Gary Marshall's Technology Law Blog

In the news this week, Dharun Ravi is on trial for several crimes in connection with college freshman Tyler Clementi’s suicide. The news reports originally claimed that Ravi secretly taped Clementi making out with another young man and broadcast the video live on the Internet and that this act drove Clementi to commit suicide. Should there be a specific law to cover harassment over the Internet that results in suicide?

Because Ravi used the Internet to broadcast his harassment and because the victim of his harassment later committed suicide, it seems like what he did was worse than other thoughtless school pranks.

Should we make a distinction between youthful pranks that harass but do not involve the Internet and those that do? Both are bad, and both should be punished. But should the fact that the prank is broadcast on the Internet mean it should be treated more severely than other pranks? This case raises these issues. Ravi is not actually being charged with causing Clementi’s suicide, but I do not believe that he would have been charged at all if Clementi had not committed suicide.

The Clementi case is actually more complex than it at first seems. Let me make this clear. What Clementi’s roommate Ravi did was wrong. But how wrong was it from a legal point of view?

There is very little law concerning Internet harassment and its consequences. So the police and prosecutors in this case had to turn to existing law and apply it to the Internet. Ravi is being charged with two counts of criminal invasion of privacy, one for making the sex tape, and the other for distributing it. The prosecution has added a charge of bias intimidation as a hate crime, along with hindering apprehension and witness tampering.

Is Ravi guilty of any of that? Even Clementi said on his on-line posts that the video of him did not really show anything. Is it a crime to attempt to show sexual conduct, or does one have to actually succeed to be guilty?

The invasion of privacy claim seems weak. Did Ravi invade Clementi’s privacy by showing him in a gay encounter on the Internet? Maybe, maybe not. Apparently the video did not show any nudity or other private matter other than that Clementi was gay. Clementi did not hide his sexual orientation from his roommate. He had openly talked about being gay on JustUsBoys.com. Somehow his roommate had seen his posts there and on August 22, a month before the video incident, tweeted “Found out my roommate is gay,” and linked to the JustUsBoys.com thread.

On the nights in question, Clementi told Ravi that he wanted to use the room that night to make out with another man. (From his entries on JustUsBoys.com: “so the other night I had a guy over. I had talked to my roommate that afternoon and he had said it w/ be fine with him.”) How much privacy can one expect in a dorm room that he shares with another person? His roommate did in fact walk in on him during one such encounter. That was to be expected.

Is there a difference between being open about your sexual orientation to your roommate and having your roommate announce it to the entire world on the Internet? Is a secret still a secret if it gets out to one person, knowing he might tell other people in your dorm, but no longer a secret when that person then turns around and uses the power of the Internet to tell a million other people on the Internet? I don’t think that Clementi’s sexual orientation can be considered a private matter. Therefore there can not be any invasion of his privacy by the mere announcement to the world that he is gay.

The bias intimidation claim is a little stronger. Ravi apparently invited his friends to view his gay roommate making out. But how intimidating could it have been to Clementi for Ravi to openly accuse him of being gay when Clementi publicly acknowledged that he was gay?

I have come to the conclusion that the Internet does not introduce new concepts to the law. But it does magnify existing legal issues. There is a concept that lawyers call the slippery slope. An act which may seem reasonable when done to a small degree, becomes less and less reasonable when done to a larger degree, until at the other extreme, it seems totally unreasonable. When an activity takes place on the Internet, you can go very quickly from a slippery slope to jumping off a cliff. This is a theme that I expect to be talking about a lot on this Blog.

In this case, if Ravi had just told some people in the dorm that Clementi was gay, we probably would not be talking about the incident. He would not even get in trouble. If he had handed out leaflets on school grounds announcing that his roommate is gay, he might have gotten in trouble with his school, but it would probably not be a crime. The fact that he broadcast the information on the Internet where it was viewable by millions seems to make it worse. But is it that different?

Of course, if he had succeeded in video taping anything revealing and had broadcast that on the Internet, it might have been different. I suspect that it has always been quite common for college kids to photograph each other in compromising situations. In the old days when a single copy of a photo, often a low resolution blurry image, was handed around a school or a dorm, this seemed like no big deal to most people. The fact that that photo or video now gets recorded in high definition with automatic focusing and then is sent to hundreds or thousands or millions of people by telephone texting or on the Internet makes the consequences much more serious. The actual act is still the same – it is still just a stupid thoughtless school prank. Such acts should be punished, not condoned. But should the same act be punished more severely because it is seen by more people? Maybe or maybe not.

I suspect that prosecutors will have a hard time proving invasion of privacy. They are not even trying to prove that Ravi contributed to Clementi’s suicide. Should they try? Since what Ravi did was reprehensible, it is likely the jury will find him guilty of some of the charges. But should they?

I have not heard of any school action against Ravi. Why was there no school punishment? If there had been school punishment, should that have been enough? Would it have been enough if Clementi had not committed suicide? Would it have been enough if Ravi had not tried to broadcast his video on the Internet? Should these factors be taken into account?

This is the fourth case in recent years that I am aware of where a young person committed suicide after being harassed on the Internet.

In 2007, 13-year old Megan Meier thought she had made a new friend when a cute teenage boy named Josh contacted her on MySpace and began exchanging messages with her. When he abruptly ended their on-line friendship a month later she committed suicide. It turns out she had been corresponding with several members of the same family that included a so-called friend of hers, and her mother, all pretending to be Josh. The mother was charged with violating various federal laws related to computer fraud and abuse, and was convicted. Her convictions were reversed on appeal. http://en.wikipedia.org/wiki/Suicide_of_Megan_Meier

In May 2008, high school student Jessica Logan broke up with her boyfriend. She had previously sent him nude photos by telephone. After the break-up he sent her nude photos to hundreds of students at their school. Logan faced harassment, abuse, humiliation, and stereotyping as a bad girl. Two months later in July 2008, Logan committed suicide. No one was charged.

In 2009, the story repeated itself. In June Hope Whitsell, just 13 years old, sent a semi-nude photo of herself to a boy she liked. He or possibly a friend of his forwarded it to his friends and the photo ended up being widely distributed at her middle school and the local high school. She was also harassed by school mates and committed suicide in October. Again no one was charged.

What distinguishes these cases from other teenage suicides is that the harassment took place over the Internet. Does that require an entirely new legal paradigm? I think we are fascinated by these case because the Internet is still relatively new and we are amazed by the power of the Internet.

Unfortunately teenage suicide is not uncommon. The Centers for Disease control report that approximately 4,400 teenagers commit suicide each year. Suicide is the third leading cause of death, behind accidents and homicide, of people aged 15 to 24, and the fourth leading cause of death for children between the ages of 10 and 14. http://www.cdc.gov/violenceprevention/pub/youth_suicide.html

I am sure that every one of those suicides has a story to tell. But we do not hear most of them.

Do we really need a new set of laws to deal with four cases of teenage suicide over a four year period? What are we doing in the meantime to prevent the other 3,399 teenage suicides each year?

Will we stop being shocked by youthful pranks that go viral on the Internet once the Internet has been around for a while, or will we hold this generation’s youth to a higher standard than their parents, because they have more technological power to publicize their pranks? Most stupid school pranks are best handled as a minor criminal matter in very serious cases, and subject to school discipline in less serious cases. Should the fact that Ravi used the Internet mean that he should be charged with multiple felonies and up to ten years in jail? Should we take into account that Clementi committed suicide, when Ravi is not actually charged with that?

I have some thoughts, but will save them for a later post.

I wish people would start discussing these issues on my blog. What do you think?

Update March 9, 2012: The prosecution has rested its case. Commentators said they put on a stronger case against Ravi than was expected. The Defense starts today.

Update March 12, 2012. The defense has rested. It does not sound to me like they put on a good defense. Every case has good facts and bad facts. You need to embrace the bad facts and convince the fact finder that you deserve to win despite the bad facts. Ravi’s actions were reprehensible. His attorney should have admitted that and then tried to explain why they did not rise to the level of a serious crime. Instead the attorney tried to convince the jury that Ravi did not do anything wrong – he was merely trying to protect his expensive equipment that was in the dorm room. No one is gong to buy that.