Political Hacktivism: Doxing & the First Amendment
| Publication year | 2022 |
53 Creighton L. Rev. 1. POLITICAL HACKTIVISM: DOXING & THE FIRST AMENDMENT
POLITICAL HACKTIVISM: DOXING & THE FIRST AMENDMENT
ALEXANDER J. LINDVALL [*]
"The intensity and complexity of life . . . have rendered necessary some retreat from the world . . . but modern enterprise and invention have, through invasions [of] privacy, subjected [people] to mental pain and distress, far greater than could be inflicted by mere bodily injury. " [1]
-Louis Brandeis (1890)
I. INTRODUCTION
On December 16, 2016, Tanya Gersh answered her phone-on the other end, she heard nothing but gunshots. [2] She hung up. Moments later, her phone rang again. "This is how we can keep the Holocaust alive," the voice on the other end said. [3] "We can bury you without touching you." [4] Several days later, Gersh received a voicemail saying, "You are surprisingly easy to find on the Internet-and in real life." [5] Gersh was caught in the eye of a neo-Nazi "troll storm." [6]
These calls and messages marked the beginning of a months-long harassment campaign orchestrated by the Daily Stormer, the world's largest neo-Nazi website. This campaign began after Sherry Spencer-the mother of the prominent neo-Nazi Richard Spencer-claimed Gersh was "spear heading" a campaign against the Spencers' local business. [7] Acting in the Spencers' defense, Andrew Anglin posted Gersh's name, address, and phone number on the Daily Stormer, urging the site's readers to "hit 'em up." [8] It didn't take long for the trolls to start swarming. "All of you deserve a bullet through your skull[s]," one email read. [9] Another message contained a picture of Gersh's twelve-year-old son superimposed over the gates of Auschwitz. [10]
What happened to Gersh is known as doxing. Doxing is a form of cyber-harassment that involves "the public release of personal information that can be used to identify or locate an individual," such as the person's home address, email address, phone number, or other contact information. [11] In a doxing campaign, the initial post will often be innocuous; it may only be a person's name and their cellphone number. But the intent behind the post is often clear: it is a request for internet trolls to harass the named individual. [12]
Gersh has a filed a first-of-its-kind lawsuit against Anglin in the District of Montana. Gersh's complaint seeks general and punitive damages from Anglin for orchestrating this religiously-motivated troll storm. [13] Anglin argues that doxing is protected by the First Amendment, thereby barring Gersh's suit. [14]
This article argues that the First Amendment does not prevent the States from enforcing well-crafted civil and criminal anti-doxing statutes. Part II of this article proposes two anti-doxing statutes-one civil, one criminal-that would likely survive a First Amendment challenge. Part III explains how existing precedent does not prevent the government from regulating and punishing doxing. Part IV addresses likely counter-arguments to this article.
"In the old days, Andrew Anglin would have burned a cross on [Tanya Gersh's] front lawn," said Richard Cohen, the President of the Southern Poverty Law Center. [15] Today, however, neo-Nazis can threaten, degrade, and harass racial and ethnic minorities from the comfort of their own homes. Freedom of speech is undoubtedly a bedrock principle in our constitutional democracy; but it should not be interpreted in a way that protects speech that causes severe emotional harms, undermines equality, and decreases meaningful public discourse. [16]
II. PROPOSED ANTI-DOXING STATUTES
"Doxing is a prevalent problem that does not yet occupy an explicit space within criminal statutes or tort law." [17] This section proposes two anti-doxing statutes-one criminal, one civil-that would likely survive a First Amendment challenge.
A. Criminal Prohibition of Doxing
(a) It is unlawful to post another person's personally identifying information online with the intention that others will use that information to harass the identified person, and the identified person is actually harassed.
(b) It is unlawful to post another person's personally identifying information online with the intention that others will use that information to harass the identified person because of their race, religion, sex, or national origin, and the identified personal is actually harassed.
(c) For the purposes of this section,
(1) "Harass" is defined as any activity that causes the targeted person to suffer severe emotional distress.
(2) "Personally identifying information" includes only such information that would allow the identified person to be located, contacted, and harassed, including the person's:
(A) home address;
(B) work address;
(C) phone number;
(D) email address; or
(E) any other information that would allow the identified person to be located, contacted, and harassed.
(d) This section does not apply in any circumstance in which its application would substantially chill protected First Amendment activity. Whether applying this statute would substantially chill protected First Amendment activity is an issue for the trial judge.
(e) Any person who violates subsection (a) is subject to a maximum penalty of 30 days in jail, a fine of up to $1,000, or both.
(f) Any person who violates subsection (b) is subject to a maximum penalty of 90 days in jail, a fine of up to $5,000, or both. [18]
B. CIVIL REMEDY FOR THE ONLINE POSTING OF PERSONALLY IDENTIFYING INFORMATION
(a) In a civil matter, the defendant shall be liable to the plaintiff if
(1) the defendant posted the plaintiff's personally identifying information on the internet with the intention that others would use that information to harass the identified person, and
(2) the plaintiff suffered emotional or economic harm due to the defendant's posting.
(b) For the purposes of this section, it is presumed that the defendant acted with the requisite mens rea if
(1) the plaintiff is a member of a protected class, and
(2) the defendant posted the plaintiff's personally identifying information on a website that espouses the belief that one race is superior to others.
(c) For the purposes of this section,
(1) "Harass" is defined as any activity that causes the targeted person to suffer severe emotional distress.
(2) "Personally identifying information" includes only such information that would allow the identified person to be located, contacted, and harassed, including the person's:
(A) home address;
(B) work address;
(C) phone number;
(D) email address; or
(E) any other information that would allow the identified person to be located, contacted, and harassed.
(d) This section does not apply in any circumstance in which its application would substantially chill protected First Amendment activity. Whether applying this statute would substantially chill protected First Amendment activity is an issue for the trial judge.
C. THESE STATUTES WOULD LIKELY SURVIVE A FIRST AMENDMENT CHALLENGE
These statutes contain three important themes: (1) heightened mens rea requirements; (2) specific definitions sections; and (3) exception clauses. The heightened mens rea requirements ensure the statutes cover only "true threats," which receive no First Amendment protection. The definitions sections ensure these statutes punish only those who cause significant harm. And the exceptions clauses decrease the likelihood of a successful facial challenge.
1. The Mens Rea Requirements
The First Amendment does not protect "true threats." [19] True threats are "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." [20] These statutes' mens rea requirements should allow them to fall into the First Amendment's true-threats exception. [21] In other words, these statutes, by their terms, only punish defendants that post personally identifying information "with the intention that others will use that information to harass the identified person." This is meant to be a difficult standard to meet. And the "with the intention" requirement ensures that the statutes will cover only the "narrow class of true threats . . . [that] may be constitutionally proscribed." [22] By targeting only this narrow class of harmful speech, these statutes prevent emotional distress without unduly hampering public discourse.
2. The Definition Sections
These statutes prohibit doxing only if harassment follows. And the statutes further define "harass[ment]" as "any activity that causes the targeted person to suffer severe emotional distress." This language ensures the statutes proscribe activity only if it causes real-world harm. In Virginia v. Black, [23] the Court noted that the true-threats exception "protects individuals from the fear of violence" and "from the possibility that the threatened violence will occur." [24] By banning only those internet postings that were intended to produce and actually produce emotional distress, these statutes fall within the boundaries of the First Amendment. [25]
These statutes also only prohibit doxers from posting "personally identifying information" that would "allow the identified person to be located, contacted, and harassed." This language ensures that the statutes will apply only when a person's "substantial privacy interests are being invaded in an . . . intolerable manner." [26] By...
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