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Friday, July 01, 2005

Re Internet Vigilantism

Kaimi Wenger raises an interesting issue – vigilantism propagated via the Internet. Apparently, the Korean incident is just the tip of the iceberg. For example, in California a couple of people who were frustrated by single drivers using the carpool lanes starting taking digital photos of the offenders and posting the photos on a website, www.CarPoolCheats.com.

I live in California and drive the CA freeways several days a week, so I am keenly aware of this particular frustration. California freeways are a weird phenomenon – but that’s a story for another day. As this article points out, if  people are taking to using cell phones, digital cameras, and other such technology in public to “out” public offenders, then this raises the specter of a surveillance society engendered not just by our government but also by citizens.

Dan Solove recently blogged about the difficulties of pursuing a cause of action against blogging vigilantes in Balkinization.  He asks:

Could the law provide redress? This is a complicated question; certainly under existing doctrine, making a case would have many hurdles. And some will point to practical problems. Bloggers often don’t have deep pockets. But perhaps the possibility of lawsuits might help shape the norms of the Internet. In the end, I strongly doubt that the law alone can address this problem; but its greatest contribution might be to help along the development of blogging norms that will hopefully prevent more cases such as this one from having crappy endings.”

He argues

that

the law must play a role because, [t]he stakes are too important. While entering law into the picture could indeed stifle freedom of discussion on the Internet, allowing excessive norm enforcement can be stifling to freedom as well.”
However, I think that legal recourse is ultimately an impractical and possibly undesirable option.

Let's be clear: I would  hate to be dog-shit-girl and I have a deep-seated  passion for anonymity (well, except in my professional life) and personal privacy.   

But as to a possible legal recourse, this is a situation where the sum (of the obstacles) is possibly greater than the parts (the individual obstacles). At a minimum, such obstacles include: the inherent weaknesses in a privacy tort cause of action in such cases (but Dan Solove does make an argument for the necessity of rethinking the private/public dichotomy generally inherent in privacy law), the difficulty of locating and serving a potentially prohibitive number of defendants, and, most importantly, the victim’s extreme emotional distress caused by the exacerbation of the publicity (and public shaming) that a legal claim would engender.

I think what we are talking about here is a phenomenon that will only grow more profound in scope. However, I also think it is a phenomenon that will play out largely outside of the  legal sphere. For example, in the case of CarPoolCheats.com, the owners of the website shut it down “due to several threatening communications from an individual or individuals presently (but not for long) unknown to us.”    (To be fair, they do claim to be evaluating their legal options -- but I think they are probably just grandstanding.)

And finally, an anecdote: my significant other is a hard-core gamer and he just related to me an amusing analogy. In the virtual world of his game-of-choice, when a monster is killed and drops some loot, the players decide in a deliberative fashion which player should get the loot. But there are virtual world offenders who will simply grab the loot and run, believing the other players have little recourse and don’t know her real identity anyway. How do the players punish the offender? By taking a screen shot of the stealing incident and posting it in the game forum. These photos are accompanied by statements such as, “DemonStalker is a Ninja-looter. Don’t play with her.” So goes norm enforcement in the virtual world.

Posted by Marcy Peek on July 1, 2005 at 05:59 AM in Information and Technology | Permalink

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Comments

Marcy,

You write: "I think what we are talking about here is a phenomenon that will only grow more profound in scope. However, I also think it is a phenomenon that will play out largely outside of the legal sphere." I generally agree, because many aspects of life are largely governed by norms. Indeed, it can certainly be argued that norms are more critical to maintaining social order than the law. Even obedience to the law is heavily influenced by norms. But that doesn't mean that law should not play a role. The law can help shape norms and expectations. Knowing that one can be sued for what one says and does in the blogosphere might make one more cautious about one's activities. In negative First Amendment lingo, this is a kind of "chilling effect," and while I believe strongly in preventing chilling effects on speech, not all chills are bad.

Dan

Posted by: Daniel Solove | Jul 1, 2005 12:03:47 PM

Why is so-called internet vigilatism, at least with the examples you've provided, so bad that we would even consider making the behavior illegal or chilling it?

The line should be one of privacy. If I'm on the crapper, I have an expectation of privacy; if I'm in my home, I have an expectation of privacy. But if I'm on the subway refusing to obey the law and pick up the dog shit, I have only myself to blame.

Posted by: Hillel Levin | Jul 1, 2005 12:19:51 PM

Hillel: its a question of proportion. We don't execute people for auto theft, we don't imprison them for jaywalking, we certainly ought not to make them notorious worldwide for, admittedly, obnoxious stuff like letting one's dog shit on the subway.

Posted by: Paul Gowder | Jul 1, 2005 12:44:51 PM

1. That we "ought not" do something is not the same as making it illegal. We "ought not" be uncivil to one another; but there's no law against being a jerk, and we like that just fine.

2. This person made herself notorious publicly. She was obviously not embarassed by her behavior. When you put shit on the floor of a public train (obnoxious, and likely illegal), you don't care that the people on the train know who you are and what you've done. If you want to do that kind of thing in your own home, help yourself. If you do it in public, it is public knowledge.

Posted by: Hillel Levin | Jul 1, 2005 1:41:04 PM

Hillel,

Even in public, people can have expectations that others will invade their privacy only so much. So at the urinal, if the guy next to you keeps glancing over at you while you're urinating, you might experience great uneasiness and view the person's behavior as out of line. Similarly, if a person stalked you all day long, this could even engender criminal sanctions. Even though you're in public doesn't mean you have no privacy. This is why in my Balkinization post, I mention that privacy shouldn't be understood in a binary way -- it's a question of degree. Privacy is a complicated set of norms, expectations, and desires that goes far beyond the simplistic notion that if you're in public, you have no privacy.

This woman committed a minor infraction. Ordinarily, there would be a reaction by others disturbed at the deviation from social norms and possibly a fine if subjected to legal sanction. We've progressed as a society beyond using scarlet letters and pillories. And even worse, do we want to return to mob justice, where disproportionate extra-legal penalties are meted out by possies? Paradoxically, overzealous norm enforcement such as what happened here can be a recipe for more disorder, not order.

Dan

Posted by: Daniel Solove | Jul 1, 2005 2:04:23 PM

Dan:

1. This woman committed a minor infraction. Instead of 20 people knowing about her minor infraction, now thousands do. What's the big deal? No one is accusing her of anything more than a minor infraction.

2. You are right that there may be tough cases: is a urinal in a public restroom public or private, or something in between (as you suggest, and as I agree)? But this one isn't a hard case. This is a public train for heaven's sake!

3. You say that people have different expectations in different places. Surely true. But don't expectations change as norms and technology change? So let the expectations change, and let people be more wary about leaving their dog shit on the train. Fantastic!

There may well be examples of "outings" that I think are bad. (For instance, pictures of celebrity children in public when they aren't self-promoting--I could do less of those.) But the dog shit case isn't one of them.

As for the internet plagiarist, I do feel very sorry for her. And I may even be a little bit offended. But you know what? Technology has made it easier than ever before to cheat; is it so horrible if technology now makes it easier to catch and deter such cheating?

Posted by: Hillel Levin | Jul 1, 2005 2:14:10 PM

Really, I don't believe the "punishment" of having one's face splashed on the internet for minor offnses is really much of a punishment for most of the populace. Most people with internet access take a lot of time looking around for California traffic violations sites, unless a) they are the person photographed, or another person pissed off at lousy driving or b) there is some kind of added value, such as funny captions or something like that. The site seems more like a ventilation of grief for the people taking the pictures.

Now, if the accusations were untrue, or exaggerated to the point of real harm, without foundation, then there is a solution, defamation suits.

Posted by: TomH | Jul 1, 2005 2:16:47 PM

As for the dog shit girl, in about five minutes, everyone is going to forget about it, and why the hell shouldn't she be publicly excoriated in a rather harmless way for such lousy behavior. Perhaps next time she will think twice. I find that many people don't want punishment for public wrongs to be publicly known. I defeats the entire purpose of punishment (whether by the state or not). A little short term scorn may go a long way to preventing many little crimes, if not big ones.

As an aside, I ask, with no data of my own, if we are not too protective of wrongdoers, and if they risk wrongdoing because they do not care if they are caught?

Posted by: TomH | Jul 1, 2005 2:26:00 PM

Hillel & TomH:

There are two issues here that we need to tease out. One involves the appropriateness of the norm enforcement. How much norm enforcement is appropriate and desirable? I'm not so sure that norm enforcement via cyberspace is such a great thing. In my Balkinization post, I explain why the dog-shit-girl will not readily be forgotten in today's information age.

Moreover, what about when the norm enforcement involves norms you may not like? So what about norm enforcement in a rural red state area, for example?

If a person does a norm infraction, is any level of norm enforcement appropriate? It seems as though you have no sense of proportionality. If you do wrong, then be it a mild scolding or an lynching, it seems all the fine. Do you have an approach regarding proportionality for sanctions of norm violators?

The second issue involves privacy. Hillel thinks that once you're in a public place, that's it. No privacy. Suppose a gay person in the closet goes to a gay bar, not expecting to find family and friends there who don't know he's gay. And somebody at the bar snaps a photo of the person dancing with another man and posts it in a high-traffic blog, outing him. Is this ok? Suppose that Hillel is buying hemorrhoid medication at the drug store -- ok for me to snap a photo and put it up on PrawfsBlawg? He's in public, after all. Perhaps I'm wrong, but I guess all of us have moments when we're in public where we would not want a photo taken of us and placed on the Internet along with our names and other personal data. Isn't this a norm infraction too? It might also very well be a tort violation under certain circumstances where courts make exceptions to the rule that when you're in public, you have no privacy. See, for example, Daily Times Democrat v. Graham, 162 So.2d 474 (Ala. 1964) (actionable invasion of privacy claim when photographer took a woman's photo at an amusement park where air jets were blowing up her dress); Nader v. GM, 255 N.E.2d 765 (N.Y. Ct. App. 1970) (actionable invasion of privacy claim for "overzealous surveillance" in public). These cases are the exception, but I hope that as conceptions of privacy mature, they will no longer be exceptions.

Dan

Posted by: Daniel Solove | Jul 1, 2005 3:00:10 PM

Dan:

1. That you may do something that embarasses me (catch me buying prepH and post it on the blawg) may be insensitive, even "wrong" in a moral sense. But to the extent someone suggests that it should be illegal, I disagree. I'd say the same thing about the person going to the gay bar. I feel terrible for such a person, and the picture-poster is morally wrong (because he achieves nothing positive, unlike the dog shit picture, and the harm can be immense). But you can't always legislate decency. Indeed, you wouldn't always want to.

2. Moreover, the behavior of the dog shit girl is likely illegal. My buying prepH is not.

Let me give you a counter-example. Joe is a prominent conservative legislator who speaks out against gays all the time. Someone takes a picture of him in a gay bar and posts it. Do you want to prevent that behavior?

Finally, as I said: when technology changes, behavior follows. No more dog shit girls after this one, or at least fewer. And people will learn to be more discrete.

Posted by: Hillel Levin | Jul 1, 2005 3:43:22 PM

re: Norm enforcement and proportionality

I think too that one may run into a first amendment, prior restraint issue if the government tells me that I am not allowed to criticize my fellow citcitizens. Heaven forfend that a public official would actually do something corrupt and a law told me I could not discuss it in publc without a government sanctioned proportionality rating.

We live in a market place of ideas. Without the right to express those ideas and to let them live and die on their own merits we lose something.

Frankly, although this comment is the height of misapplied anecdotal logic, with respect to the Korean lady, apart form this blog, I have no idea what happened or who she is. Nor [quick poll] does anyone in my office.

Oh, would that a curious sociologist would study "publication punishment" phenomena and give us some guidance . . .

Posted by: TomH | Jul 1, 2005 3:46:07 PM

As Hillel points out, “when technology changes, behavior follows.” But taken to the extreme, this falls into the analogous slippery-slope trap of the “reasonable expectation of privacy” test (in Fourth Amendment jurisprudence) under which “reasonable expectations” change as technology evolves and before we know it, we have little or no reasonable expectation of privacy at all.

So, for example, we know that it is now possible for anyone to take a picture of me pretty much anywhere in public (via cellphone, etc.) and surreptitiously. Let’s say I decide to poke around in my nose and/or subtly dislodge my underwear from an uncomfortable position. Well, I may have been in public, e.g., I may have been in a darkened theater where I thought no one would see me. But nevertheless, one of my overzealous (cf. Nader v. GM) students witnesses both incidents and posts them online with the caption, “Professor Peek Exposed!” Should my expectation be that anywhere, anytime someone might snap a cell phone pic of me, distribute it online, and it is fair game because it is technologically possible and I was “in public?” And I should change my behavior accordingly, never letting my public mask slip even a bit unless I am in the safe confines of my home? I’m sure we could think of harder cases, but you get the idea.

Neither of these really involves issues of norm enforcements, but let’s say the same student caught me tossing a lit cigarette into the dry hillsides of Los Angeles (obviously a big no-no out here in Los Angeles). The overzealous student surreptitiously takes a cell phone pic and posts the pic online. Now I am forever in cyberspace, caught tossing a lit cigarette into the dry bushes. When a potential employer Googles me twenty years from now, they find this pic and decide that I am irresponsible. I don't get the job. The point: because of the implications of technology and cyberspace, dog-poo-girl is likely to have a lot more than fifteen minutes of fame.

In sum, I agree with Dan that norm enforcement via cyberspace is problematic and has the potential to be grossly out of proportion to the infraction.

Posted by: Marcy Peek | Jul 3, 2005 2:03:29 AM

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