Death by Internet? (Tyler Clementi’s suicide)

March 12, 2012

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.


Why the MegaUpload Arrests Bother Me

January 31, 2012

Last week a consortium of U.S. federal agencies, working with police forces from around the world, shut down a series of file sharing/file storage sites best known as MegaUpload. They also arrested the senior executives of the companies behind the sites — including the flamboyant apparent leader of the group Kim Dotcom — and seized various assets of the company and the individuals. MegaUpload and its senior executives are not particularly sympathetic characters. But the arrests bothered me. I did not initially know why.

Many sites have been shut down for offering illegal goods, whether it be counterfeit goods meant to look like the original (fake Rolex watches for example), or illegal copies of software, But this one felt different. So I decided to write a blog piece about it. While writing this piece, I figured it out.

There are people who use technology to steal. Whether it is bank account balances, credit card numbers, knock-off copies of famous brand products, or digital content, it is clearly stealing. The technology is just the means to an end. I have no problem with arresting these types of people.

Then there are people who try to push the limits of the law using current technology. Sometimes these efforts lead to new uses of the Internet. For example, in the early days of the Internet I remember that the very first commercial Internet spam came from a law firm. The law firm got blasted for what was at that time seen as an outrageous attempt to commercialize the Internet. Ah the good old days when there was only one spammer. Yet commercial email advertising has become a major part of the Internet experience.

I do not see people who push the limits as criminals. Some of them may be bad people, and they often get sued, and they often lose, and I am fine with that. But I would leave it to the civil courts to define what appropriate technology behavior is. I would not make it a criminal issue.

The concepts of file sharing and on-line file storage on the Internet are still fairly new, and the law around what is allowed and what is not is still in flux. Several early cases, particularly A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001) and MGM Studios, Inc. v. Grokster, Ltd. 545 U.S. 913 (2005), established that if the file sharing company encouraged people to share copyright protected files through its site, then the site itself was liable for contributing to the infringement.

The current area of uncertainty involves the 1998 Digital Millennium Copyright Act (DMCA). Under the DMCA, service providers are protected from copyright infringement liability if they follow certain procedures. When they are notified by copyright owners of infringing material on their site (called a take down notice), they must promptly take down the copyright infringing material.

So far, courts have held that service providers do not lose the protection of the DMCA simply because they are aware that their site is being used to store copyright infringing material. See Viacom International, Inc. v. YouTube, Inc., No. 07 Civ. 2103 (currently on appeal although likely to settle) where the court found:

“[I]f a service provider knows (from notice from the owner, or a “red flag”) of specific instances of infringement, the provider must promptly remove the infringing material. If not, the burden is on the owner to identify the infringement. General knowledge that infringement is “ubiquitous” does not impose a duty on the service provider to monitor or search its service for infringements.”

The heart of the government’s case against MegaUpload seems to be that the owners of MegaUpload were aware that its site was being used for the exchange of copyright infringing material. Case law suggests that this knowledge is not sufficient for civil liability. It is hard to imagine that it would then be sufficient for criminal liability.

The government then seems to admit that MegaUpload removed offending files when it received a DMCA takedown notice. But the government also seems to be saying that MegaUpload was slow to remove files and did not do a very good job. Again, this does not appear to constitute criminal liability.

I have already discussed the problem that the sheer size of today’s major file sharing and file storage sites makes it impossible for companies to be in 100% compliance with the DMCA. See Copyright Enforcement on the Internet – Where should we draw the line? Even Apple does not maintain 100% compliance.

MegaUpload made some effort to remove infringing materials after it received take down notices. MegaUpload is a huge site. MegaUpload itself claimed that it had 50 million daily visitors and traffic on its sites accounted for 4% of all Internet traffic. The site could not possibly maintain 100% compliance with the DMCA. Does that make the owners of the site civilly liable for copyright infringement? Does it make them criminals? Those are tough question and ones where I do not think there has been any case law yet.

It is important for technology innovation that we let people push and test the limits. One of the founders of Napster, Sean Parker, took what he learned from Napster and became one of the key people in developing Facebook. If Parker had been branded a criminal instead, I would not say that social media would not exist, but social media might have developed much more slowly than it has.

By attacking MegaUpload before the limits of the DMCA have been established, theU.S.government is likely to scare off companies and new products and services that would otherwise provide legitimate technological innovation in on-line data storage (cloud storage) and file transfer services. TheU.S.government should have waited until case law was settled on this issue before using its full force to arrest and detain the MegaUpload individuals and seize their assets all over the world.

The criminal indictment quotes from many emails that suggest that the individuals who were arrested did participate in uploading some individual copyright infringing files to their own sites. Although these charges are minor, they may be the strongest part of the government’s case.

Even though the government’s case appears weak overall (and I say appears because we really do not know all the facts yet), I predict that the U.S. government will attempt to save face by putting so much legal pressure on MegaUpload that the executives will be forced to plead guilty to some minor charges and to forfeit their sites, seized property and money.


Well Written Website Privacy Policy May Backfire

January 24, 2012

I know that I should be writing more short blog entries rather than just a few long blog entries. But as you can see, I have trouble keeping my entries short. There is so much to say about any topic. In this entry I will try to keep it short. Here goes.

I recently came across a website privacy policy that was well written and easy to understand. In this case, that may not have been a good idea.

I read an email post where someone said that he had read about the Nextdoor website in the news. He was excited to give it a try in his neighborhood. Here is how the website describes itself:

“When neighbors start talking, good things happen. Nextdoor is the private social network for your neighborhood. It’s the easiest way for you and your neighbors—and only you and your neighbors—to talk online and make all of your lives better in the real world. And it’s free.”

He added that he glanced at the Privacy Policy, but didn’t see anything “out of the ordinary” to his untrained eye. When he invited some of his neighbors to join, a storm of email erupted around the Privacy Policy. Neighbors feared the sale of all of their personal information and the storage of their data forever and responded that they “would never sign up on a site such as this!”

I was curious about his comment so I read the entire Nextdoor privacy policy. (I would think that only a lawyer would actually do that, but apparently people actually do read these things.) It is well written and is in plain English, rather than in difficult to understand legal jargon. I like that. I try to draft my agreements that way as well. But that may be the problem. Most people do not realize just how little privacy they have. Because the agreement is very clear, someone who reads the agreement will better understand how their data will get stored and used. It is not that the Nextdoor site will use their data any differently than other sites, it is that Nextdoor is more honest and more open and clear about how the data will be used. Even when a website does not share information, it often stores that information for a long time and uses that information on its website in various ways. The Nextdoor privacy policy explains all of this quite well. I suspect that their data retention and use policies are not unusual. What is unusual is how open and honest they are about it. As a result, people who read the privacy policy may be more concerned about this particular site than they should be. That is a strange case where being open and honest about what you do may not be the best policy.

As a side note, one of my themes in this blog is how little privacy we now have. Here is a good example. Even without joining the Nextdoor site, much of your neighborhood information is already quite public. Where I live, in King County Washington, if you want to know who owns the house across the street from you and how much they paid for it, all you have to do is look up the address on the King County Assessors office website. You can find a history of sales including the parties and the price paid, tax value assessments by year, pictures of the house, floor plans, statistical details about the house, and lots of other data. All of that is already public information.

I am not sure telling your neighbors that their privacy is already gone will help convince them to join the Nextdoor website. But it is largely true.

Update May, 2013:

Instagram had a similar reaction from its customers when it tried to simplify its terms of use contract. The newer terms were easier to understand and protected the customer more, but because the customer could now understand the contract, many of them complained. Instagram ended up reinstating its older terms of use contract. See Why
the Instagram debacle just taught every tech company to be shadier than ever
.

 

 


Copyright Enforcement on the Internet – Where should we draw the line?

October 26, 2011

In this week’s news a woman is suing Apple for copyright infringement because two of the iPhone apps it sells are using pictures that belong to her. She complained to Apple but they did not remove the pictures. Details here.

.When should we hold a company liable for contributing to copyright infringement by others on its web site? I am not talking about direct infringement, when the company itself uses someone’s copyright protected work without their permission. That one is easy. They should be liable. But what if somewhere on the company’s web site someone else has posted material that violates someone’s copyright? In the early days of the Internet we still held the company liable, although we usually gave them a chance to fix the problem. They were not liable unless they were notified of the infringement and we gave them an opportunity to correct it, and they still failed to fix the problem. (See in particular the Digital Millennium Copyright Act (DMCA)).

These days web sites are so large, and the databases that drive the web sites are even larger. We have a company like Google that is trying to put every book ever written on its web site. Now we are starting to see cloud storage of music, and important files, and perhaps eventually cloud storage of everything. Has the Internet become too big to expect individual companies to be able to police their own web sites?

I was talking to an attorney from Facebook recently. I am paraphrasing what he said. If Facebook had to search its own web site for all the instances of a particular item, it would take months, or perhaps even years, even at computer speeds. Their database is that large.

In the case in the news, the woman used an iPhone app to take pictures which she then uploaded and posted on a picture sharing web site with the appropriate copyright notice. The iPhone app she had used copied her pictures, after removing the copyright notice, and posted them on the Apple App store web site to help market its app. She claims to have notified Apple at least six times prior to filing the law suit. I am not privy to the actual details of the case, but I find it hard to believe that Apple would intentionally ignore her complaints. I suspect they just have too much ‘stuff’ out there, and can no longer effectively police it all. According to Wikipedia, as of May 2011 the Apple App store had over 500,000 third-party apps officially available. That number is growing all the time.

So what is the answer? Do we let Apple get away with contributing to copyright infringement? Do we require that companies with large web sites/databases develop new techniques to police their sites? Or do we require companies to keep their web sites/databases small enough that they can effectively police them with today’s technology? I suspect that the answer will come from new technology, not from new laws. These companies will get better at policing their sites, and we as a society will get more tolerant when they do not do so as effectively as some people would like.

I would have advised this woman that once she posts something on the Internet, her ownership and control is effectively gone, no matter how aggressively she tries to police its use. That may not be fair. That may not be legal. But that is the way it is.


Our Vanishing Right of Privacy

September 14, 2010

An issue came up recently where a man was upset that people in his condominium complex were using the pool and Jacuzzi late at night. He wanted to take pictures of their activities to document their behavior in his complaint to the condo board. Can he do that?

The law recognizes a limited right to prevent other individuals from invading your privacy. There is a legal doctrine that there is no right of privacy for activities that are conducting in “open view.” If this person can see the activity from a window of his condo with an ordinary camera, I do not think there is any reasonable expectation of privacy. What if he can not see them from his window, but he can walk right up to them in a common area open to all condo owners. Is that still an “open view”? Does it matter what they are doing? Is there a difference between a group of friends just partying, and a couple making love? I would not think so.

My favorite case on this subject comes from the Woodstock movie. For those of us old enough to remember, in the movie about the original Woodstock festival there is a scene where a man and a woman are running through a field of tall grass, peeling off all of their clothes, and falling down together presumably to make love. One of the stage cameras had been turned around and the operator used his high powered zoom to capture this scene which actually took place behind and far from the stage in a field where no one else was around.

Well it turns out that a man had gone to the Woodstock festival but his wife could not make it. He came home and raved to her about how wonderful the festival was. When the movie about the festival came out he insisted that they go see it together. There they were sitting in the movie theater watching the movie when up popped the image of him running through the field with some other young woman. The wife divorced him. He sued the movie producers. The court held that he had no expectation of privacy. There may have been some anti-hippie bias in that ruling.

Back to our example with the condo person. What if he had to use special equipment, a high powered zoom lens or some special night vision lens to take his pictures. Would that matter? The answer is not clear.

In a more recent case, actress Jennifer Aniston was sunbathing topless in her own backyard surrounded by a fence. A photographer standing on the public sidewalk found that if he stood  in one particular spot, using a high powered zoom lens, he was able to get a picture of her which he intended to sell to some sleazy magazine. She threatened to sue. I believe he backed down and withdrew the picture. But it would have made for an interesting case.

Nowadays, satellite images are readily available on any personal computer. For example, many aerial details can be seen by using Google Maps. Does that change our reasonable expectation of privacy? An environmental group took a series of aerial photographs of the California coast, including the yard and house belonging to Barbra Streisand. She had chosen to live in a house set far back from the highway to maintain her privacy. She sued for invasion of privacy (and other claims) and lost. That type of photography is now readily available in Google Maps. Does that mean that we no longer have any right to privacy in our backyards?

That is why I love this area of law. There are no clear rules. And with advances in technology, the law is constantly changing. One of the effects is that the amount of our lives that is protected by the right of privacy is constantly shrinking. What do you think?


Hello world!

September 10, 2010

Welcome to my blog, Marshall2Law. In this blog I will be commenting on issues involving law, business, the Internet, society, and social responsibility.  My primary target audience is socially conscious business entrepreneurs. Entries will range from business and legal tips to brief insights into major social issues. I welcome comments, suggestions and an open discussion. You can also find my blog on facebook at Law Offices of Gary Marshall.