and personal identity, group members feel free to attack without regret.164 Groups rarely target those who are important to their personal well-being.165 For instance, the incidence of lynching in the South similarly tracked the degree of interdependence between victims and the violent crowd, with black newcomers more vulnerable to violence than black employees who worked for the white community.166
Lastly, group members are more aggressive if they sense that authority figures support their efforts. Social scientists emphasize a perceived leader’s role in accelerating dangerous group behavior.167 As recently as the early 1900s, Southern newspapers explicitly “legitimated mob violence” by reporting that lynch mobs included prominent members of the white community.168 As legal historian Robert Kaczorowski explains, federal authorities implicitly encouraged the Klan by failing to enforce civil rights laws.169
The Internet magnifies the dangerousness of group behavior in each of these respects. Web 2.0 platforms create a feeling of closeness among like-minded individuals.170 Online groups affirm each other’s negative views, which become more extreme and destructive.171 Individuals say and do things online they would never consider saying or doing offline because they feel anonymous, even if they write under their real names.172 Because group members often shroud themselves in pseudonyms, they have little fear that victims will retaliate against them or that they will suffer social stigma for their abusive conduct. Online groups also perceive their victims as “images” and thus feel free to do anything they want to them.173
Moreover, site operators who refuse to dismantle damaging posts reinforce, and effectively encourage, negative behavior.174 Their refusal can stem from a libertarian “You Own Your Own Words” philosophy,175 or irresponsibility bred from the belief that they enjoy broad statutory immunity from liability.176 Negative posts that remain online constitute “calls to action” that generate others in a “snowball effect.”177
II. THE COMPONENTS OF CYBER CIVIL RIGHTS STRATEGY
Because destructive online mobs are unlikely to correct themselves, a comprehensive legal response is essential to deter and redress the harm they cause.178 Much like its forebears, a cyber civil rights agenda must begin with the courts, because legislatures and executives have yet to respond to abusive online mobs in a comprehensive manner.179 Professor Derrick Bell has counseled that civil rights progress is most likely to occur when the interests of vulnerable people can be aligned with those of the dominant group.180 Section A heeds that advice, demonstrating that society as a whole suffers much due to online attacks and proposing remedies under criminal statutes and general tort doctrines.
On the other hand, online attacks are fundamentally civil rights violations and, in many respects, mirror activities that prompted enactment of prior centuries’ civil rights laws. Accordingly, Section B shows how civil rights laws fill critical gaps left by traditional tort and criminal law in combating the individual and societal harm that online mobs inflict.
A. Converging the Interests of the Majority with Those of Subjugated Groups
1. Broader Societal Harm Wrought by Online Mobs
Although online mobs typically focus on women, people of color, and other traditionally subjugated groups, they harm society at large. When mobs succeed in their professed goal of driving bloggers offline, or of using online attacks to silence their victims’ offline speech, they impoverish the dialogue society depends upon for purposes great and small. The attacks on Kathy Sierra deprived society of an apparently talented and enthusiastic blogger on software design.181
The proliferation of sexual threats and violent sexual imagery on websites not otherwise devoted to such material increases the likelihood that children and unwilling adults will encounter it. As such material becomes increasingly difficult to avoid, increasing numbers of parents will restrict or deny their children’s Web access and other adults will turn away from the Internet in disgust. Moreover, when online mobs post Social Security numbers and other information to facilitate identity theft, they increase the receipts of identity theft rings and spread costs throughout the financial sector. Their dissemination of disinformation about potential employees in a manner that as a practical matter is impossible to refute distorts the employment market.182
On a more granular level, support for this proposal will extend beyond those interested in protecting individuals from traditionally disadvantaged groups because the traditional criminal and tort law doctrines featured here can be invoked by individuals from dominant groups who have been attacked online. Examples of such online harassment abound. For instance, in the summer of 2008, a man sought to ruin the reputation of an investment banker, Steven Rattner, who allegedly had an affair with the man’s wife.183 On six websites, the man accused Mr. Rattner of trying to “steal” the man’s wife with exotic trips and expensive gifts.184 He included these accusations in e-mails to Mr. Rattner’s colleagues, clients, and reporters.185 Although Mr. Rattner admits having the affair, he says the man’s other claims are “either untrue or a gross exaggeration.”186 The online accusations spread like a virus, forcing Mr. Rattner to resign from his job.187 This example shows that because online attacks harm not only vulnerable individuals like women and minorities, but also individuals from dominant groups like Mr. Rattner, one can expect widespread support for the application of general tort and criminal law remedies for online assaults.
2. Traditional Tort and Criminal Laws That Should Be Invoked to Combat Cyber Harassment
Traditional criminal prosecutions and tort suits should be pursued to deter and remedy an online mob’s assaults.188 Prosecutors can pursue online mobs for computer-related crimes,189 such as hacking into a victim’s computers and password-protected accounts190 or disseminating denial-of-service and “image reaping” attacks to shut down blogs and websites.191 They can also prosecute cyber mobs under 18 U.S.C. § 875(c) for online threats of rape, strangulation, and other physical harm if victims could have reasonably believed that those threatening them expressed a serious intent to inflict bodily harm.192 Further, prosecutors could charge an individual with the intent to aid and abet identity theft for the posting of Social Security numbers.193 In addition to criminal prosecutions, victims can bring civil causes of action based on any of the computer-related crimes discussed above.194
Targeted individuals could also pursue general tort claims, such as defamation.195 False statements and distorted pictures that disgrace plaintiffs or injure their careers constitute defamation per se, for which special damages need not be proven.196 Numerous statements and pictures described in Part I, if indeed false, provide grounds for defamation claims as they degrade societal perceptions of the targeted individuals.197
Victims could sue for public disclosure of private facts. The public-disclosure-of-private-facts tort involves the publicity of private, nonnewsworthy information, disclosure of which would be “highly offensive to a reasonable person.”198 The tort’s applicability seems clear for an online mob’s publication of a plaintiff’s Social Security number; such a release would offend the reasonable person given the concomitant risk of identity theft.199
Many victims may have actions for intentional infliction of emotional distress. That tort responds to “extreme and outrageous conduct” by a defendant who intended to cause, or recklessly caused, the plaintiff’s severe emotional distress.200 Courts are more willing to consider conduct “outrageous” if the defendant exploited an existing power disparity between the parties or knowingly took advantage of a vulnerable plaintiff.201 Various types of online harassment have supported emotional distress claims, including threats of violence, the publication of a victim’s sensitive information, and disparaging racial remarks.202 Victims can certainly argue that many of the assaults featured in Part I constitute “extreme and outrageous” conduct and caused severe emotional distress, as nearly all of them involved gruesome threats of physical violence and other forms of harassment.203
Some victims may also bring actions for intrusion on seclusion. This tort protects against intentional intrusions into a person’s “private affairs or concerns” if the intrusions would be “highly offensive to a reasonable person.”204 Courts have upheld intrusion claims for deliberate interruptions of a person’s online activities.205 Online mobs could face intrusion claims for hacking into password protected e-mail accounts containing private correspondence and conducting denial-of-service attacks to shut down personal blogs and websites.206
B. A Crucial Deterrent and Remedy for Cyber Harassment of Vulnerable Individuals: Civil Rights Law
A meaningful response to abusive online mobs would include the enforcement of existing civil rights laws for several reasons. First, civil rights laws recognize the serious injuries that online mobs inflict on victims, their communities, and society as whole.207 Cyber attacks marginalize individuals belonging to traditionally subordinated groups, causing them deep psychological harm.208 Victims feel helpless to avoid future attacks because they are unable to change the characteristic that made them victims.209 They experience feelings of inferiority, shame, and a “profound sense of isolation.”210 The attacks perpetrate economic intimidation and suppress civic engagement, depriving vulnerable individuals of their equal right to participate in social, economic, and political life.211
Bias-motivated conduct also provokes retaliation and incites community unrest.212 Such attacks also harm the community that shares the victim’s race, gender, religion, or ethnicity – community members experience attacks as if the attacks happened to them.213 Moreover, society suffers when victims and community members isolate themselves to avoid future attacks and when cyber mobs violate our shared values of equality and pluralism.214 Traditional tort and criminal law fail to respond to such systemic harm and, indeed, may obscure a full view of the damage.
Second, a civil rights approach would play a valuable normative and expressive role in society.215 Civil rights prosecutions would communicate society’s commitment to “values of equality of treatment and opportunity” and make clear that conduct transgressing those values will not be tolerated.216 They also would be a powerful stigmatizing tool217 because the fear of censure might inhibit abusive behavior.218
Third, viewing the assaults as civil rights violations might provide an incentive for prosecutors to pursue criminal charges. To date, law enforcement’s response to online criminal activities has evolved slowly.219 Computer crimes are difficult to prosecute given law enforcement’s relative unfamiliarity with technology.220 Prosecutors might devote more resources to untangling a case’s difficult technological issues if they recognized its civil rights implications.
Fourth, civil rights laws have attractive remedial features. Because damages may be hard to prove and quantify, and because many plaintiffs cannot afford to litigate based on principle alone, the high cost of litigation often deters the filing of general tort suits.221 The awards of attorney’s fees possible under many civil rights statutes might make some cases affordable to pursue.
Fifth, civil rights suits may reach wrongs that would otherwise escape liability. These include victims’ rights to be free from economic intimidation and cyber harassment based on race and gender.
Finally, civil rights law has adapted over the years to many of the conditions that exacerbate the extreme behavior of online mobs.222 It has had to respond to hateful mobs emboldened by anonymity. It also has confronted the objectification of subordinated people, a process the Internet fosters by disaggregating people into screen presences that mob members can attack as if playing a computer game.
1. Common Civil Rights Doctrines
Online assaults motivated by race discrimination that interfere with an individual’s ability to make a living can support civil and criminal actions.223 Title 42 U.S.C. § 1981 guarantees members of racial minorities “the same right in every State . . . to make and enforce contracts . . . as is enjoyed by white citizens . . . .”224 A plaintiff must show that the defendant intended to discriminate on the basis of race and that the discrimination concerned the “making and enforcing” of contracts.225 Courts have upheld § 1981 damages in cases where masked mob members used tactics of intimidation to prevent members of racial minorities from “making a living” in their chosen field.226 Section 1981 remedies “purely private” acts of racial discrimination and thus does not require state action.227
Similarly, 18 U.S.C. § 245(b)(2)(C), a provision of the Civil Rights Act of 1968, criminalizes “force or threat[s] of force” designed to intimidate or interfere with a person’s private employment due to that person’s race, religion, or national origin.228 Congress enacted § 245 to rid interstate commerce of the burdens imposed by denying persons equal employment opportunities and other federally protected activities through threats of violence.229 Courts have upheld § 245 prosecutions where defendants threatened violence over employees’ e-mail and voicemail.230
Gender discrimination that interferes with a person’s ability to make a living can be pursued under Title VII of the Civil Rights Act of 1964, which sanctions those who intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce someone with the purpose of interfering with employment opportunities due to their gender.231 The Attorney General can file civil suits for injunctive relief.232 Such actions can be asserted against private actors because Congress enacted Title VII of the Civil Rights Act of 1964 pursuant to a valid exercise of its power to regulate interstate commerce.233 Courts have upheld Title VII violations where masked defendants engaged in “economic coercion” and intimidation to prevent vulnerable individuals from employment.234
Destructive online crowds intimidate women and members of racial and religious minorities, preventing them from “making a living” due to discriminatory animus. Because the Internet fuses our public and private lives and is a workplace for many, online attacks on vulnerable individuals often interfere with their equal right to pursue work. For instance, women who stop blogging in the face of an online mob’s attack lose advertising revenue and opportunities for advancement.235 According to technology blogger Robert Scoble, women who lack a robust online presence are “never going to be included in the [technology] industry.”236 Online mobs also conduct denial-of-service attacks to shut down blogs that generate income for women and racial minorities. They spread damaging statements to employers and professors for whom victims may work in order to interfere with their employment opportunities.
Online mob attacks also implicate state laws penalizing those who harass or stalk another by communicating words, images, or language through electronic mail or the Internet, directed to a specific person, which would cause a reasonable person substantial emotional distress or fear of bodily harm.237 Some states explicitly criminalize posting messages with the intent to urge or incite others to harass a particular individual.238 For instance, California authorities obtained a guilty plea from a defendant who terrorized a victim by impersonating her in chat rooms and online bulletin boards, where the defendant posted the victim’s home address and messages suggesting the victim fantasized about being raped.239
2. Civil Rights Doctrines Focusing on Anonymous Attackers
Civil rights law has long recognized the dangers that anonymous mobs pose. Title 42 U.S.C. § 1985(3) allows damage suits against:
[T]wo or more persons in any State or Territory [who] conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws . . . .240
To similar effect, 18 U.S.C. § 241 establishes criminal penalties for “two or more persons [who] go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege” that is “secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.”241
Online mobs go in disguise on the Internet for the admitted purpose of suppressing the free speech of victims expressly targeted because they are women, people of color, members of religious minorities, or gays or lesbians. Sections 1985 and 241 similarly proscribe conspiracies to deprive others of civil rights.242 Section 1986 then establishes a cause of action against any person, “having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 . . . are about to be committed,” who could have helped prevent those acts from being committed but who fails to do so.243
Efforts to apply these statutes to anonymous online mobs nonetheless face formidable obstacles. During Reconstruction, United States v. Cruikshank interpreted the language of the Enforcement Act, which included much of the language later incorporated into § 1985(3), as not reaching purely private conspiracies, and suggested Congress lacked the authority to go farther.244 Almost one hundred years later, the Court found that Congress could reach some purely private conspiracies through its powers to implement the Thirteenth Amendment and to protect the right to interstate travel.245 More recently, however, the Court narrowed the statute’s reach, finding it only covers private conspiracies “‘aimed at interfering with rights’ that are ‘protected against private, as well as official, encroachment.’”246 The Court held that freedom of speech is not such a right.247
The Court noted that the Commerce Clause “no doubt” allowed Congress to proscribe private efforts to prevent the exercise of speech or rights secured only against state interference, but held “§ 1985(3) is not such a provision” because of its references to “rights, privileges, and immunities” under the laws.248 Whatever one may think of this interpretation, Congress has since enacted such a law. The Violence Against Women Act (“VAWA”) penalizes anyone who “utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with the intent to annoy, abuse, threaten or harass any person at the called number or who receives communications” with fines or imprisonment.249 A telecommunications device is defined to include “any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet.”250 The provision applies to individuals who anonymously and intentionally harass or threaten another over the Internet.251 Given prosecutors’ reluctance to date to invoke VAWA,252 Congress would do well to enact a parallel civil remedy to accompany it, much as § 1985(3) and § 1986 supplement § 241.