Cyber Abuse: How Technology is Changing the Intimate Partner Violence Landscape - Fordham Intellectual Property, Media & Entertainment Law Journal
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Cyber Abuse: How Technology is Changing the Intimate Partner Violence Landscape

Cyber Abuse: How Technology is Changing the Intimate Partner Violence Landscape

Cover up with make up in the mirror
Tell yourself it’s never gonna happen again
You cry alone and then he swears he loves you

Do you feel like a man
When you push her around?
Do you feel better now, as she falls to the ground?

1.

If you are not familiar with this song by Red Jumpsuit Apparatus, you may have heard “Love the Way You Lie” by Eminem, “Hell Is for Children” by Pat Benatar, or “He Hit Me (It Felt Like a Kiss)” by The Crystals. Intimate partner violence has been the subject of many popular songs throughout the decades. These songs all speak to the physical abuse that survivors face. However, they are missing a key element to intimate partner violence in the 21st century.

Technology has been revolutionary in assisting survivors of intimate partner violence to establish a new life. However, increases in technology have also led to increases in an abuser’s ability to monitor and control survivors. Cyber violence has drastically changed the criteria for intimate partner violence and has altered the resources needed to support survivors. Cyber violence refers to repeated abuse committed by one person against a current or former intimate partner through the use of digital technology.2. It includes a range of controlling and coercive behaviors, including tracking via smartphones, and the dissemination of intimate images of partners without consent (“revenge porn”). “The term ‘revenge porn’ has been criticized for failing to reflect that the images may have been distributed for a variety of reasons other than revenge and because it is inappropriate to label the images as ‘pornography.’”3.

New York state has made a large push this year to better support survivors of intimate partner violence. On July 23, 2019, Governor Cuomo signed Assembly Bill A5981, which establishes the crime of unlawful dissemination or publication of an intimate image.4 “I would have thought that this is the best moment for it to happen because we’ve had the Marines United scandal, we’ve [now had] the incredible Me Too movement, we’ve had basically so many different indications in our culture that now is the time to think about consent seriously,” said Mary Anne Franks, a professor at the University of Miami School of Law and the vice president and legal director of the Cyber Civil Rights Initiative, a non-profit that assists victims of online abuses.5 Some advocates encourage victims of revenge porn to file copyright takedowns, either by asserting that they own the copyright to an offending photo because they took it themselves, or by convincing the photographer to assign the copyright to them. This tactic can prove successful. In the first half of 2017, Microsoft honored 99.65% of the requests it received for copyright takedowns regarding dissemination of intimate images of partners without consent.6

In particular, New York City has been attempting to crack down on cyber abuse by offering technology assistance at the Family Justice Centers.7. The New York City Family Justice Centers provide survivors of domestic and “gender-based violence case management, economic empowerment, counseling, civil legal, and criminal legal assistance.”8 The Mayor’s Office to End Domestic and Gender-Based Violence (“ENDGBV”) is partnering with Cornell Tech and the NYU Tandon School of Engineering to assist survivors. Cornell Tech developed a diagnostic tool designed to identify applications on cell phones that can be used for cyberstalking and conducts digital privacy checkups for survivors of intimate partner violence. Cornell Tech’s services include scanning for spyware or malware.9 “Cornell Tech created screening questions for staffers at the Family Justice Centers to use as part of the overall safety assessment that is done with clients when they come into the centers.”10.

But is this enough? The New York bill rendering nonconsensual pornography illegal defines nonconsensual pornography: as a form of harassment, meaning that the defendant has to act with “the intent to cause harm” to fall under the new law’s purview.11 Statutes that rely on an individual’s intent set a very high bar for plaintiffs to overcome and may preclude many individuals from seeking the justice they deserve.

One of the reasons Cornell Tech became so involved with the Family Justice Centers is from recent cases in New York. In one instance, “An abusive partner kicked in our front door and wound up in the lobby of our building by tracking her phone . . . it was some secondary application that the abuser had put on it and knew exactly where she was… it was scary.” – Case manager.12 Should survivors have to resort to such extreme measures to maintain their safety?

One solution would be holding companies tortuously liable. However, it appears that case law is against them. A seminal torts case, Port Authority of New York & New Jersey v. Arcadian Corp, held that “the manufacturer of a raw material or component part that is not itself dangerous has no legal duty to prevent a buyer from incorporating the material or the part into another device that is or may be dangerous.”13. But – is spyware used for anything other than criminal purposes? Theoretically an individual could consent to spyware being placed on their electronic devices. Although I would argue, what sane adult person would voluntarily agree to allow another individual to surveil them? Intimate partner abusers who use spyware are not altering a component for criminal purposes; they are using the applications as intended. New York’s legislation does not go far enough. Holding corporations responsible for creating spyware and holding corporations such as Google or Apple responsible for selling these products on their application stores may be one of the first steps to getting true justice for survivors.

 

**If you or a loved one is suffering from cyber abuse please see the following resources**

https://herjustice.org/

You can call our live Legal Help Line and speak with a legal professional at 718.562.8181 on Thursdays from 10AM to 1PM.  Please note, we only accept family and matrimonial cases on our Help Line; clients seeking immigration advice should go to their local Family Justice Center.

https://sanctuaryforfamilies.org/gender-violence/domestic-violence/

To request counseling, shelter, and all other services, please call 1.212.349.6009 x221. The helpline operates Monday-Friday, 9 am-5 pm. At all other times you may leave a voicemail message.

https://dvp.urbanjustice.org/dvp-ourlocations

Intake Number: 1-833-321-4DVP

Monday – Friday 9 am – 5 pm

English, French, Spanish, Russian, Farsi

https://vawnet.org/sc/technology-assisted-abuse

https://www.womenslaw.org/about-abuse/abuse-using-technology

http://www.endtechabuse.org/resources/

https://tech.cornell.edu/built/nyc-hope/

http://stoprelationshipabuse.org/educated/types-of-abuse/use-of-technology/

https://www1.nyc.gov/site/ocdv/programs/family-justice-centers.page

https://www.thehotline.org/resources/victims-and-survivors/

 

**The above are a few of the resources available to you – there are many local, state, and federal organizations at your disposal**


  1. Red Jumpsuit Apparatus, Don’t You Fake It (Virgin 2006).

  2. Hadeel Al-Alosi, Cyber-Violence: Digital Abuse in the Context of Domestic Violence, 40 U.N.S.W.L.J. 1573 (2017).

  3. Id. (quoting Senate Legal and Constitutional Affairs Committee, Parliament of Australia, “Phenomenon Colloquially Referred to as ‘Revenge Porn’” (2016) 3377.

  4. H. Assemb. B. A5981, 2019 Leg., Reg. Sess. (N.Y. 2019).

  5. Kate Conger, For Survivors of Domestic Violence, Revenge Porn Is the Awful New Norm, Gizmodo (Feb. 6, 2018, 10:30 am), https://gizmodo.com/for-survivors-of-domestic-violence-revenge-porn-is-the-1822573385. [https://perma.cc/3XKB-6JS3]

  6. Id.

  7. NYC Mayor’s Office to End Domestic and Gender-Based Violence: Family Justice Centers, https://www1.nyc.gov/site/ocdv/programs/family-justice-centers.page (last visited Sept. 27, 2019). [https://perma.cc/P4RP-ZNJS]

  8. Mayor’s Office Expands Stalking Prevention Partnership with Cornell Tech and NYU (Feb. 8, 2019), Cornell Tech, https://tech.cornell.edu/news/mayors-office-expands-stalking-prevention-partnership-with-cornell-tech-and-nyu/ [https://perma.cc/UV5B-QKX8]

  9. Id.

  10. Id.

  11. H. Assemb. B. A5981, 2019 Leg., Reg. Sess. (N.Y. 2019).

  12. Diana Freed et al., “A Stalker’s Paradise”: How Intimate Partner Abusers Exploit Technology, 667 Proc. of the 2018 CHI Conf. on Hum. Factors in Computing Sys. 667:1, :667:5 (2018).

  13. Port Auth. of New York & New Jersey v. Arcadian Corp., 189 F.3d 305, 313 (3d Cir. 1999).

Caroline Schulte

Caroline Schulte is a second-year J.D. candidate at Fordham University School of Law and a staff member of the Intellectual Property, Media & Entertainment Law Journal. She holds a B.A. in Spanish and Political Science from Bucknell University.