Issue Deserves Greater Attention from Cyber Elite
January 25, 2010
This week internet advocates, industry groups and academics will convene in Berkeley to continue the Federal Trade Commission’s (FTC) “Exploring Privacy Roundtable” series which is intended to explore “the privacy challenges posed by the vast array of 21st century technology and business practices that collect and use consumer data.” While the roundtable is one of many such conferences the FTC has held on this issue in recent years, this is no idle concern since, as Justice Douglas once noted, “the right of privacy is older than the Bill of Rights” itself.
Privacy is one of the central consumer protection issues in the internet age and it is important that policy makers consider the privacy implications of new technologies and business practices such as behavioral targeting and social networking. The FTC is wise to draw upon the knowledge of the many well-funded public advocacy groups, academics and industry participants whose work is devoted to this field.
Yet this conference occurs at a time when each year 1.5 million Americans are victims of cyber-harassment that will (in one in four cases) last two years or more. Cyber-harassment is a huge calamity for the victims who will suffer extreme emotional distress and have their reputation stained and career threatened by an outrageous statement or revelation of their private information that will populate any Google search about them. For some victims this is too much to endure as we have seen in the suicide of Meghan Meier and other victims.
I mention this because I am struck by the disparity in resources and passion associated with privacy issues versus other internet issues. For example, Center for Digital Democracy President Jeff Chester once declared that how we resolve the question of whether or not advertisers should be able to use behavioral targeting to serve me sports related ads after I visit ESPN.com will have “profound consequences for the future of our democracy and democracies everywhere.”
In contrast, while many states have enacted cyber-harassment laws, often relief is available only where there are threats of physical harm, which occurs in less than half of all cases. This yields a collective “ho-hum” from some in the internet community who argue that there is no need for further legislation or action to address the plight of the remaining victims who may only endure “cyber-smearing” since they can always sue for defamation.
This, however, is a “Gold Card” remedy since most of the victims that I speak with (several call each month) cannot afford to spend the thousands of dollars required to litigate such an action. For this to be meaningful, the legal and public interest communities need to step up and provide assistance to help victims who would not otherwise have access to the courts. That is why I have asked law schools to consider including representation for cyber-harassment victims in their clinical programs.
The issue of cyber-harassment deserves greater attention both because of the harm caused and the complexity of the issues involved. University of Maryland School of Law Professor Danielle Citron argues that, since the overwhelming majority of victims of cyber-harassment are women (71 percent according to the latest haltabuse.org survey), current inaction and the ultimate resolution of the problem should be seen as a civil rights issue. Other solutions discussed include greater use of law enforcement or reviving state criminal defamation laws to remedy the problem; adopting a notice and take-down procedure such as what currently exists for copyright infringement and/or an analogous unmasking process for anonymous defamers — each of which raise significant First Amendment and other concerns.
At minimum, cyber-harassment is an issue that deserves greater attention from the collective brain trust of the internet community — including those attending this week’s FTC roundtable. Addressing the issue may not have “profound consequences for the future of our democracy” or provide an easy solution to the problem, but it will at least give some hope to the many Americans who are victims of cyber-harassment every day.