“There Oughta be a Law”

In February 2015, two young men dared  Parker Drake to jump into a frigid ocean for virtual entertainment. Parker, who doctors diagnosed as having autism spectrum disorder, first “met” the men through twitter. After several exchanges the young men took Parker to the ocean, “for laughs” dared him to jump in and then videotaped Parker’s struggle to return to shore.  The men published the video on Facebook, you could hear them laugh as Parker battled the waves.

Upon discovering the tape, Manasquan, NJ Municipal Court officials charged the men with “endangering the welfare of an incompetent person.”  The problem, however, is that because 19 year old Parker voluntarily jumped into the ocean, the men had not, in fact, committed a crime.

The case is another example of a moral wrong failing to translate into a legal wrong.  Sadly, laws do not exist to punish those who use social media for bullying; just consider the events that prompted Tyler Clementi to jump off the George Washington Bridge.  With this unfortunate event, Parker’s mother joins the rank of parents who fail to see justice in the courts for reprehensible harms committed against their children.

The response to the Parker Drake event, much like the response to many  social media wrongs for which the criminal law offers no retribution, is both outrage and frustration.   Parker’s mother is seeking justice in the civil courts.  The politicians have weighed in too.  Just last week several New Jersey lawmakers announced their intention to draft a law aimed atpunishing individuals who victimized disabled persons.

The law is not well suited for punishment of harms like the one that happened to Parker.  Our Constitution often stands as a roadblock between justice for social media wrongs and the right to voice opinions and ideas.  First Amendment concerns prevent punishing many types of speech, particularly outside of the classroom.   And then there are issues of “void for vagueness.”  A law that punishes those who exploit the developmentally disabled leaves open to interpretation what constitutes “exploitation.” (and I suspect defendants charged in a crime such as this might try to escape punishment by challenging whether his or her “victim” was developmentally disabled.”)

I am interested in seeing the legislation New Jersey law makers propose.  My hope is that they can walk the fine line between justice and free speech.  The lawyer in me, however, suspects that the bill will never make it to the Governor’s desk; as we have seen too many times before, regulating social media bullying in the courts is a nearly impossible task.




Should we add Doxx to the Lexicon?

Emily Bazelon’s most recent NY Times Magazine article, The Online Avengers, details the activities of a group of individuals who “scour the internet for personal data” of bullies and then “publicly link that information to the perpetrator’s transgressions.”   This practice of trolling the internet for transgressions is known as “doxxing.” The article focuses in particular attention to a man named Ash, who, together with a woman named Katherine, created an online group called OpAntiBullying.  Although the group never met in person, and never met the victims for whom they championed, they worked together, for a while at least, to publicly shame adolescent bullies. One focus of the article is the infighting that eventually occurred among the small group of “do-gooders,” highlighting the fragile bond between zealots brought together by a common cause, and the way in which their united enthusiasm lead to an equally fevered undoing.

What struck me most about the article, was the use of the word doxx, which I hadn’t heard before.  A cursory google search suggests the word has yet to gain much traction.  Urbandictionary.com defines doxx as exposing someone’s true identity.  A practice, the site suggests “is one of the scummiest things someone can do on the internet.”  In contrast, Emily Bazelon profiles doxxing in a more positive manner.  In her article Bazelon credits doxxing with bringing down the defendants in the Steubenville sexual assault case and with bringing awareness to a similar assault in Canada.

Doxxers are hackers.  In most instances, a doxx can only occur if one breaks into someone’s twitter account, or instagram feed, finding incriminating comments or pictures. Consequently, most doxxers are anonymous, as was the case in the article.

But the practice and the goals of doxxers create a dichotomoy with which I am not sure I am comfortable.  While a doxxers goal is more laudable, the conduct necessary to reach his or her goal is  often  illegal.  Its a little like Robin Hood, committing a crime to achieve a better good. I am not sure how I come out on this, though I suspect I fall on the side of legality (would one expect otherwise from a lawyer?)

Regardless, I suspect  doxx will become a word uttered with increasing frequency in the coming year.  Thoughts, examples or opinions on doxx are greatly welcomed.


Another Cyberbullying Case Resulting in Suicide; WHO IS TO BLAME?

by Pat VanHall

In the fallout of the recent suicide of 12-year-old Rebecca Sedwick, from Lakeland Florida, the finger pointing has begun. Police, after making two arrests of a 14-year-old and a 12-year-old, believe the relentless bullies are to blame. The parents of one of the two alleged bullies (who both face felony charges) are deflecting blame to Facebook claiming a hack of their daughter’s account. The father of the younger of the two arrested bullies has been quoted in saying that “he wishes he could have done more” but his lack of social media savvy prevented him from knowing about the bullying. The school district, which “did all it could” to stop the bullying in school, claims it didn’t know about the cyberbullying. All of this, in light of bullying legislation already enacted in Florida which was amended as of July 1, 2013 to include cyberbullying. So what else can we do?

Across the country states are taking direct aim at cyberbullying and new bills (Wisconsin passed such a bill on October 10th) look to add cyberbullying, texting, and social media language to fully encompass this issue. The main question still remains; will more criminalization of cyberbullying help? Will tweens and teens be deterred by threat of legal consequences? It clearly didn’t help in Florida. I think the bigger problem that schools face is how they will go about monitoring a student’s account once a report of bullying has been made. In my opinion there still remains an enormous divide among generations when it comes to social media know-how. This is my own generalization, but I believe the percentage of students in middle school that are not proficient with at least one type social media (Facebook, Twitter, MySpace, and the like) probably isn’t that far off from the percentage of middle school teachers that are proficient with one or more of the platforms.
The parents of the bullies in this case are a prime example of this dilemma. One parent wishes he knew more about Facebook so he could have done something to prevent it. The other set of parents is claiming a Facebook hack of their daughter’s account insisting that they check her account every day. Both statements seem highly unlikely based on some of the posts the media has shown taken from their daughters account (pictured in the gallery here). So how do we expect teachers and school administrators to be able to monitor the students’ accounts if the parents are unsuccessful in doing so? Facebook used to have age limits (which they clearly cannot revert to) and they do have parental controls, but do parents even know about them? Should there be an age limit that requires parental consent and monitoring for a pre-teen to set up an account? Would that help? I’m not sure what the answer is, but tragic cyberbullying examples like Rebecca Sedwick are indications that things are not getting any better.



Prank Photoshopping May Be Wrong, But it Isn’t Criminal

The folks over at techdirt.com came across an interesting matter concerning Georgia lawmaker Earnest Smith’s proposed law that would make it an offense to prank photoshop an image of another without his or her permission.   According to Smith, the law poses little constitutional threat since in his words, there is no First Amendment Right to make fun of anyone.

While many may find Smith’s comments troublesome because they are just plain wrong on the matter (you can constitutionally make fun of someone – ask any cyberbullier) the issue raises a larger concern regarding the public perception of social media.  The easy dissemination of hurtful comments seems galvanize lawmakers into lifting their legislative swords.  These proposed laws are trying to criminalize the good manners that are better left to parents.   I point you to a recent article by Lyrissa Lidsky and Andrea Garcia, How Not to Criminalize Cyberbullying, which eloquently highlights the problems and perils of such regulation.

When public prominence mixes with social media, bad things are sure to happen.  Just ask Rep. Smith, who fathered the bill after his face was photoshopped onto a porn star’s body.  Such conduct is pointless and juvenile.  It is not, however, criminal in the American justice sense of the word.