If you liked my posts about the gatekeeper responsibilities of search engines, then you’ll have loved last week’s furore over Amazon’s decision to disable search and sales ranking for “adult” material. I followed the controversy via John Naughton’s Memex 1.1 blog, here, here and here (pointing to his column in last weekend’s Observer). It has long been a source of worry that private actors such as Google and Amazon should retain so much personal data as to raise significant privacy concerns. More recently, the range of worry has broadened, with the realisation that such companies can not only manipulate their databases to target advertising at their users, but they can also manipulate them to prevent the users having access to data. Lawyers notoriously understand very little about internet reserach, and so have great difficulty in addressing the kinds of legal and regulatory issues that such manipulation reveal. I have recently blogged about articles by Oren Bracha and Frank Pasquale and by Emily B Laidlaw, arguing that actors such as Amazon and Google should come under common law duties analagous to those that govern public utilities.
More generally, over on Concurring Opinions, a rolling symposium, starting here, is considering Danielle Citron‘s seminal article “Cyber Civil Rights” 89 Boston University Law Review 61 (2009). In its details, it’s a million miles from Bracha, Pasquale, and Laidlaw; but in its strategy, it reinforces their way forward. Here’s the SSRN abstract of Citron’s paper:
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 groups. 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. 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.
[Updates: Mary Anne Franks “Unwilling Avatars: Sexual Harassment in Cyberspace” (SSRN) covers similar territory in equally challenging fashion; and see also Do We Need a Federal Law Against Cyberbullying?]. As I read Citron’s piece (though not everyone will share this view), the basic trope is that much good legal analysis can be achieved when both the law and the internet properly understand one another, so that long established legal doctrine can in fact usefully be applied to the online environment. If we understand the technical issues, we can go a long way to appropriate legal characterisations. The kind of harrassment at issue in her piece is one example (for what it’s worth, on the detail of Citron’s argument, my comments here confirm I’m with these responses). The kind of censorship being exercised by search gatekeepers is another. As Daithí argues in the symposium (and he is not alone in this), Citron’s article has the potential to lead to a reassessment of the role of the intermediary on the present-day Internet. As he points out:
There is an emerging case that differentiates between the different types of intermediary, and – crucially – recognises that many defences of intermediary liability is, today, more about the commercial interests of the big players than protecting speakers against a heavy-handed state.
Citron’s argument that civil rights norms can (must) be applied to online conduct is compelling. Daithí’s work – along with that of Bracha, Pasquale, Laidlaw – is concerned with developing similar arguments which can be applied to internet intermediaries such as Google and Amazon. Last week’s rather ham-fisted attempts at censorship can only hasten the day when the appropriate legal regulatory architecture is developed. But, as Daithí’s other contribution to the Symposium points out, this must not be simply a US-centered (sic.) response. But don’t take my word for it; head on over to the CoOp and enjoy the debate.