Let Me Tell You Who I Am: Establishing a Federal Remedy for Interference with Online Identity.

• Author: Hamilton, Laura K.

TABLE OF CONTENTS I.FOREWORD 174 II.INTRODUCTION 174 III.BACKGROUND 176 A. Modern Problems Mandate Modern Solutions 177 B. American Torts & the Development of Information Privacy 180 C. Criminal Law: Non-Consensual Pornography and Cyberstalking 183 D. Good but Not Good Enough: Copyright Law, the Communications Decency Act, and the Fair Credit Reporting Act 185 E. Jurisdiction and the Internet 188 F. Standing 188 IV.ANALYSIS & PROPOSAL: TOWARD A FEDERAL STATUTE 190 A. Malicious Interference with Online Identity 190 B. Criminal Interference with Online Identity 194 C. Arguments Against Creating a Right of Online Identity: Constitutional Challenges 196 1. The First Amendment 196 V.CONCLUSION 199 I. FOREWORD

Since this Note's conception in the fall of 2015, the politics of online speech have changed dramatically. As of January 2017, the specter of a weakened First Amendment continues to spur debate--with the press, in particular, being admonished. (1) At the same time, women's rights and sexual freedoms have also become increasingly controversial. (2) Striking the proper balance between protecting individual rights and buttressing the First Amendment has never been more important. Accordingly, this Note argues that this delicate balance can, and should, be struck by careful and comprehensive federal legislation.

2. INTRODUCTION

   The Internet disrupts. From Fort Meade to Silicon Valley, concerns about online identity resonate. Can members of "Anonymous" remain truly anonymous? (3) What happens when Twitter can't verify a person's identity? (4) Will there come a time when we can no longer separate fact from fiction on the Internet?

   A distinct personal identity and the right to reinvention are quintessential American ideals. In 2015, the New York Times published an article branding that year "The Year We Obsessed Over Identity." (5) As the Internet becomes increasingly intertwined with all aspects of human life--such as medical care, shopping lists, mobile payments, travel documents--it is becoming increasingly difficult to separate a person's online identity from who the person is in the physical world. For most Internet users, it is unlikely that these two identities will differ significantly. (6) When individuals suffer from non-consensual pornography ("NCP"), popularly known as "revenge porn," separating offline fact from online fiction is difficult, expensive, and often impossible. (7) This Note will focus on the novel harms arising out of our dependency on the Internet, examine the current legislative landscape in the United States, and recommend that a federal statute should provide a remedy for individuals whose online identities are maliciously compromised.

   There are two general categories of harm that flow from tampering with online identity: (1) reputational harm, and (2) "historical" harm. Reputational harm concerns "true" statements that, (8) due to the Internet's unparalleled ability to reach a global audience, are expanded beyond their original scope such that the individual's reputation in the broader community is denigrated disproportionately. The consequences of reputational harm on an individual can be economic (e.g., job loss (9)), as well as emotional and physical (e.g., loss of friendships, depression, (10) and even suicide (11)).

   "Historical" harm, by contrast, concerns "false" online facts substituted for the offline truth, such that consumers of this information are unable to parse historical reality from fantasy. In extreme cases, individuals relying on false online information have committed violent crimes. (12) There is often an overlap between the two categories: NCP could be considered reputational harm, for the original photographs are generally consensual, and it may also be considered historical harm, as the original photos can be altered in Photoshop or posted alongside false statements. Clearly delineating the types of harm the federal statute is designed to prevent is crucial to understanding the feasibility of introducing legislation.

   The most obvious and important obstacle to such legislation is the First Amendment. It is also important to recognize and appreciate that the First Amendment plays a crucial role in cabining laws that seek to control activity and speech on the Internet. (13) But the First Amendment does not fully protect defamation or libel, and the Supreme Court has ruled that a private figure need not demonstrate malice in a defamation suit in order to recover. (14)

   In the United States, we are increasingly concerned with historical harm arising out of NCP, identity theft, and data privacy. (15) Section III of this Note will examine the landscape of existing legislation and explain the development of applicable tort law, ultimately concluding that neither is sufficient to address modern harms. Section IV will propose a recommendation for enacting comprehensive federal legislation. Recognizing the Internet's broad scope, the need for uniformity across state lines, and the current lack of redressability for actual harm, the proposed federal statute will allow for both civil and criminal causes of action to protect individuals from malicious interference with their online identity.

3. BACKGROUND

   "Right or wrong, the [I]nternet is a cruel historian." (16) The twenty-first century has been characterized by a perfect storm of identity information technology. With the emergence of Facebook, a billion users logged on "in a single day" in 2015 to interact on a website not dissimilar to an online Rolodex. (17) Sergey Brin and Larry Page developed a smart search engine in Google that aims to provide users with more accurate and more detailed information than ever before. (18) The inevitable result is that more information about a person's online identity is readily available, with an extraordinarily low barrier to entry. And, in a post-Snowden world, many Americans no longer expect privacy in online communications (19), whatever the federal courts may hold. (20) Once information is disseminated online, it is impossible to take back. (21) As a fictionalized Erica Albright, Mark Zuckerberg's ex-girlfriend, declares in The Social Network, "the Internet's not written in pencil, Mark, it's written in ink." (22) The Internet is permanent. (23)

   1. Modern Problems Mandate Modern Solutions

      NCP is a quintessential example of malicious interference with online identity that encompasses both reputational and historical harm. In November 2011, Holly Jacobs received an anonymous email stating, "someone is trying to make life very difficult for you." (24) The email contained a link to a site that hosted nude photos of her and an explicit video taken during a former relationship. (25) Googling her name revealed the images appeared on hundreds of other sites as well. (26) Perhaps the most horrifying detail, however, was that the posts were not limited to revealing photos, but also included contact information about her offline identity, such as her full name, email address and Facebook page. (27) When Jacobs initially approached the Miami police and the FBI, both disclaimed the existence of any legal remedies, despite several federal laws criminalizing cyberstalking and online harassment. (28) At a loss, she even resorted to copyright law by sending the linking websites takedown notices, arguing she was the original creator and owner of the nude photographs. (29)

      In exposing sensitive photographs to the Internet, NCP causes reputational harm in publishing "true" facts (real photographs of a victim's naked body) to a broader audience than intended, creating negative social and economic consequences. (30) And though the fact of the photograph may be true, its context may not be; historical harm can occur, for example, by posting NCP alongside an allegation that the victim consented to its disclosure, or that he or she has certain sexual preferences or proclivities. (31)

      In Holly Jacobs's case, Googling her name after the original images were uploaded almost exclusively brought up results of the nude photos and video. (32) As a PhD candidate who also taught undergraduate students, Jacobs worried that her professional future would be forever compromised; she legally changed her name, asking for a seal to be placed on her records, only to have the motion to seal (including both names) posted online by the county. (33) Her online identity was shattered. But the online abuse crept into her offline life when Jacobs was forced to cancel her thesis presentation for the American Psychological Association after someone reposted the nude photos alongside the date, time, and location of her talk. (34) Not only was it embarrassing to have her photos and video posted online, but prospective employers might have trouble differentiating between Holly Jacobs, PhD, and "Holly Jacobs," anonymous sex addict. How would the employer know which identity was "real"? And how likely is it that an employer would ever give her a chance to explain, instead of taking the path of least resistance and moving on to the next resume in the pile?

      Jacobs founded the "End Revenge Porn" campaign in 2012, (35) and now heads a non-profit called the "Cyber Civil Rights Initiative," dedicated to "advocating for state and federal legislative" reforms. (36) Since she began her advocacy work, thirty-five states (and the District of Columbia) have initiated anti-NCP laws and many more have legislation pending. (37)

      Unlike Dr. Jacobs, Anita Sarkeesian's ability to get hired does not depend on her Google search results, since she is self-employed. (38) However, like Dr. Jacobs, Sarkeesian is a victim of NCP of a slightly different variety. Sarkeesian is an avid video gamer, media critic, and activist with a popular YouTube channel called "Feminist Frequency." (39) She has garnered over 220,000 followers, posted nearly ninety YouTube videos deconstructing anti-feminist tropes in games, and her videos have tallied over twenty-six...