Data Privacy in the Cyber Age: Recommendations for Regulating Doxing and Swatting.

• Author: Li, Lisa Bei

Table of Contents I. Introduction 318 II. Background 319 III. Analysis 320 A. Hate Speech is Often Protected by the First Amendment 320 B. Online Harassment Initially Involves Communication, Which is Difficult to Regulate 321 C. Doxing and Swatting Fall Within the Purview of Existing Federal Laws, But the Federal Government Does Not Specifically Regulate Doxing and Swatting 323 D. Existing Federal Laws are Inadequate and Outdated 324 IV. Recommendations 326 V. Conclusion 327 I. INTRODUCTION

Although online harassment encompasses many activities, including cyberbullying and cyberstalking, ever-increasing "troll storms" lead to two unique phenomena: doxing (1) and swatting. (2) Doxing is when someone's personal information is shared on the Internet without their consent (3) and swatting is when someone makes a fictitious report to the police that leads armed officers to come to an unknowing "victim's" home. (4) In these instances, an online "troll," defined as an inflammatory Internet user (5), calls to action other trolls to cause a "storm" that incites the group to disseminate victims' private information and hail armed forces to victims' homes as acts of terrorization. (6)

Every Internet user is subject to potential doxing. As a form of harassment, perpetrators reveal victims' personal information without permission. (7) The information shared is usually sensitive, like one's social security number, medical records, and personal messages or photos. (8) Even elderly individuals, who take care to lead private lives, are sometimes "doxed." (9)

Victims of online harassment are also subject to swatting. Swatters make fraudulent calls to the police who then send SWAT teams (10) to victims' allegedly dangerous homes to remove them at gunpoint. According to the New York Times, "[t]he FBI has estimated that about 400 cases of swatting occur nationwide every year, but anecdotal reports suggest the numbers are far higher than that.... (11)

While online harassment comes in many forms, abuse of the Internet and its resulting harms can be curbed if the government focuses on the aspects of harassment that the law can regulate, particularly with regards to data privacy. This would require targeting the conduct related to and resulting from online harassment, such as doxing and swatting. While speech and expression may not be easily restrained, the manipulative and unauthorized use of others' data and the deception of police forces can be prevented. If these goals of "troll storms" are eliminated, trolls will be less likely to disrupt others both on and off the Internet.

2. BACKGROUND

   In 2016, Andrew Anglin, the infamous neo-Nazi host of conservative website The Daily Stormer, (12) launched a "troll storm campaign" against Tanya Gersh, a Jewish real estate agent living in Montana. (13) In his campaign, Anglin called for readers to "make [their] opinions known against the Jewish people of Montana. (14) Although he explicitly incited the resulting 700 threatening anti-Semitic phone calls, emails, and text messages sent to Gersh, (15) Anglin also posted that he was not advocating for "violence or threats of violence." (16) Thus, Anglin's campaign, on its face, could be categorized as involving hate speech, but likely not more. (17) As the below Analysis will show, hate speech and other online communication is difficult to regulate, and existing laws do not provide the restraint required to curb harassing activities such as doxing and swatting.

   This Comment covers examples of online harassment related to doxing and swatting, the conduct of doxing and swatting separate from hate speech, the difficulty of regulating hate speech and online communications, and the current laws available to restrain doxing and swatting. This Comment further asserts the inadequacy of existing laws covering cyber-harassment activity. Finally, this Comment recommends specific changes to federal laws that could be lobbied for in Congress to regulate doxing and swatting.

3. ANALYSIS

   1. Hate Speech is Often Protected by the First Amendment

      As case law has established, hate speech targeting racist and other agendas is, on its own, protected (18) by the First Amendment's guarantee of "freedom of speech." (19) But, the First Amendment does not protect against otherwise illegal conduct that involves speech. (20) For example, once expression incites "imminent lawless action," (21) "fighting words," (22) or a "true threat," (23) then the speech is no longer protected and the speaker may be subject to other criminal or civil laws. (24) Unfortunately, the bar for reaching such levels of speech is quite high.

      The First Amendment generally restricts government regulation of content-based and/or viewpoint-based language, (25) even if the language amounts to offensive communication. (26) This applies not only to hate speech, but also to other intimidating and/or threatening conversations initiated online. (27)

      In contrast, doxing and swatting are concrete actions associated with online harassment and trolling. (28) Doxing and swatting are conduct, and conduct is generally not protected by the First Amendment. (29) Therefore, given the constitutional challenges of regulating speech and expression, the best way to mitigate online harassment would be to focus on the conduct associated with and caused by harassment, instead of focusing on the harassing communication itself.

   2. Online Harassment Initially Involves Communication, Which is Difficult to Regulate

      Almost all online harassment involves communication, whether the medium is through a social media post, on a forum, or in a chatroom. (30) Online communication and its many forms make online harassment an increasingly important issue for lawmakers to address. (31) Unfortunately, current focus on the communication aspect of harassment makes it subject to challenges, both constitutional and practical. Constitutional issues present a roadblock for victims attempting to obtain redress either under statutes or under common law. Applications of existing criminal and civil statutes are often challenged in court by defendants asserting First Amendment defenses. (32) As previously identified, "cyber[-]harassment statutes remain vulnerable to constitutional challenges for substantial over[-]breadth or vagueness due to their potential restrictions on protected speech." (33) Victims bringing suit pursuant to a common law tort offense, such as the Intentional Infliction of Emotional Distress ("IIED"), must also be able to maneuver the procedural hurdles of litigation. (34)

      On the other hand, defendants can use the Fourth and Fifth Amendments as affirmative defenses, protecting against search and seizure and against self-incrimination, respectively. (35) Therefore, even if a victim is able to bring the case to court, the alleged harasser has multiple constitutional defenses that he or she could assert, making an already time-consuming and expensive process even harder for the victim pursuing litigation. Due to these difficulties, bringing a case based on threating or harassing speech is a difficult route to take for online harassment victims. Instead, the law is more amenable to regulating harassing conduct, like doxing and...