The High Volume of Online Harassment

I. Robin Hood’s Legend Rings Loud in our Moral Ears

Five years ago, Mike Bithell released a simple game about personal identity and friendships. Expanding his scope from “Thomas Was Alone,” Bithell gives us new questions about social justice and law in “Volume.”  As protagonist Rob Locksley, a player navigates stealth-based challenges simulated by an artificial reality system called The Volume. He broadcasts his depictions of stealing from the homes and offices of powerful public officials (particularly one Guy Gisborne), who are corrupt and tyrannical.

What people often forget is that Robin Hood was, fundamentally, a criminal. We glorify him as an outlaw because he forcibly carved out social justice from authoritarian injustice. In some ways, he was the precursor to Thoreau’s vision of Civil Disobedience (though our evaluation of Robin Hood follows naturally from Thomas Aquinas’ definition of a law). We often find the moral justification of such acts in our conception of ends-based morality: any minor evil is justified if it is done in an attempt to stop a worse evil (and evil laws are undeserving of regard or obedience). But we aren’t comfortable with the idea of Robin Hood stealing from just anyone (especially if he doesn’t give that wealth to someone less poor than the victim of the theft).

In “Volume,” Locksley’s actions seem deliberately inclined to incite crime on a level that would raise a very close question for the extent of first amendment protections (if the game were set in the US, instead of futuristic England). Interestingly, it doesn’t seem that Locksley’s behavior is prohibited by the Computer Fraud and Abuse Act or the Stored Communications Act, (though more information about the technical details behind his operation might cover that: he seems to have stolen his blueprint information while employed, which might be comparable to the case “US v.  Sergey Aleynikov,” which was decided as a trade secret theft.) However, Locksley does announce personal information about public officials, which likely falls under 18 U.S.C. 119. Whether he has an “intent” to “incite the commission of a crime” would be a question of fact for the court.

“Volume” raises questions about online harassment and who is justified in attacking whom. The internet is often seen as a tool to “level the playing field” for business, the arts, social discourse, and other important social dimensions. It can also be a tool that makes it easy to attack any other human being, often without much risk of retribution. What is the difference between a level playing field and a frontier beyond the protective boundaries of society? Is a wild frontier an opportunity for freedom or an opportunity for predation? In the context of the current state of the internet, these questions are timely, to say the least.

II. Does Online Harassment only Occupy Digital Space, or Does it Fill a Real, Physical Volume?

Some citizens of the internet promote a panacea to cyberbullying:  leave the website, or turn off the computer. It’s so easy that Cavemen already did it! Exploration of this solution reveals that some harassment can be ignored, but some cannot. I have muted many strangers in online games over the years, and I have left more than a few chatroom and forum threads that made me needlessly unhappy. Sometimes, walking away works.  However, these are consistently not the kinds of situations that make headlines. Cyberbullying that leads to teen suicide is often vindictive and deliberate, including unwanted contact by bullies. One does not simply log-off from SWAT teams knocking in your door, or from the nonconsensual publication of intimate photographs. Some online harassment stays online— but very often, it bridges from virtually to reality.

When Rob Locksley is raided and arrested for his thinly-veiled anarchist broadcast, his defense is not “Well, if Gisborne doesn’t like me telling people how to rob his house, he should just not watch broadcast.” That is the equivalent of attempting a defense against defamation by asserting, “If the plaintiffs don’t like bad things about them in the newspaper, they should just not read the newspaper.” I don’t know if anyone ever tried using this defense, but I bet it has never worked in a US Federal Court.

III. Turning Down the Volume On the Discussion About Harassment

This week, organizers of SXSW Interactive announced they would cancel two panels on the subject of online harassment because they received harassment about it online. As event affiliates pulled their support in response to the cancellations, I have to wonder how thrilled the trolls must feel with their new found power.

Technology is always dangerous. Technology lets people do things. It lets more people do more things, more efficiently, more often, more easily. If people want to do good things, technology is great: more good things will get done. Despite Lincoln’s plea, people do not always listen to the better angels of their nature. Indeed, many online participants seem determined to adhere to the moral edict: “we must be enemies.” The internet can create and foster relationships, but it clearly has as much power to destroy discourse as facilitate it.

Should the promise of free speech protect those who want to silence the speech of others? If the question seems difficult in the abstract, it seems much simpler for us when we can narrow the question to a single case—one where we can easily identify the good guy and the bad guy.

IV. Hearing on a “Case By Case” Basis is Rarely the Case

When people use the phrase “case by case basis” they often mean to indicate a flexible structure of evaluation, in which a variety of factors may be considered and weighed. Despite the use of the term “case” in law, judicial systems do not aim for the kind of flexibility that this phrase often suggests.

Courts evaluate cases to determine whether a certain law applies to a certain set of facts. Unless there is something in that law which provides for some kind of flexibility, or the weighing of countervailing circumstances, there is no flexibility in the court’s finding. Nor is there meant to be. Most of the judiciary is invested in building consistency, predictability, and reliability in the law: the same case should always come to the same result. (Hence, the task of many attorneys is to argue which cases are similar or different.)  When an action is justified by the particulars of the circumstance, individuals often recognize those particulars and make a positive moral evaluation. However, the legal question is often about the larger structure in which that action is carried out, because the law is concerned about the application of that structure to many thousands of other persons and circumstances.

Rob Locksley might have some moral justification for his broadcast (e.g, Gisborne is evil and dangerous and cannot be stopped any other way). But these justifications arise from the particulars of the circumstance. The legal question is whether other people should be permitted to make similar broadcasts about other targets. Without some kind of clause in the relevant laws about “excusability” or “justifiability” (such as those found in homicide laws to permit self-defense, or to recognize extenuating circumstances), the law cannot abide a good use of a socially impermissible kind of act. It does not matter that “in this case, there was a moral reason to do something illegal,” because moral reasoning is deliberately kept distinct from legal findings, and a law needs a specific clause for exceptions.

V. How to Blow Out a Speaker: Too Loud for Too Long

I am increasingly concerned about the problems of online harassment. It is moderately concerning that internet “hate communities” exist (with settlements in Reddit, 4chan [their capital city], and Tumblr), but it’s a phenomenon that has been noted and described before. What is far more concerning is that these communities are mobilizing their hatred to affect the world. I don’t know if hate is winning right now, but I’m not altogether prepared to rule that out that possibility. I don’t know if hate and harassment will eventually destroy social media, or the internet entirely.

I do know that this volume of threat, violence, and malice is not sustainable. Very soon, governing bodies will have to decide whether to curtail speech in the name of preserving the common good. This is controversial enough, but the technical challenges of internet anonymity and instant broadcasting will make it even more difficult to craft and execute appropriate laws. However, I think this project is neither impossible nor dispensable.

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Reactions and “Buzz” from E3 Couldn’t Happen Without Trademarks

When Juliet famously mused “What’s in a name?” she meant to downplay the importance of names, contending that the thing which is named (say, “a rose,” or maybe a family name of “Montague”) persists beyond whatever we call it. The world of trademarks insists on the importance of names to help us understand the differences between roses in a flourishing garden. The current state of the video game industry illustrates this point well.

I didn’t do any dedicated E3 coverage this summer, but looking back, the entire conversation happens around trademarks. The video game industry has always made use of sequels and developing franchises, and one of the biggest reasons for this has to do with the philosophy behind trademarks.

I. Building a Brand…

Trademarks exist on the theory that the creator of a product, or provider of a service, has some consistency in their work. They might rely on the same materials or recipe, they might maintain a certain standard of quality, etc. Trademarks allow an owner to benefit from consistent quality. While trademark litigation is often an argument about preventing someone else from wrongfully benefiting from an owner’s legacy of quality, the norm is just the preservation of one’s own legacy.

In the world of video game developers and publishers, this legacy is reflected in the fan reactions. Why was there such elation over “Fallout 4”? Sure, the trailers looked visually appealing, and might have even hinted at a fun game—but many other games do that every year. Why is “Fallout 4” special? Because of everything it rests upon: Fallout 3, the Fallout franchise, Bethesda Game Studio’s demonstrated caliber of game production, ZeniMax’s proven management of product launches, game director Todd Howard’s numerous awards and consistent excellence in executing his game design philosophy.

The consumers in the game industry (“gamers,” one might call them) know many ways that a game can disappoint—but because of Bethesda’s history of developing and releasing great games, the consumers are steeled against the kind of doubt that would otherwise creep in to counter excitement over an E3 trailer.

II. Destroying a Brand…

In contrast, the games industry also shows how little excitement a tainted company can generate. The perineal whipping boy of the industry has been Electronic Arts for many years now. EA continues to be the foremost example of game industry failure because they (EA and any developer they ensare) seem sadly prone to incidents which only dig itself deeper into a pit of shame and universal contempt. After “Aliens: Colonial Marines,” EA will face increased difficulty in securing game pre-orders (or having consumers believe pre-release game footage trailers). After “SimCity,” EA will find it more difficult to have the kind of participation in a product launch that game studios often rely upon in their entire marketing campaign. But unlike Blizzard, who had their own launch fiasco with “Diablo3,” EA does not have many instances of excellent games and excellent player experiences in their recent history to restore consumer faith in their brand.

III. The Law of the Brand

Trademark law is sometimes a difficult thing to explain. Intellectual property law is necessarily a little bit abstract, but copyrights and patents protect a concrete thing (a book, a painting, a movie, a chemical process, a mechanical procedure, etc). Trademarks are really anchored in the “goodwill” that a company generates though its products and services. The vagueness behind explaining trademark law can lead some to think it is not important.

Trademarks are rooted in the abstract, unquantifiable difference between the excitement over a new Bethesda game and the bitterness over Konami decision to let go of Hideo Kajima. Economists and businesspeople find that their models work best when every factor in their equations and algorithms can be carefully determined.  However, they have long understood that brand loyalty and social popularity or prestige of a brand can influence the market in ways that are difficult to mathematically predict. That weird, unseen, abstract force that pushes the market in ways numbers fail to predict is both the effect of brands and the reason for trademark law.