Utah Legislators Want To Outlaw Posting Of People's Pictures And Names With The 'Intent To Harass'

from the if-intent-is-in-the-eye-of-the-beholder dept

Like many bad laws, I'm sure this bill lying on the Utah governor's desk has its heart in the right place. But, like many bad laws, its head is completely up its ass. Eugene Volokh reports there's Yet Another Cyberbullying Bill on the threshold of passage. Like many that have come before it, it's full of constitutional issues and easily-abusable language.

Here’s Utah SB118, which passed both houses of the legislature unanimously and is awaiting the governor’s signature:

A person is guilty of electronic communication harassment and subject to prosecution in the jurisdiction where the communication originated or was received if with intent to intimidate, abuse, threaten, harass, frighten, or disrupt the electronic communications of another, the person: …

(e) electronically publishes, posts, or otherwise discloses personal identifying information of another person, in a public online site or forum, without that person’s permission.

This sounds like it's meant to deter doxing. But that's only if you don't read the section detailing "personal identifying information," which includes such innocuous items as "names" or "photos." In between everything else no one should be posting online without that person's permission (Social Security number, driver's license number, "electronic identification number," etc.) are bits of "personal information" that could criminalize a great number of social media posts.

So if someone posts something in Utah that is intended to insult a politician or engages in “excessive and unfounded criticism, humiliation, and denigration” of the politician, that would be a crime — it would be “electronically … post[ing]” “personal identifying information” (the target’s name) without his permission and with the intent to “abuse” (or perhaps “harass,” especially if one does it several times). After all, “personal identifying information” may include a person’s name.

Likewise if someone sharply condemns some government official, indicating the place where the official works (e.g., “Judge X in Courthouse Y is biased and incompetent”). Likewise if someone illustrates an article harshly critical of some official, businessperson, celebrity or anyone else with the person’s photograph.

To their credit, legislators at least trimmed back a bit of the broad language before passage, keeping it from criminalizing posts that merely "annoyed" or "offended" complainants. But what's left in it still carries huge potential for abuse. And it will be abused if allowed to pass. It won't protect the hundreds of people who've been targeted, harassed, and doxed, but it will give the powerful yet another tool to deploy to shut down critics. It won't be normal citizens availing themselves of this law first. It will be politicians, government officials, law enforcement officers -- basically anyone with more power than skin thickness.

Hopefully, it will be vetoed. But it received support from both sides of Utah's legislature, and Utah's government has been known to humor laughable/harmful legislation with alarming frequency. Should it receive the governor's signature, it will swiftly find itself on the receiving end of a temporary restraining order while the state's court determines its constitutionality. As written, it's unlikely to survive this scrutiny.

Filed Under: cyberbullying, free speech, harassment, utah

Do You Have Examples Of Constructive Responses To Hateful/Abusive/Trollish Speech Online?

from the please-share dept

Do you have examples of communities or individuals coming up with unique, creative or innovative ways to respond to hateful, abusive or trollish speech? Please let us know in the comments as we're trying to help an important research project on this -- including getting people past the kneejerk reactions to seeing speech they dislike by assuming that the only thing one can do it about it is ban it. I'll explain more below -- but if you have good examples, please share them -- preferably with links so that they can be investigated further.

This is a project that we're trying to help out with, put together by Susan Benesch from American University and the Berkman Klein Center at Harvard. Over the last year or so, I've been fortunate to get to spend some time talking to Susan. Coming from a human rights background, she's done some amazing work on free speech, and on how speech can lead to violence or other dangers. She's also behind the related Dangerous Speech Project, which has looked at examples of the kind of inflammatory and violent rhetoric that often precedes mass violent outbursts to find patterns. I know that, among many free speech advocates (like ourselves), hearing some of that may raise the hairs on our necks, fearing that what comes after that is a demand to shut down that kind of speech. Yet, Susan has focused not just on understanding what kind of speech precedes violence, but also on what works in counteracting that -- and she argues (and we agree!) that censorship rarely does.

But... many people who are first encountering either such trollish/abusive behavior and/or seeing the aftermath of actual violence often jump to the conclusion that banning such speech is the only or best solution. Partly this is an emotional response. And partly it's a response due to the simple fact that, in the spur of the moment it's both difficult to think of alternatives and it's difficult to envision the unintended (potentially negative) consequences of silencing such speech. Also, it should be admitted, that blocking such speech is often "easier" than alternative solutions, even if it rarely works and is open to abuse of its own.

So we're now trying to work with Susan to help explore various alternatives and to categorize what they are, what's good about them (and what's bad!) and just lay out the wider spectrum of possibilities. And, while Susan's work has gone way beyond just speech on the internet, the internet is fertile ground for this kind of research. But (and this is where you come in), it's not easy to track down these examples -- especially when the responses are organic or community driven, where they may only be known about in smaller circles. That is, at this stage, we're not necessarily looking for what, say, internet platforms do, but how users of internet platforms respond themselves.

I'll give a few examples of what we're talking about. First is one that we discussed nearly a year ago, in which an ISIS-associated Twitter account an account that would translate ISIS statements posted on that "called on" Muslims to "join the fight," and a bunch of Muslim Twitter users responded by making jokey excuses about why they were too busy to do so [Update: in our initial post we incorrectly suggested that the original tweets themselves were from an ISIS-associated account, rather than an anti-ISIS activist who was translating the content for others to read -- and that some of the responses were from people who knew that. This still works as an example of a type of response, but of a somewhat different nature. We aplogize for the error.] Another example is an interesting project in Germany called "Donate the Hate," in which a group of internet users are giving donations to various charities in response to racist or xenophobic comments that they find online, leaving a note that a donation was made to a certain group in their name. There are lots and lots of other examples -- not all of them necessarily good, but they're examples of the way individuals and groups are dealing with these things. And we'd love to see more examples that you may be aware of. A few more examples to keep you thinking: Professors at Colgate jumped onto Yik Yak a few years ago to counter a bunch of racist speech with happy, positive speech. There are examples of people actually befriending trolls -- such as the famed academic Mary Beard who even wrote a job reference for a troll -- but also naming and shaming some of the trolls sending abusive content her way and publicly exposing them. This reminds me of another story in which somoene would take rape threats she received and would track down the troll's mother and send them to her.

Again, whether you approve of any of these individual methods or not, there's a wide range of ways in which individuals and groups have come up with unique ideas for responding to speech they (at the very least) find uncivil or (at the very worst) threatening or frightening. And we'd love to know more examples -- big or small -- that people have come across, so that we can look at as many examples as possible to try to sort through them, categorize and analyze them, and see if we might all learn something useful about them. So please, add any examples you might have in the comments.

Filed Under: abusive speech, counterspeech, dangerous speech, free speech, harassment, research, susan benesch

Italy Proposes Law To Make Mocking People Online Illegal

from the what-a-stupid-fucking-law dept

Every so often, we see (probably) well-intentioned, but incredibly stupid, attempts to "fight" online harassment and bullying through laws that make saying things that are "offensive" against the law. In the US, such laws (if they actually get passed) are usually thrown out once someone makes a First Amendment challenge over them, but elsewhere in the world there's no First Amendment to fall back on. Over in Italy, some officials have proposed what may be one of the dumbest such laws in history, written so broadly that it will outlaw a lot more than the kind of "cyberbullying" it's supposedly intended to combat:

Under the proposed law, the "site manager" of Italian media, including bloggers, newspapers and social networks would be obliged to censor "mockery" based on "the personal and social condition" of the victim -- that is, anything the recipient felt was personally insulting. The penalty for failing to take action is a fine of €100,000. Truthfulness is not a defense in suits under this law -- the standard is personal insult, not falsehood.

Yes, mockery on the internet could get you a €100,000 fine. Mockery. The internet. The internet is made for mockery. And now is the time that everyone should be mocking this idiotic law -- and the politicians who proposed it without having the slightest idea of how such a thing would be abused all the time. As Cory Doctorow at BoingBoing notes:

... what it will do is create a tool for easy censorship without due process or penalty for misuse. The standard proposed in the bill is merely that the person on the receiving end of the argument feel aggrieved. Think of the abuse of copyright takedowns: online hosts already receive millions of these, more than they could possibly evaluate, and so we have a robo-takedown regime that lets the rich and powerful routinely remove material that puts them in an unflattering light.

As bad as that is, at least it makes censorship contingent on something specific and objective: copyright infringement, which has a wealth of caselaw defining its contours. Indeed, so much that you need to be a trained expert to adjudicate a claim of infringement. But at least you can objectively assess whether a copyright infringement has taken place.

The standard set by the proposed Italian law allows for purely subjective claims to be made, and for enormous penalties to be imposed on those who question them before undertaking sweeping acts of censorship.

There are some efforts under way to "improve" the law by making it not quite so draconian, but maybe, just maybe, the "improvement" should be to recognize that you're never going to successfully outlaw mockery on the internet.

Filed Under: censorship, free speech, harassment, internet, italy, mocking, offensive, takedowns

A Possible Solution To Twitter's Difficult Problem Of Abusive Behavior: Let People Speak, Don't Force Everyone To Listen

from the provide-tools dept

BuzzFeed had a long and interesting article earlier this week noting Twitter's ongoing difficulty in figuring out an appropriate way to deal with harassment and abuse that is often heaped upon certain users -- especially women and minorities. The article is interesting -- even as Twitter disputes some of its claims. It's also noteworthy that this debate is not even remotely new. Last year, I wrote about it, suggesting that one possible solution is to switch Twitter from being a platform into being a protocol -- on which anyone could then build services. In that world, Twitter could then offer various filters if it wanted -- while other providers could compete with different filters or services. Then the tweets could flow without Twitter having to take responsibility, but there would be options (possibly many options) for those who were dealing with abuse or harassment.

Not surprisingly, that kind of suggestion is unlikely to ever be adopted, but reading through the BuzzFeed article, something else struck me. To some extent, the article seemed a bit unfair in portraying some of Twitter's execs as willfully clueless about the abuse and harassment. It repeatedly portrays those who support freedom of expression as somehow being unreasonable extremists. Here's one example:

Weeks later, when a rash of beheading videos appeared, Costolo gave similar takedown orders, causing Twitter’s free speech advocates, Gabriel Stricker and Vijaya Gadde, to call an emergency policy meeting.

Inside the meeting, attended by Costolo, Stricker, Gadde, and product head Kevin Weil (now Instagram’s product lead) and first reported by BuzzFeed News, tensions rose as Costolo’s desire to build a more palatable network that was marketable and ultimately attractive to new users clashed with Stricker and Gadde’s desire for radically free expression.

“You really think we should have videos of people being murdered?” someone who attended the meeting recalls Costolo arguing, while Stricker reportedly compared Costolo’s takedown of undesirable content to deleting the Zapruder film after objections from the Kennedy family. Ultimately, the meeting ended with the group deciding to carve out policy exceptions to keep up grisly content for newsworthiness, according to one person present. Though Stricker and Gadde won, one source described a frustrated Costolo leaving in disagreement. “I think if you guys have your way the only people using Twitter will be ISIS and the ACLU,” Costolo said, according to this person.

But I think part of the issue is that people are confusing the nature of free speech, a la the famed xkcd on the issue: However, rather than the way most people take this xkcd to mean that it's right for sites to kick off people, I'd argue that it's something that Twitter itself should be thinking about. To date, much of its plans to deal with abuse seem to be focused on kicking people off the site who abuse the site's terms of service. This has created a few flare ups here and there of people who feel this is improper or unfair -- and that the process is arbitrary. But some of that may stem from the fact that people at Twitter are just as confused about the point of the xkcd above as many of its users are.

That is, I think the "free speech wing" of Twitter is absolutely correct that the site should bend over backwards to support the right and ability of people to say pretty much whatever they want to say. But what they don't need to do is force others to listen. That is Twitter should be focused, heavily, on building much, much, much, much more flexible and robust tools for users to curate their own experience. If they want to let in everything, they should be able to do so. If they want to want to block certain types of users, they should be able to do so. If they want to block based on keywords, they should be able to do so.

To date, Twitter has mostly offered fairly crude and mostly ineffective tools for users who are trying to deal with harassment. There is the ability to report abuse, but that leads to all sorts of problems and arbitrary decisions about who is violating the terms of service and who is not. The other two tools are the ability to "block" certain users and to "mute" others. There's a subtle difference here: if you block someone, they can discover that (and that leads to its own set of problems). If you "mute" them, they can still read your tweets, you just won't see theirs. People have created "blocklists," but again, these tend to be pretty crude and ineffective.

Giving end users not just a full suite of tools to figure out how they get to curate their own experience -- combined with the ability to share the "recipes" one creates -- could actually be super powerful. So, for example, say I don't want to view tweets from users who have had accounts for less than 6 months (a lot of abuse comes from new users) or who haven't actually uploaded an account profile image (so called "eggs"). Let me create that as an option -- and then share that "filter" or "recipe" for others to use. So, someone could create a filter/recipe that only shows notifications from users who have more than 1,000 followers and who have tweeted at least twice per week over the last year. Or, maybe a filter that automatically blocks anyone a particular politician has retweeted. The possibilities go on and on.

To some extent, this opens something of an opportunity to go back to the way that Twitter felt in the early days. Somewhat hilariously (in retrospect), in the early days, some claimed that one of the reasons why Twitter was so awesome was that there was "no spam or trolls" because you self-selected everyone you followed. It was a pure curation system. But that was only really true of the earliest incarnation of Twitter, before it incorporated replies, notifications and retweets. With those three things, your own curation skills only accounted for part of what you could be exposed to on Twitter. There became lots of ways for third parties to insert themselves into the conversation. And, to some extent, this is actually really great. I've met some fantastic people and learned a lot thanks to Twitter's ability to connect people. But it also opened the door to trolls and harassment and Twitter's just had so much difficulty figuring out what to do about it.

I get that there are two very large (and almost diametrically opposed) camps of people on Twitter who think that Twitter should either do nothing (Camp 1) ... or that they should be kicking a lot more people off the service (Camp 2). I think neither of those camps is being reasonable. For the first camp, ignoring the fact that harassment and spam and other stuff happens is silly. If you have a 100% open system, it gets abused, period. It's a mess. But camp 2 underestimates the subjective nature of what "harassment" is and the importance of being able to make use of a platform like Twitter. In other contexts, we've seen how arbitrary policies have resulted in questionable removals from sites, and that creates some serious problems.

Recognizing that Twitter is unlikely to ever move to my original solution, of offering a protocol rather than a platform, it seems that giving the power to each user to better curate and filter their own experience seems like a much more workable idea. In fact, it could help bring about the early Twitter experience, when users really did curate their entire experience. And, contrary to the concerns some supposedly expressed and which were repeated in the BuzzFeed article, it would seem to create a situation that might increase user adoption of the platform, rather than decrease it.

Filed Under: abuse, blocklists, filters, harassment, moderation, platforms, protocols
Companies: twitter

State Supreme Court Says 'Smashmouth Journo' Teri Buhl Must Go To Jail For Posting Teen's Journal Pages

from the bad-laws-make-for-bad-decisions dept

Journalist Terri Buhl -- who gained a bit of Techdirt infamy by claiming her public tweets couldn't be republished (which led to wild claims of copyright infringement and defamation) -- is still dealing with some legal woes of her own, stemming from the posting of someone else's actually private information to Facebook.

Teri Buhl, who was found guilty on misdemeanor charges of harassment and breach of peace, was sentenced to 30 days in jail, one-year probation and a strict order not to interact with the victims' family, in Norwalk Superior Court today.

The New Canaan woman was accused of harassing her then-boyfriend's daughter by posting parts of the girl's private journals online in 2010. Buhl, 40, was acquitted of interfering with a police investigation.

Buhl appealed this decision, but has been denied by the Connecticut Supreme Court. In overturning [PDF] the district court's findings, the Supreme Court reaches some (not all that great) conclusions about social media platforms.

Buhl had posted these private journal entries to a publicly-accessible Facebook page under the pseudonym of "Tasha Moore." (According to prosecutors. This name isn't referenced anywhere in the court decision.) While posts to this page were accessible by anyone, the posting itself would have only normally have been seen by "friends" of the account. There's a lot of convolution to be sorted through, based on some severe disparities between the complainant's version of the events (which itself is somewhat contradictory) and Buhl's version, which begins with an entirely unrelated account. (Her version is here. She makes no mention of the "Tasha Moore" alias and -- I wish I were making this up -- compares her misdemeanor jailing to "an episode of Making a Murderer.")

What seems to be (relatively) clear is that the post originally reached only eight people, most likely because they were tagged. The teen whose journal pages were posted to Facebook originally could only reach it through a friend's Facebook account. Then she said she could reach it through her own.

Either way, the Supreme Court's finding is that the pages were published publicly, even though the number of people who had access to the posted pages was, at first, extremely limited. Here's Venkat Balasubramani's take on this part of the ruling:

The court never reconciles the court of appeals’ definition of public (generally available) with the fact that the material here was posted to a page that 8 people were invited to. And the court’s discussion of the Facebook privacy settings and the victim’s testimony were equivocal at best. The victim testified that she had to view the page in question “through her friend’s” Facebook account, but once there, she could “could see everything through [hers]”. Say What!? The existence of how-to materials instructing users on the use of Facebook’s privacy settings is a testament to the average consumer’s challenges in understanding them. Given the difficulty courts and litigants have had with Facebook’s privacy settings, it was surprising to see the court conclude that the accessibility of the page was a matter of sufficient common knowledge and experience that anyone could testify about it. At a minimum, the court could have said that the state failed to carry its burden on this element of the offense.

The larger problem with the decision is that it relies on another badly-written law put into place to deal with harassment.

Apart from finding that the state sufficiently proved the defendant posted the material in question, the court also finds the remaining elements of the offense met. Specifically, the court says there was sufficient evidence that the defendant posted material about the putative victim with the intent to inconvenience, annoy, or alarm the victim. The court looks to the posts and the surrounding context to find that the posts could easily have “vexed” or “provoked” the victim.

"Inconvenience" and "annoyance" are supremely low bars, ones that could be met by every single advertiser on the planet. So, it's unsurprising that a post sent to eight people -- in which the complainant was never specifically targeted -- could meet the stipulations of the statute.

The court also finds the delivery method used to put the journal pages in the hands of the parent whose daughter wrote them was harassing in and of itself.

In the present case, the trial court reasonably could have found that the circumstances surrounding the mailing, the contents of the mailing, and the defendant’s behavior thereafter demonstrate beyond a reasonable doubt her intent to harass, annoy, or alarm P or M through the mailing. The defendant could have brought the diary entries to P, her boyfriend of more than two years, directly, but she instead, as she admitted, sent them anonymously. The anonymous nature of the mailing served to increase P’s and M’s anxieties because they did not know who had intruded into M’s bedroom and copied her diary entries, how the mailer had obtained the entries, or who else might have access to them. P, in fact, testified that he felt ‘‘violated’’ that M’s diary entries were in ‘‘someone else’s hands.'"

Buhl's lawyer does make a good point about the decision, in a statement given to Eric Goldman and Venkat Balasubramani.

We must catch up with the technology when it comes to our consideration of analogs. We have to begin not by abandoning well know and traditional definitions of legal and logical concepts but by attempting to marry them consistently with their functional equivalents in cyberspace. Today I am not so sure that my Facebook status or the the idea of a Facebook invitation is so clearly analogous to real world instantiations of the same that my inferences upon them can be treated identically. For me, I still believe that if I specifically invite 6 people to my private yard party by written invitation noting the same, and an uninvited guest walks through an open gate to my yard, my private party doesn’t morph into a public affair. This conclusion is an intuitive one for most; we need to ensure that reliance upon legal analysis of social media platform evidence comes with the same intuitive flair.

So, there's that. On the other hand, the use of social media platforms -- if one isn't careful to lock down privacy settings -- is prone to allowing anyone to view posts never intended to be seen by them. That's the nature of the sharing beast. You might throw a private party in your backyard, but if your fence is too low, anyone can watch the proceedings and even interject their own comments on your choice of entertainment, food, etc. (to carry through with the metaphor).

Buhl still maintains her innocence. She claims she never made the postings under the "Tasha Moore" name. She also claims the only reason she's being nailed for this is because she hasn't divulged the actual source of the journal pages and Facebook post. Buhl claims she's protecting a source and that this lack of disclosure should be covered under the First Amendment. The court never addresses these arguments, however. It instead notes the lower court may not have addressed this issue sufficiently, but refuses to entertain the argument itself.

There's also an apparent lack of intent to annoy or harass. The journal page posts were never directed at the teen who had written them. Her discovery of it was secondhand. That's not to say posting of teens' private journals is a good thing -- especially when the poster has chosen to divulge personal info (full name, school attended) rather than redact it before publication.

So, while this site's experience with Teri Buhl is largely based on stupid legal threats, there's really no reason to celebrate this decision. There's some very flawed logic on display and it's made worse by a law that makes it a criminal act to "annoy" someone. The evidence tying Buhl to the postings appears to be mostly circumstantial and the court's finding makes some bad assumptions about how "public" should be defined in the age of social media.

Filed Under: connecticut, diary, free speech, harassment, journalism, public place, social media, teri buhl

Illinois Court Says State's Cyberstalking Law Is Unconstitutional

from the also,-its-analogstalking-law dept

One of several problems with hastily-enacted laws meant to deal with advances in technology is that they often skip a step or several when being written. In many cases, the step skipped is an important one: the consideration of intent. By crafting laws that cater to subjective views of a situation -- whether it's meant to address cyberbullying or other forms of online harassment -- the laws blow past, sometimes intentionally, the requirement that there be malicious intent behind the targeted actions.

This has led to courts striking down newly-enacted laws as unconstitutional because they have skipped this step. Without this requirement in place, the laws curb free speech by enacting new limits on First Amendment expression based almost solely on subjective reading of the allegedly "criminal" content.

The Illinois Appeals Court is the latest to find a cyberstalking/harassment law invalid. The problem here is, again, the lack of a mens rea requirement. (h/t Orin Kerr)

The stalking case that triggered this review [PDF] deals with a former intern at a Christian radio station who apparently couldn't take "no" for an answer, or just genuinely had no idea how to obtain a definitive answer on his current job status. It all depends on who you ask. But as the law was written, the only person who needed to be asked was the complainant.

Defendant was charged by indictment with two counts of stalking and two counts of cyberstalking. In particular, the indictments collectively alleged that defendant: (1) called Sonya Blakey on the telephone; (2) sent her emails; (3) stood outside of her place of business; (4) entered her place of business; and (5) made multiple posts on his Facebook page threatening Blakey’s coworkers and expressing his desire to engage in sexual acts with Blakey. The indictments further alleged that defendant “knew or should have known” that his conduct “would cause a reasonable person to suffer emotional distress” and “fear for her safety.”

The indictment makes the defendant [Walter Relerford] sound more than a bit dangerous. The actual events that triggered this prosecution, however, are not nearly as evil-sounding. Blakey testified that multiple emails were sent not just to her, but other employees at the station -- all of them inquiring about the possibility of working there again after being turned down for an open intern position. She also testified that the incident in which the defendant "stood outside her place of business" involved nothing more than him waving up at her from ground level -- at a complex where multiple businesses, including several restaurants, were located.

The defendant's unexpected visit to the business was just that. Blakey may have subjectively experienced shock or fear, but the defendant left peaceably when escorted from the building and made no movements or statements suggesting he posed any threat to Blakey.

The Facebook posts made by the defendant were a bit more disturbing, containing thinly-veiled threats related to Blakey and the station's refusal to give him a job. There were also comments of a sexual nature made. Also included were other things entirely unrelated to anything -- like a group of "Chinese people" talking about "killing everyone at the station" and the insistence that "the entire Michigan State football team from 1993" be immediately "buried" if he did not have "Sonya [Blakey's] vagina in his mouth" by the end of the week.

These posts were definitely more disturbing than anything Relerford had done prior. But they weren't tagged with Sonya Blakey's name (making them visible to her) and no attempt was made by Relerford to ensure Blakey saw them. Instead, a friend of Blakey's saw the posts and emailed them to her.

Blakey admitted during testimony that Relerford had never once threatened her directly. Instead, everything was based on how she felt about the interactions. And the way the law is crafted allows a single subjective viewpoint to steer prosecution… which is exactly what the court finds unconstitutional about the law.

The laws (both the regular stalking and cyberstalking version) had survived challenges before. But under the Supreme Court's Elonis decision, they no longer withstand Constitutional scrutiny.

As noted above, defendant was sentenced for violating subsection (a)(2) of the general stalking statute. That section criminalizes a wide range of conduct, including communicating to or about a person. But, like the statute at issue in Elonis, “communicating something is not what makes *** conduct ‘wrongful’ ” under subsection (a)(2). (Emphasis in original.) Id. at ___, 135 S. Ct. at 2011. Instead, an individual’s conduct is criminal under section (a)(2) if, and only if, the defendant “knows or should know” that it would cause “reasonable person” to “suffer *** emotional distress.” 720 ILCS 5/12-7.3(a)(2) (West 2012). Subsection (a)(2) contains no requirement that the individual actually intend to inflict emotional suffering on a person. Thus, as currently drafted, subsection (a)(2) bypasses “ ‘the conventional requirement for criminal conduct–awareness of some wrongdoing’ ” in favor of a reasonable person standard of criminality.

Which leads to this determination about the state's older stalking law…

Accordingly, we hold that subsection (a)(2) of the general stalking statute, of which defendant was convicted and sentenced, lacks a mens rea requirement and is therefore facially unconstitutional under the due process clause of the fourteenth amendment.

As well as its cyber version:

Subsections (a)(1) and (a)(2) of the cyberstalking statute are virtually identical to subsections (a)(1) and (a)(2) of the general stalking statute. The principal difference is that the cyberstalking statute specifies that the defendant’s course of conduct involved electronic communications. It necessarily follows then, that subsections (a)(1) and (a)(2) of the cyberstalking statute, which also lack a mens rea requirement, are facially unconstitutional under the due process clause of the fourteenth amendment for the same reason that subsections (a)(1) and (a)(2) of the general stalking statute are unconstitutional.

The court doesn't instruct the legislature to fix the state's stalking laws, but it obviously can't leave the statutes the way they are and hope to prosecute anybody under them.

Filed Under: cyberstalking, harassment, illinois, malicious intent, mens rea, stalking

Guy In Australia Pleads Guilty To Criminal Trolling On Facebook, Faces 3 Years In Jail

from the trolling-is-a-crime? dept

Let's start off with this: there's no legitimate way to defend Zane Alchin, a guy in Australia who appears to be an all around horrible person. He went on Facebook, and after seeing a friend of his post (and mock) a woman's Tinder profile, proceeded to post a whole bunch of pretty horrible and misogynistic posts on Facebook, including some pretty horrifying statements about "raping feminists." I won't post any of his other comments, though they're covered in some of the articles written about the case. Alchin, who now claims he was just drunk and trolling, and also insisted he wasn't breaking any laws, has since discovered that apparently he was breaking a weird Australian law, for which he's now pled guilty.

While Alchin admitted to posting the comments, he told police during an interview that "he was drunk at the time and the comments do not represent what he is about", the court documents said.

He said he was "internet trolling", the documents said, and was unaware it was a crime.

In January, Alchin entered a plea of not guilty to the offence, which carries a maximum penalty of three years' imprisonment.

But during a brief court appearance on Monday, his lawyer said his client would now plead guilty. Alchin is due to be sentenced on July 29.

The law in question is 474.14 of the Commonwealth Criminal Code that is insanely vague. It basically says it's against the law to use a telecommunications network to "commit a serious offense." But "serious offense" is basically left unclear. The charges against Alchin said that he used the internet to "menace, harass or cause offence." And many in Australia are pointing to the case as a landmark case against online harassment.

Again, Alchin appears to be a creep who deserves to have his name dragged through the mud for what he wrote online, but the idea that he's now facing three years in jail for what amounts to criminal "trolling" seems extreme and extremely problematic. We've certainly seen that Australia is no fan of free speech, with several questionable court rulings in the past few years, but criminalizing trollish behavior online seems like the kind of thing that is going to backfire in a big, big way. Lots of people say stuff online that may "cause offense." I'm offended by the idea that people face jail time solely for being jerks.

But when you criminalize offending someone, you actually hand tremendous power to people to attack others over "being offended." There seems to be this rush to try to criminalize speech people don't like, when it seems like most of this issue could easily be solved with simply more counterspeech. Shame Alchin all you want for being a jackass, but don't put him in jail.

Filed Under: australia, criminal speech, criminal trolling, free speech, harassment, trolling, zane alchin
Companies: facebook

The DMCA Should Not Be An All Purpose Tool For Taking Down Content; And It's Espeically Bad For Harassment

from the so-dumb dept

Remember not too long ago when some internet dude was saying that the best way to deal with harassment on the internet was to basically create a DMCA for harassment, where people could issue takedowns? And remember how we pointed out that this would make things worse, because just as the DMCA is regularly abused to silence people, this new tool would actually be used as a tool to harass more people and silence their speech? Here's just a little example of why a DMCA-like approach is a really, really, really bad idea as a way to deal with harassment or abuse online. Business Insider has a story about an unfortunate setup where a woman who is clearly being harassed was told by Twitter that she should file a DMCA notice, since some of the harassment involved using some of her photos. Following the sending of the DMCA notice, Twitter forwarded her notice to the folks harassing her, making them somewhat gleeful since it included her full contact info.

The Business Insider story doesn't reveal who the person is, and we're not going to do so either, because having looked at the details it's not going to do anyone any good. Suffice it to say that the story is legit. It involves a "controversial" topic (that shouldn't be controversial, if you're even remotely informed) and I don't want the comments on this story to devolve into an argument about said controversial topic. Either way, this is a clear story where some people on "one side" of this issue decided they were going to harass and intimidate someone on the other side. And this wasn't just garden variety "disagreement on the internet" that someone claims is harassing. This was a dedicated plan to intimidate the person. And they were clearly happy about getting her info and planned to do more with it: Elsewhere the same people discussed literally using the general controversy over the DMCA to create further harassment of the individual.

The person complained to Twitter about the harassment and it appears that someone from Twitter told her that since the people harassing her were using photos, she should make a DMCA complaint. This was mistake number one. The DMCA should never be used for things that aren't really about copyright issues. It's not designed for that kind of thing and Twitter deserves to be chided for one of its employees suggesting that. However, in looking at the commentary around all of this, a lot of people are angry that DMCA notices involve passing on the full notices. I saw someone complain that companies should never forward on DMCA notices because it only will be used for abuse. That's a really bad idea.

There are good policy reasons for why we should want companies to forward DMCA notices on to the person who gets their work taken down. For one, given all the bogus takedown notices we talk about, things would be a lot worse if the people who were accused of infringement never were able to find out the details of who sent the notice. That's part of the point of the DMCA, to create at least some channel of communication between the copyright holder and those accused of infringing. Obviously, in a harassment situation, things are totally different and it's why the DMCA notice-and-takedown is exactly the wrong tool for this sort of thing, and any attempt to expand it in that direction is a really, really bad idea.

Furthermore, we should want DMCA notices passed on, including to places like Lumen Database, because that's how we actually get some information about how the DMCA notice and takedown process is working -- or not working. Worrying about censoring information in notices or not passing them along is not a good move. It just highlights why the DMCA process is a bad idea in contexts like harassment.

Now, the Business Insider article does make a good point that other companies, like Automattic and Github, are much clearer to people who are submitting DMCA notices that their details will be passed on to those who they're accusing of infringement -- and point out that you can have an agent file on your behalf. That's also something that Twitter should do. But people complaining that Twitter should not forward on DMCA notices are confusing two separate issues. Twitter absolutely should forward on DMCA notices. That's important. What they shouldn't do is tell people to file DMCA notices over harassment issues.

Filed Under: abuse, copyright, dmca, harassment, stalking, takedowns
Companies: twitter

FBI Harassing Core Tor Developer, Demanding She Meet With Them, But Refusing To Explain Why

from the not-cool-fbi dept

Isis Agora Lovecruft is a lead software developer for Tor and has worked on Tor for many years, as well as on a variety of other security and encryption products, including Open Whisper Systems and the LEAP Encryption Access Project. And, apparently, the FBI would really like to talk to her, but won't tell her (or her lawyer) exactly why. It's really worth reading her whole post, which starts with an FBI agent showing up at her parents home and leaving a card, and then later phoning her mother's cell phone while she was at work a few days later. Lovecruft had a lawyer reach out to the FBI agent in question, which resulted in an odd discussion:

Word got to my lawyer in the US, who decided to call FBI Special Agent Mark Burnett, on that Friday, saying that he represented me and my family. Burnett said the FBI simply wanted to ask me some questions. My lawyer responded by stating that, as my invoked representation, all questions should be directed to him rather than to me or my family. The agent agreed, paused while some muffled male voices were heard in the background, and asked to call back in five minutes.

Five minutes later, Burnett called back and said, “I don’t believe you actually represent her.” Burnett stated additionally that a phone call from me might suffice, but that the FBI preferred to meet with me in person. After a pause he said, “But… if we happen to run into her on the street, we’re gonna be asking her some questions without you present.”

Complicating matters was the fact that Lovecruft was deep into the process of moving permanently to Germany, and actually had just been visiting her family in the US. She worried about whether or not she'd even be able to leave, though eventually flew back to Europe without incident. She notes that once back in Germany, she was focused on getting all the documentation in order to get her official residence visa in Germany when the FBI again came looking for her:

The day before my appointment, I spoke with my lawyer. He had received another call, this time from a FBI Special Agent Kelvin Porter in Atlanta.

Lawyer: Hello?

Agent: Hello, this is Special Agent Kelvin Porter at the FBI field offices in Atlanta. I’m calling concerning your client.

Lawyer: Yes. Why are you trying to contact her?

Agent: Well… as before… we would strongly prefer to meet her in person. We have teams in Los Angeles, San Francisco, Chicago, New York, and Atlanta keeping an eye out for her.

Lawyer: Your colleague mentioned last time that you would accept a phone call?

Agent: We would strongly prefer to meet her in person. We… uh… have some documents we’d like her opinion on.

Lawyer: Umm…? What documents?

Agent: Anyway, if she’s available to meet with us, that would be great, thanks.

It didn’t exactly help with the stress of applying for a residence visa to know that there were teams in five cities across America keeping an eye out for me. However, I’m glad to say that, the next day, my residence visa was approved. Eight hours afterwards, my laywer received a voicemail saying:

Agent: Hello this is Special Agent Kelvin Porter, we spoke two days ago regarding your client. Umm… well… so the situation with the documents… it’s umm… it’s all fixed. I mean, we would of course still be happy to meet with your client if she’s willing, but the problem has… uh… yeah… been fixed. And uh… yeah. Just let us know if she wants to set up a meeting.

So, that seemed to settle things for the time being -- though still made her nervous. That last conversation happened in January. But it appears that last week, the FBI came knocking again, and apparently said they want to serve her with a subpoena.

The FBI has contacted my lawyer again. This time, they said, “She should meet with one of our agents in San Francisco to talk. Otherwise, are you the point of contact for serving a subpoena? She’s not the target of investigation, but, uh… we uh… need her to clear up her involvement or… uh… potential involvement in a matter.”

She's (reasonably) worried that whatever the FBI is planning to ask her about or serve her with comes with a gag order and she won't be able to speak about it. She also notes that she's got a personal warrant canary, which might be worth watching for obvious reasons.

But, honestly, the part that struck me as most interesting about all of this is the incredible amount of stress that this obviously caused for her. It doesn't matter if the FBI says she's "not a target," having the FBI come looking for you can really shake you up. Especially when they won't provide any details:

I didn’t talk to anyone who wasn’t already in regular contact with me, fearing I might endanger them — some thug might show up at their mom’s door or make some threats to their lawyers — and I didn’t want to risk harming people I care about. It hurt to not tell my friends what was happening. I felt gagged and frightened. I wanted to play chess in the park. I wanted to learn duets on the piano. I wanted to ride bicycles through the ancient groves in the park in the endless Californian sunshine. I wanted to bring homemade vegan gluten-free brownies and stickers from collectives in France to my friends at the EFF. To be selfish, I wanted to read the number theory papers I’d just downloaded and play with a new pairing-based cryptography library I’d just been given the source to, but I couldn’t do those things either, simply because I was too stressed out to think straight.

I got absolutely no work done.

That, right there, is a clear description of the chilling effects that this kind of thing can cause. And that's a shame. As she later notes, her paychecks for working on Tor come from the US government. She's not a spy or a criminal. She's working on software that makes everyone safer. And no matter what the reason for the FBI's interest, it's ridiculous that someone should have to go through this kind of process.

Filed Under: fbi, harassment, isis agora lovecruft, tor
Companies: tor project

Rhode Island Attorney General Pushes Yet Another Terrible Cybercrime Bill

from the narrowly-written-legislation-is-a-criminal's-best-friend-(apparently) dept

In what appears to be an annual tradition in Rhode Island politics, legislators (and the state Attorney General) are pinging the First Amendment to see if any new loopholes have developed since the end of the last legislative session. And, of course, it's being done to save the cyberchildren from internet nastiness. (via Overlawyered)

Social media posts, sexually explicit or otherwise, that cause someone's online embarrassment or insult, would become crimes under a set of bills being advanced by Rhode Island Attorney General Peter F. Kilmartin.

Supposedly, the target is cyber-harassment. But the bill's wording is far, far, far too broad.

Unlike current state "cyber-stalking" laws, which require police to prove a pattern of harassing behavior, someone could be prosecuted under the new Kilmartin bill for a single post if at least two others pile on with "separate non-continuous acts of unconsented contact" with the victim. The original post would have to be made with the intent to cause emotional distress and be expected to cause distress in a "reasonable person."

Note the "unconsented contact." Rather than limiting itself to the non-consensual posts of an explicit nature (itself problematic without extensive exceptions), the bill would apparently require messengers to ask permission before delivering any message that might be construed as offensive.

A person shall not post a message to any other person, through the use of any medium of communication, including the Internet or a computer, computer program, computer system, or computer network, or other electronic medium of communication, without the intended recipient's consent, if all of the following apply:

(1) The person knows or has reason to know that posting the message could cause two (2) or more separate non-continuous acts of unconsented contact with the recipient;

(2) Posting the message is intended to cause conduct that would make the intended recipient feel terrorized, frightened, intimidated, threatened, harassed, or molested;

(3) Conduct arising from posting the message would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested; and

(4) Conduct arising from posting the message causes the intended recipient to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

So, having to obtain permission to send messages someone might take the wrong way is Kilmartin's hamfisted way of dealing with online harassment. This changes social media interactions from "I don't want you to get mad, but... " to "I don't want you to press charges, but…" with $1000 and up to a year in jail awaiting the person who fails to receive the go-ahead to send something distressing.

The 'two or more separate non-continuous acts" language is there to close the loophole in the anti-cyberstalking law -- something that has apparently bothered the AG ever since that badly-written law was abused by law enforcement.

There also seems to be some extraterritorial action built into the legislative proposal.

A person may be prosecuted in this state for violating or attempting to violate this section only if one of the following applies:

(1) The person posts the message while in this state;
(2) Conduct arising from posting the message occurs in this state;
(3) The intended recipient is present in this state at the time the offense or any element of the offense occurs; or
(4) The person posting the message knows that the intended recipient resides in this state.

Note that only one of these needs to apply for charge to be brought, so out-of-state residents who may not even know of the law's existence can be prosecuted for violating it.

And then there's the whole "unconsented contact" wording, which makes simple existence practically impossible if one were so inclined to take the legislation at its word(s).

Unconsented contact includes any of the following:

(i) Following or appearing within sight of the victim;
(ii) Approaching or confronting the intended recipient in a public place or on private property;
(iii) Appearing at the intended recipient’s workplace or residence;
(iv) Entering onto or remaining on property owned, leased, or occupied by the intended recipient;
(v) Contacting the intended recipient by telephone;
(vi) Sending mail, or electronic communications to the intended recipient through the use of any medium, including the Internet, a computer, computer program, computer system, or computer network; or
(vii) Placing an object on, or delivering or having delivered an object on, property owned, leased, or occupied by the intended recipient

It's a restraining order, but without the in-writing, signed-by-the-court, legally-binding paperwork! All anyone must do is "express" their desire to be left alone and everything else following that violates the law. This remains true even if the person takes steps to avoid contact ("appearing within sight") or triggers the Grover Cleveland Clause ("two non-consecutive occasions").

The ACLU of Rhode Island is opposing the bill, just like it has during past attempts to push this through. One would hope cooler (and more Constitutional) heads will prevail during the legislative process, but cooler heads are often in short supply when issues like "cybercrime" are discussed.

Filed Under: attorney general, cybercrime, emotional distress, first amendment, harassment, peter kilmartin, rhode island