Digital Abuse

JURI 5589 · Spring 2023

Wed 8:30–10:20 am · Cheeley Room

Office Hours: Wed 10:30–11:30 am

Digital abuse is on the rise. People are increasingly using networked technologies to engage in harassment, stalking, privacy invasions, and surveillance. The law will often adapt to deal with harmful technologies, but is it adapting quickly enough? Is law even the right tool to confront digital abuse? If it is, which laws work best and who should enforce them?

One of the pressing challenges of our time is deciding whether and how to regulate digital abuse. This seminar will consider responses to various harms enabled by networked technologies, exploring issues related to civil rights, consumer protection, cybercrime, free speech, privacy, and private self-governance. As we cover these topics, we’ll confront issues related to gender, race, class, sexuality, and intersectionality, all of which are crucial to understanding how our society shapes and is shaped by technology.

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Your legal education should be as affordable as possible, so I’ve posted all materials for free below and assigned no casebook. For written materials, please review the entire piece unless I parenthetically note a specific page range. I’ve also listed some supplementary materials. They’re truly optional, but they provide some perspective or background that I find interesting or helpful, and I hope they might also be useful if you’re looking for inspiration or guidance when working on your assignments. Finally, I can highly recommend EndTAB’s newsletter and blog and Without My Consent’s 50 State Project as supplementary resources throughout this seminar — they’re truly invaluable resources for victims of digital abuse and people working in this area.

Given that this course focuses extensively on many forms of abuse and violence, it feels redundant and unwieldy to provide individual content warnings for each one of our assigned materials. Instead, please be aware that all of these materials might disturb at least some of you and that, more generally, this seminar will constantly challenge us to confront painful topics in ways that I can’t always predict in advance. Of particular note, some materials include graphic descriptions of intimate-partner violence and gender-based abuse, and I want you to be in the right headspace when engaging with them. I’d encourage you to take breaks and walks during and after your class prep, and some of you might also wish to take advantage of UGA’s Health & Wellness resources occasionally throughout the semester. Please take care of yourselves.

1. Digital Abuse

January 11

In this introductory session, let’s think critically about how we might conceptualize digital abuse. Is it principally a legal concept? A sociological one? Should we even use an umbrella term to capture such diverse forms of conduct? Consider, in particular, which common features might justify such collective treatment. Pay close attention to who generally perpetrates digital abuse, who enables it, who benefits from it, and who suffers from it. Given these dynamics, what might it mean to think of digital abuse in terms of “cyber civil rights” or as “violence” or “gender-based” harm? Are these helpful constructs that enhance our understanding? Do they risk alienating people, limiting our responses, or misdirecting our attention? Finally, consider how we might expand our conception of “regulation” beyond law to include extralegal interventions that influence and constrain behavior. With this broadened lens, how and when might law complement, supplant, or obstruct regulation by other means?

Supplemental

2. Civil Law

January 18

Some victims of digital abuse will seek restraining orders under family law to make everything “just stop” and trigger further sanctions. Other victims might sue their abusers under tort or copyright law, seeking compensation, injunctions, or recognition of the harm they suffered. But when should civil liability kick in, and how effective will these strategies be in reality? Are civil claims likely to vindicate victims’ social standing, compensate their losses, or deter future abuse? Are existing laws up to the task or should legislatures fashion new causes of action? And has the time come to sacrifice the internet’s sacred cow—Section 230 of the Communications Decency Act—and amend or abolish the immunity it offers to tech companies whose services are used to perpetrate abuse?

Guest: Michelle Gonzalez, Cyber Civil Rights Initiative

Supplemental

3. Criminal Law

January 25

If digital abuse is as harmful as research reveals, we might think that criminal law should play a role in addressing it. Criminal punishment has long been how societies have expressed condemnation of serious wrongs, while also purporting to offer greater deterrence and prevention of antisocial behavior. The rise of digital abuse has seen prosecutors harness longstanding criminal laws to punish perpetrators, but it has also spurred proposals to expand federal and state criminal codes to reach abuse that currently falls beyond the law’s reach. As you analyze our materials, query whether criminalization is the best way to tackle tech-enabled harms that are often belittled. Even if criminal penalties might do some good, consider how might these efforts conflict with decarceration and abolition movements that have grown in public consciousness in recent years.

Guest: Tracy DeTomasi, Callisto

4. Antidiscrimination Law

February 1

Ample evidence shows that women, racial minorities, and sexual minorities face disproportionately high levels of online mistreatment. Antidiscrimination law has long sought to protect civil rights in the real world, but what can it do in cyberspace? Should we accept the premise of that question—that cyberspace is a sociologically and legally distinct “place”—and craft new legal regimes for online life? Or should we reject the distinction and simply apply our rules for school and workplace harassment to tech-facilitated abuse? Switching from theory to practice, ponder how these debates apply to the Trump administration’s amended Title IX regulations and assess whether the Biden administration should take a different approach.

Guest: Kristopher Stevens, UGA Equal Opportunity Office

Supplemental

5. Consumer Law

February 8

While civil claims and criminal prosecutions are common responses to wrongs, state and federal authorities have other means of enforcing the law. With broad statutory immunities limiting the claims that individuals may bring, administrative agencies and state attorneys general have occasionally intervened to tackle egregious forms of digital abuse. Sometimes they do so under the guise of protecting consumers from deceptive and unfair business practices; other times they use telecommunications law to counter harmful uses of otherwise-valuable technologies. Are we using these branches of law enough? Are they fit for this purpose? Think creatively about how existing regulations designed for phones and photos might adapt to curb abuses in the digital age.

Guest: Lindsey Song, Sanctuary for Families

Supplemental

6. Procedural Law

February 15

In the wake of abuse, the reality is that few victims speak out and even fewer seek legal recourse. But when they do, procedural law can quickly become their friend or foe. Procedure matters. As Congressman John Dingell was fond of saying, “I’ll let you write the substance, you let me write the procedure, and I’ll screw you every time.” Court rules can either shield victims or leave them vulnerable to further harms. What should be done to combat so-called “paper abuse” or “procedural stalking”? How far can protections for victims extend before they unfairly impinge on the rights of the accused? Think critically about how new technological affordances enabling abuse might affect foundational legal concepts: evidentiary rules, burdens of proof, fair notice, and due process.

Guest: Dr. Gilat Juli Bachar, Temple University Beasley School of Law

Supplemental

7. Technology

February 22

We’ll now pivot to extralegal regulation (though always beware of how law can enable or disable private ordering in this space). If technology is part of the problem, can it be part of the solution? When Lessig says that “code is law,” he reminds us that technological design can regulate our behavior in ways analogous to legal rules. But let’s dig deeper than this influential slogan. We tend to discuss technology in detached and abstract terms, losing sight of the role that people play in creating it and how they might constrain its misuse. And beyond the “who,” let’s assess the “how” and the “why.” Pay close attention to possible differences between how humans design carelessly or intentionally with respect to harms enabled by their creations. Consider also how technology can provide victims a lifeline, giving them tools to escape and recover from abuse.

Guest: Brenda Dvoskin, Harvard Law School

Supplemental

8. Markets

March 1

Markets constrain behavior in all sorts of ways, yet digital markets can present peculiar challenges. For one thing, many tech companies frame their services as “free.” For another, the tech industry routinely rebukes regulation as stifling innovation. And even if some industry insiders wish to rein in their employers, companies regularly claim that their responsibilities to shareholders stand in the way. Though there are kernels of truth in all three refrains, let’s interrogate them. How do existing laws buttress these assertions? How might governments tweak—or perhaps overhaul—the business models that sustain the status quo? And if lawmakers remain inert, what can shareholders, companies, employees, and the rest of us do to challenge the economic incentives enabling digital abuse?

Guest: Payton Iheme, Bumble

Supplemental

9. Norms

March 15

Efforts to tackle digital abuse through legal and technological regulation will inevitably fail if unsupported by complementary social norms. While law and technology can influence norms, we might expect too much from these regulatory tools if people generally misunderstand or trivialize abuse. But how can we shift customs and beliefs in enduring ways? Is it circular to rely on law’s “expressive” value to change people’s attitudes? Is there value to a law that’s rarely enforced? Assess the array of initiatives and organizations discussed in the materials, asking whether they’re likely to address the causes or the effects of digital abuse. Finally, consider some of the structural impediments to meaningful change in this area—sexism, racism, homophobia—and imagine how educators and activists might erode them.

Guest: Dr. Christina Proctor, University of Georgia College of Public Health

Supplemental

10. Speed Pitching: Red Team

March 22

Students in the Red Team will pitch their op-ed ideas to the class.

Each of you will have 2 minutes to give your pitch followed by around 7 minutes of questions, comments, and discussion involving everyone else.

11. Speed Pitching: Black Team

March 29

Students in the Black Team will pitch their op-ed ideas to the class.

Each of you will have 2 minutes to give your pitch followed by around 7 minutes of questions, comments, and discussion involving everyone else.

12. One-on-Ones & Teamwork

April 5

Students in the Red Team will each have 10-minute one-on-one meetings with Professor Kadri to discuss their op-eds.

When you’re not meeting with Professor Kadri, you’ll work with your teammates on your presentations for our final session.

13. One-on-Ones & Teamwork

April 12

Students in the Black Team will each have 10-minute one-on-one meetings with Professor Kadri to discuss their op-eds.

When you’re not meeting with Professor Kadri, you’ll work with your teammates on your presentations for our final session.

14. Team Presentations

April 19

The Red and Black Teams will give their group presentations. Each presentation should last 20 minutes (with each person in your team speaking for roughly equal time), followed by 20 minutes of discussion (with each person in the other team offering at least one question or comment). Slides and handouts are optional.

For syllabus inspiration, I’d like to thank Danielle Citron, Mary Anne Franks, Karen Levy, Emily Prifogle, and Ethan Zuckerman, all of whose curricula helped me when shaping my own. I’m also immensely grateful to Amanda Levendowski for her feedback on pedagogy and course curation.

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