Law, policies, and values in a non-Western context

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Law and Policy

Participant origins: Latin America, India, U.S.

Current laws: Violence Against Women Act, 21 year anniversary. Laws on multiple states including stalking, domestic violence. Many organizations that focus on domestic violence know these laws very well

Problem: Not enough law enforcement understand how these laws apply online. Jurisdiction problem, if you’re being threatened by someone in New Jersey and you are located in Boston, you have to go to New Jersey. Must know who’s threatening and know where they live. Long-arm jurisdiction. Cops often don’t know, and individuals must interpret law

Our role should be to educate public and have public pressure legislative.

  • July 23: Bill Intimate Privacy Protection Act
  • India: law states that if woman shares intimate photo with man, he cannot share without her consent
  • 24 states have passed criminal laws against non-consensual pornography
    • But they are horrible because they require intent to harass. Because usually cases don’t have intent. Perpetrators can argue it’s entertainment.
    • I’ve also tried to avoid expectation of privacy language. Intentional disclosure and knowing that there was no consent. Voluntary exposures in public are ok
    • ACLU has written in several different testimonies, revenge porn is this: former and current partner, intent to harass, reasonable expectation of privacy. And that is wrong. And they’re blocking every law they can, despite our best efforts to reach out to them. They have this fantastic mission statement that tech should be used for freedom and autonomy. But the threat of non-consensual pornography is a tool of control. Every law that regulates freedom of expression must be carefully drafted, but they’re sometimes very specious in their arguments.
    • EFF: pushes back in different way.
    • They attack it in different ways because of freedom of speech. Cathy Sierra’s post hurt me, because she understood enough but she still sided on the other end. When it becomes a women’s issue, something is triggered. Their concept of women’s issue didn’t include diversity. Anti-intersectional.
    • When you create this false dichotomy b/t free speech and women’s rights will shut down women’s speech. This is the other chilling effect. They are defending free speech for elites.
  • UMiss Law Professor: We’re also trying to change Google’s announcement in its policy change. Last presentation at Google, why wouldn’t you count nude photos of people as part of a person’s privacy.
  • VAWAs: require intentional infliction of harm for First Amendment of purposes.
    • In Mexico: you open a door and everything rushes in. A lot of feminists are asking for geolocation but that is so problematic in a corrupt government. We’re coming up to a huge wall.
  • Is an anti-violence law a better idea? Or surveillance and takedowns through corporations?
    • If you have ex who just uploaded one photo, wouldn’t be counted as harassment. Needs course of conduct, or patterns of behavior. But that’s sometimes not accurate. You need strong harassment, stalking laws AND you need laws that hit these intimate privacy invasions.
  • Recently SCOTUS voted on impact, disparate impact. Housing case. First time ever
    • If what you’re doing is having a disproportionate impact on different groups of people, even if it wasn’t intentional, you can still be held accountable.
    • But SCOTUS hasn’t been consistent
    • ACLU doesn’t like this either, which is extremely appalling. Anything related to discrimination
    • But, even though it’s not working now, do you think we could use this to frame some of the laws
      • Danielle’s piece Cyber Civil Rights. We can frame these issues as discrimination and we can use this type of language. Women are chased out of the discourse. We need to treat the internet as an office space. Under Title VII, the anti-discrimination act for employment. we’re all online as everyone else. Every employer wanted to argue that this law would ruin them. We can apply this online. There was pushback in history as well.
        • Online, who’s responsible? It wasn’t about sueing colleagues, but suing the employers, suing the person in charge of the website. It’s a privatized public space.
    • Facebook: we would like to have them reveal the situation with more transparency about what kinds of content they take down
    • Google: They used to only admit in private that they take down content in many cases. When they announced their revenge porn changes, that was the first time they publicly acknowledge, then they will start getting a hundred requests, and it becomes question of scale.
  • When it touches on commercial activity, the law becomes crystal clear
  • What do we need?
    • The technological aspect is missing, so we have tech experts.
    • Sway the ACLU national for the federal bill.
      • We need public pressure. And they assume that whatever they say about the First Amendment is true. They are not experts. Find the thing that works, which so far has been privacy, and run with that.
      • Death threats: SCOTUS case threatened wife with rap lyrics online. Decided on technicality. Good thing we didn’t get an First Amendment jurisprudence. But the threat statute itself is not good.
  • APC (Association for Progressive Communication). What about criminalization and do we want to punish with jail? We don’t have that structure in some countries. Some people in Britain writing hate Tweets are going to jail. It’s very hard to de-criminalize defamation.
    • Kevin Baller sentenced 18 years: revenge porn site, Hunter Moore sentenced 2-7 years.
    • Many porn sites are about consent. But the ACLU is closely tied to adult industry. The mainstream sites are developing niches of non-consensual pornography. And they’re profiting. The ACLU is very tied to sex industry to get their lawyers.
  • Criminalization
    • Civil or criminal penalties. The civil penalty side exists, but doesn’t work. The revenge porn industry is not worried. It costs money, and time. The Streisand effect as well, which means when you submit your nude photo for a case. So criminal penalties is the answer. UMiss: during celebrity hack, 17 year old nude photo came down like lightning, because under federal law you could go to prison. We hope nobody goes to jail, but it’ll be the answer.
    • Federal law: voyeurism act is a good model. 5 years.
    • States: misdemeanors and felonies. Law enforcement doesn’t take misdemeanors seriously. To do this type of work, you need to seize laptop and do invasive work. And to get a warrant, there’s no way a misdemeanor that could work.