CYBERMOBS, CIVIL CONSPIRACY, AND TORT LIABILITY.

Author:Hua, Winhkong
 
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Introduction 1218 I. Background of Internet Harassment and Civil Conspiracy 1221 A. Internet Harassment 1221 B. Civil Litigation and its Internet Inadequacies 1229 1. Lack of Defendants 1230 2. Ease of Access and Anonymity 1236 3. Jurisdictional Issues 1240 C. Civil Conspiracy and its Features Adapted 1241 II. The Problem of Cybermobs and Civil Conspiracy as a Remedy 1245 A. Cybermobs 1245 B. Civil Conspiracy, Copyright Law, and Permissive Joinder 1248 C. Civil Conspiracy and Cybermobs 1251 III. AutoAdmit and Civil Conspiracy in Practice 1255 A. Civil Conspiracy Elements Present 1257 1. Group of Two or More 1257 2. Unlawful Objective/Lawful Objective by Unlawful Means 1258 3. Agreement 1258 4. An Unlawful Act Committed to Further the Agreement 1261 5. Harm that Was Proximately Caused by Conspiracy 1262 B. Possible Inadequacies of Cybermob Civil Conspiracy 1263 Conclusion 1264 INTRODUCTION

Cities are centers of culture, learning, and debate. These urban spaces provide a stage upon which discordant voices are brought together, where communities may form, and where ideas can clash. (1) The Internet is the new urban, where dissident voices can find refuge and where the world grows closer. (2) But even as the Internet draws people closer together and allows debate to flourish, the Internet creates new ways for people to harass and harm others. (3) So as exists in cities, structures must be created to safeguard individuals while maintaining the diversity and vibrancy that makes the space desirable.

The Internet allows individuals to be hurt in ways that simply did not previously exist. Several examples demonstrate the new types of harms that have become available when people use the Internet as a tool of harassment: from false accusations, gender discrimination, and inexplicable ire, to the scorning of people who tread past certain social norms. After the Boston Marathon Bombing, Sunil Tripathi was falsely accused on Reddit of being the Boston Bomber; his family received hundreds of threatening and anti-Islamic phone calls. (4) Reddit users from around the world trawled through news articles, images, and social media only to misidentify Mr. Tripathi, who had committed suicide days before the Bombing. (5) Steven Rudderham received death threats and hateful comments after accusations that he was a pedophile spread through Facebook; he committed suicide soon after. (6) After posting feminist critiques of video games, Anita Sarkeesian cancelled speaking engagements because of bomb threats, had her website shut down by hackers numerous times, was accused of being a fraud and a liar, and received death and rape threats which included her address and the names of her family members. (7) Jessica Leonhardt was eleven when she faced the ire of a cybermob; in just a few hours after someone posted one of her videos on 4chan, (8) her real name, phone number, real address, and social networking accounts circulated the Internet; harassers spammed her networking accounts, prank-called her home, and threatened her life. (9) As Leonhardt's mother said, "We've had many, many death threats. We're afraid to leave the house. We're afraid to go to bed. We're sleeping in shifts, my husband and I am." (10) Walter Palmer, the dentist who killed Cecil the Lion, received a staggeringly large amount of online abuse that quickly turned into harassment as Internet users shared his address, his phone number, uncovered information about his employees and his patients, and even vandalized his home. (11)

These victims share a few similarities. Something brought them into prominence and made them targets of abuse for thousands of faceless cybermob participants. Each of the people mentioned became the victim of a mob: condemned in public, their names dragged through the mud, their lives and families threatened. (12) American society has protections against this type of behavior in the physical world where harassment is criminalized, and threatening or defamatory behavior can be redressed in the courts. (13) Extrajudicial mob punishment is prohibited in the United States. (14) But these protections are inadequate when applied to the Internet, and therefore cybermob activity thrives in the digital world. (15) This Note addresses this type of behavior on two levels: first, by proposing a way for victims to recover their damages through a novel civil conspiracy cause of action and, second, by arguing that this new cause of action can be used to discourage cybermob participation.

Part I discusses Internet harassment, exploring both why it is a problem and why the civil courts are unable to provide an adequate remedy to address the problem. Part I also discusses the tort of civil conspiracy, its elements, and features. As civil conspiracy is a common law tort, which is different from jurisdiction to jurisdiction, Part I also lays out the specific form of civil conspiracy that this Note proposes to use to address cybermob harassment. Part II discusses the specific problem of cybermob harassment and why the proposed civil conspiracy cause of action could address the problem. Part III examines one case of cybermob harassment, analyzing how the facts of the case fit the elements of civil conspiracy and extrapolating how similar facts in other cybermob harassment campaigns could also fit civil conspiracy elements. Part III also explores how one court has addressed the problem examined in Part II. This Note explores the contours of and gaps in current law, to find a way for victims of cybermob harassment to recover and to discourage cybermob participation.

  1. BACKGROUND OF INTERNET HARASSMENT AND CIVIL CONSPIRACY

    Before discussing cybermob harassment in particular and how civil conspiracy can be used to address it, this Note discusses the background and legal landscape that frames these issues. The unique terrain of the Internet underlies the difficulty in addressing cybermobs and cybermob harassment. Section I.A discusses Internet harassment generally, and how features inherent to the Internet make harassment there a challenging problem to address. Section I.B discusses why civil litigation is currently an inadequate remedy for victims of Internet harassment. Section I.C addresses civil conspiracy, and what features of civil conspiracy may be useful for Internet harassment victims attempting to recover damages in court.

    1. Internet Harassment

      Cyber harassment and cyberstalking are contemporary problems that courts and legislatures have only recently begun addressing. (16) Cyber harassment and cyberstalking are defined in a variety of ways, by scholars, statutes, and common usage. (17) This Note uses Professor Danielle Citron's definitions of cyber harassment and cyberstalking. (18) Cyber harassment is "the intentional infliction of substantial emotional distress accomplished by online speech that is persistent enough to amount to a 'course of conduct' rather than an isolated incident." (19) Cyberstalking has a narrower meaning: "an online 'course of conduct' that either causes a person to fear for his or her safety or would cause a reasonable person to fear for his or her safety." (20) This Note addresses both cyber harassment and cyberstalking when using the term Internet harassment, as both problems are "accomplished by similar means and achieve similar ends," especially in the context of the cybermob harassment campaigns that this Note addresses. (21) Usage of Internet harassment as a term also encompasses harassment outside of cyberspace, insofar as acts of physical world harassment stem from an online course of conduct. (22) Internet harassment encompasses tactics that resonate across both spaces, including defamatory speech, impersonation, (23) threats, and doxxing. (24) This Note treats these tactics as part of the course of conduct encompassed under Internet harassment and identifies distinctions between those tactics as they arise.

      The Internet is an increasingly ubiquitous part of contemporary life. People are continually connected to the Internet, via cellphones, computers, and even by gaming consoles. (25) As Internet usage grows, bad behavior that uses the Internet as a medium also grows. (26) Internet harassment inflicts emotional, reputational, and pecuniary harm on its victims. (27) These harms are not confined to cyberspace; they carry over into the physical world, affecting not only the victims' presence online, but also in their day-to-day lives in the physical world. (28) Internet harassment makes some victims fear for their lives and the lives of their families. (29) Employers and educational institutions use the Internet to research employees, so that defamatory postings on the Internet can affect a victim's ability to obtain work or education. (30) Harassment campaigns can lead to emotional and psychological upset, up to and including suicide. (31) Trying to fix a negative online reputation can be difficult and expensive. (32) The upset in the lives of those affected by cyber harassment can be continuous because reputational harm is preserved on the Internet. (33) Internet harassment profoundly affects the lives of victims, even though some "might argue that online abuses are actually less serious than their offline analogs because the victim has the option of simply turning off the computer and walking away. However, in today's interconnected world that is not a viable option." (34) In modern life, it is almost impossible to avoid the Internet.

      A victim's presence on the Internet is not divorced from their life in the physical world. The interconnectedness between cyberspace and physical space means that Internet harassment is harmful even when harassers choose to limit their course of conduct solely to cyberspace. (35) Though Internet harassment is similar to and related to solely offline harassment or stalking, "despite facial similarities between physical abuses and cyber-abuses, there are significant underlying...

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