The Internet Grows Up?
Danielle Citron’s Hate Crimes in Cyberspace1 is one of the most important publications to date in the emerging fields of privacy and cyberlaw. In her thoughtful and insightful book, Citron explains the uneven playing field and frequently shocking acts of abuse that women face online, and demonstrates practical steps that we can take to remedy the problem of online hate through law, education, and the development of better, more inclusive norms. Other contributors to this Symposium have examined these contributions in great detail, pointing out important nuances of Citron’s argument, urging her in at least one case to be even bolder in her prescriptions.2 I agree with much of what has been said, but as the Symposium draws to a close, would like to take a slightly different tack. I’d like to take a step back from the problems of revenge porn and cyber-harassment, or the extent to which Citron’s remedies comport with what the First Amendment does (or should) provide. When we do that, we see Citron’s efforts (which are far broader than merely this wonderful book) as part of the maturation of digital life. Specifically, Citron’s work is a small but essential part of the larger project of translating our hard-won civil and political rights into the digital sphere—the project, if you will, of helping the Internet grow up.
The Internet has been part of the popular conversation for just about twenty years. Before about 1995, the Internet was essentially the domain of academics and a few college students lucky or nerdy enough to obtain access to elementary technologies like email accounts, text-based online multiplayer “Multi-User Dungeons” or the USENET discussion groups. More populist connectivity was available in the “walled gardens” of online services like America Online, Prodigy, and Compuserve, many of which charged exorbitant hourly fees. AOL, for example, charged a $3 hourly fee until 1996.3 Although the Internet was available to everyone, its membership skewed in practice as young and male.4 But to the early devotees of the Internet, a digital society—one in which computing was everywhere and everything was affected by computing—was inevitable.
Writing at that time, and looking forward to that digital future, Lawrence Lessig famously predicted that one of the most difficult interpretive questions in regulating technological change would be the process of what he called “translation.”5 Making an analogy to the translation of old constitutional norms to modern contexts, Lessig argued that one of the great challenges for regulation in a digital age would be to ensure that our cherished values were “translated” into digital forms, so that we might build a digital society in which our values were preserved rather than being wiped away.6
Almost twenty years on, we are living in a digital society of the kind predicted by the early users of the Internet. Today, the Internet is a general-purpose technology, almost as ubiquitous in the developed world as electricity and running water. We increasingly live our daily lives in ways that are mediated by it, from smartphones running GPS software and search engines to televisions and sounds systems pulling content from the cloud. The old distinction between “online” and “offline” is fading away as computing becomes omnipresent and seemingly invisible.7
But just because technology has become invisible or taken for granted, it doesn’t mean it isn’t there. This is particularly the case when the technology shapes us in ways we might not immediately appreciate.8 It is in this context that both Lessig’s prediction about translation and Citron’s excellent book are most essential. If the popular Internet is only about twenty years old, in human terms, it would be in late adolescence, old enough to vote in the United States, but not quite old enough to buy beer or rent a car. It is capable, but it is not yet fully mature. And its future self is up for grabs.
It is of course possible to take analogies like this too far, but it is undeniable that the Internet is both a human creation and a relatively immature one. In two short decades, it has revolutionized our society, empowering and disrupting people and companies, and leaving no small amount of chaos in its wake. Like all human creations, the Internet has its own politics, and politics are complex. It should be no surprise that there are winners and losers in an Internet-mediated society. The great contribution of Hate Crimes in Cyberspace is that it shows us that the identity of those winners and losers is frequently gendered, and that the digital society has brought many existing problems of inequality and harassment into the digital, networked sphere. Citron’s work is best viewed in the spirit of Lessig’s translational impulse, revealing that if we care about our hard won (and still incompletely gained) norm of gender equality, we must make sure that it is translated into our digital society. Citron shows us the harms of cyber-harassment and non-consensual pornography, shows us how existing attempts to translate our legal and ethical norms of equality are incomplete, and shows us one possible way forward.
Beyond the narrow questions of whether we should amend Section 230, or whether and to what extent online intermediaries should take moral behavior for the harassment that happens on their platforms, Citron shows us that there is nothing magical about the Internet or the much-lauded “innovation” that has made it possible. In fact, as the Internet as a technology recedes from view, as our society is increasingly built on a blurry mix of digital and analog technologies, we are forced to ask ourselves what kind of a society we are building. Technological innovation is not magical, nor is it contained to the mythic realm of “cyberspace,” which is no more or less profound than what it is at bottom—people using technology, sometimes for good, sometimes for evil, and most of the time for something in between. But our values do matter, and the critical project for law and regulation for the next twenty years will be to ensure that our cherished values are faithfully translated into digitally-mediated formats. These values should include equality for certain, but also freedom of speech and privacy, among many others. And in another twenty years, when we assess the social creation of humans and technology that we have built, this author at least hopes that we will look back at the publication of Hate Crimes in Cyberspace as an important milestone in the story of how the Internet grew up.
* Professor of Law, Washington University School of Law.
1 Danielle Keats Citron, Hate Crimes in Cyberspace (2014).
2 William McGeveran, Online Harassment and Intermediary Immunity, B.U. L. Rev. Annex (Oct. 30, 2015), http://www.bu.edu/bulawreview/bulronline/mcgeveran-online-harassment-and-intermediary-immunity/.
3 What Did Online Access Cost (Per Hour) in 1995?, Forevergeek (Apr. 16, 2007), http://www.forevergeek.com/2007/04/what_did_online_access_cost_per_hour_in_1995/.
4 Hiroshi Ono & Madeline Zavodny, Gender and the Internet, 84 Soc. Sci. Q. 111 (2003).
5 Lawrence Lessig, Code and Other Laws of Cyberspace 109 (2d ed. 1999).
7 Neil M. Richards & Jonathan H. King, Big Data Ethics, 49 Wake Forest L. Rev. 383, 400-05 (2014).
8 Nicholas Carr, The Glass Cage: How Our Computers Are Changing Us (2014).