IPLJ BLOG FEATURE: From the Desk of the Editor - Fordham Intellectual Property, Media & Entertainment Law Journal
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IPLJ BLOG FEATURE: From the Desk of the Editor

IPLJ BLOG FEATURE: From the Desk of the Editor

Each month, Editor-in-Chief Jacqueline McMahon weighs in on topics and legal issues covered in the IPLJ.  This month Jacqueline focuses on online bullying and what it takes to stop it.

The Misunderstood Communications Decency Act: A Service Provider Solution to Cyberbullying?

Fake Myspace profiles.  Smut lists posted on Facebook and spread using Blackberry Messenger.  These are just some of the techniques utilized by cyberbullies today, as reported in a recent segment of NBC’s Today Show.

Cyberbullying is defined as “willful and repeated harm inflicted through the use of computers, cell phones, and other electronic devices.”  In recent years, reports of cyberbullying have spattered news programs across the country.  Who could forget the infamous case of  Megan Meir, a 13-year-old who committed suicide in 2007 after an online fraudulent romance devolved into bullying and harassment?  Tragedy struck again last fall when Rutgers University freshman Tyler Clementi took a fatal jump from the George Washington Bridge after other University students broadcast one of Tyler’s intimate sexual encounters live on the internet, complete with gossip commentary on Twitter and iChat.  Most recently, the shocking suicide of 14-year-old James Rodemeyer, has put a spotlight on online bullying of gay teens.  These stories made news because of their devastating consequences, but instances of cyberbullying are far more commonplace than many would like to believe, and the consequences more insidious and long-lasting.

The harm of cyberbullying occurs when the harassing material is published online.  However, current state legislation addressing this activity provides for tort remedies or criminal action only after the harmful content is posted and is, in large part, ineffective.  In a tort action for libel, for instance, the victim of bullying is entitled to go after the poster, but user anonymity makes identification of the harasser nearly impossible.  Moreover, criminal defamation laws, which would apply in many cyberbullying cases, are only available in approximately half of the states and are rarely ever used to prosecute.

Commentators argue that federal law, in the form of the Communications Decency Act (1996) (CDA), provides little additional solace.  Scholars, like Bradley Areheart, complain that the immunity provisions of the CDA for an internet service provider (ISP), coupled with the insufficient state remedies, leave victims with no recourse.  However, the CDA does not provide complete immunity to ISPs, but rather creates a safe haven when these providers take “any action voluntarily… in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected….”

Accordingly, CDA opens the door for ISPs to filter harmful content before it is published, truly addressing the heart of the cyberbullying problem.  In fact, some ISPs, like Verizon, Google, and AOL, already have the capabilities to screen and filter information transmitted through their networks.  Verizon’s privacy policy indicates that Verizon monitors personal information transmitted over its network in order to ensure compliance with applicable laws.  Google’s privacy policy is even more explicit, informing users that it retains message content sent using one of Google’s services:

When you send email or other communications to Google, we may retain those communications in order to process your inquiries, respond to your requests and improve our services. When you send and receive SMS messages to or from one of our services that provides SMS functionality, we may collect and maintain information associated with those messages, such as the phone number, the wireless carrier associated with the phone number, the content of the message, and the date and time of the transaction.

Some smaller social networking and dating websites go even further.  For example, in its user agreement, Match.com informs users that it reviews content before public posting and may delete that content if it is deemed “offensive, illegal, or … might violate the rights, harm, or threaten the safety of Members.”  Match.com also reserves the right to block specific IP addresses from accessing the site at all, presumably if harmful content was generated from such an address.

Perhaps the solution is not to eliminate ISP immunity, but to encourage large ISPs to utilize the immunity Congress has provided and the technology already available to them in a way that benefits and protects society.  While veteran bullies may find ways around the screens, allowing some harassing material to seep through, a majority of unsophisticated internet users will be limited to that which is available to them, thereby eliminating a substantial portion of the risk.

Of course, when the conversation meanders into the arena of regulating content pre-posting, overarching concerns of interference with the First Amendment rear their complicated heads.  However, the Supreme Court has consistently recognized that freedom of speech is not an absolute right, but rather the benefit derived from the contentious speech must be weighed against the larger societal interests in morality and public order.  The Supreme Court has already balanced those interests in several classes of speech, now deemed unprotected: lewd and vulgar speech (in the school context), defamation, libel, fighting words, inciting lawless action, and true threats.  Furthermore, as CDA was enacted with the purpose of encouraging private efforts to deal with internet indecency, state action may not be implicated at all, eliminating the absolute starting point in any First Amendment challenge.

Fundamental notions of individual autonomy underlie the First Amendment right to free speech.  However, referring to crowds of online bullies, known as “mobs,” who target specific groups, Professor Danielle Citron explains, “[r]estraining a mob’s most destructive assaults is essential to defending the expressive autonomy and equality of its victims.  Preventing mobs from driving vulnerable people offline would ‘advance the reasons why we protect free speech in the first place,’ even though it would inevitably chill some speech of online mobs.”

Even if First Amendment is not an issue, the idea of an ISP snooping around in the content of an online post, and possibly altering the content if necessary, seems to strike a chord with basic notions of privacy which are also tied to personal autonomy.  However, traditional privacy rights “protect[ ] the individual against incursion of the community, based on respect for the individual’s personhood or autonomy.”  Accordingly, once, and if, an individual voluntarily releases (or at least attempts to release) information to the online community, there is no more fear of unwanted community invasion.

So, to recap: internet service providers have the capabilities to filter the bullying material, Congress has given the go-ahead, and the First Amendment appears to erect no barrier.  Considering the devastating costs of inaction, what are we waiting for?

Jacqueline P. McMahon

Jacqueline McMahon is a third year law student at Fordham and the current Editor-in-Chief of the IPLJ. Her primary interests include cybercrimes, information privacy, and First Amendment issues. She is also an avid animal lover and enjoys baking in her free time.