Allowing our political discourse to be swallowed up by the internet and spit back out as chewed-up, attention-grabbing “content” has obviously not been good for the American psyche. Unfortunately, in the wake of the 2024 election, the Democratic Party seems to have decided that there’s no path forward except plunging headfirst into the online cesspool.

The DNC recently poured millions into a project called Speaking with American Men: A Strategic Plan, billed as an effort to “study the syntax, language, and content that gains attention and virality” in male-dominated online spaces. Meanwhile, a startlingly annoying crop of Democratic influencers emerged, teenage boys with resistance-lib politics who mimic online MAGA aesthetics to produce truly terrible videos like “Clueless MAGA Bro Gets SHUT DOWN During Debate.”

Politicians, too, are getting in on the fun. California Governor Gavin Newsom—apparently convinced that the key to being a successful governor is to fill the “liberal Joe Rogan” void—launched a podcast. His debut episode featured the late Charlie Kirk and was so obsequious that Kirk criticized him for being “overly effusive.” Later, after an amicable debate with Steve Bannon, Newsom switched to mocking Donald Trump in posts that mimic the president’s disjointed, braggadocious style. 

As demeaning and debasing as all this is, maybe it’s also part of a necessary correction. The left’s approach in recent election cycles—engaging in digital shaming pile-ons and strong-arming social media companies into moderating speech on their platforms—mostly backfired by convincing millions of Americans that liberals were censorious scolds. But if that strategy proved counterproductive, this frantic attempt to match the online MAGA world’s tactics in an attentional race to the bottom might be just as doomed to fail. 

I’d like to suggest a different approach, one that is already gathering adherents among liberal strategists, grassroots activists, and legal scholars. Instead of accepting the existing digital political battlefield as inevitable, Democrats should challenge it as the root cause of our dysfunctional politics, and vow to be the party that cleans it up.

The core of the issue is that we have a digital economy built on a business model of trapping people in the virtual world for as long as possible. D. Graham Burnett, a historian of science at Princeton University, calls it “human fracking,” where instead of oil, companies are extracting our attention. Should we really be surprised, then, that at the same time the internet is subsuming the real world, what’s emerging around the globe is a convulsive, reactionary politics? Addressing this crisis—rather than fueling it—should be central to the Democrats’ strategy in the digital age. 

There are abundant signs that people want something different. For example, a 2020 Pew survey found that about two-thirds of American adults believe social media is negatively affecting the country’s direction; only one in 10 think it’s helping. Perhaps the most compelling evidence of social media users’ simmering discontent comes from a study conducted by economists at the University of Chicago. Participants were asked how much money they would need to be paid to quit social media. The average answer was around $50. But the participants’ attitudes changed dramatically if asked to imagine that everyone else had already quit. In that case, they would not only give up their accounts—they’d be willing to pay to do so. That exodus may slowly be under way—time spent on social media peaked in 2022 and has slightly fallen since, with young people representing the largest decrease.

Thankfully, there are more options in the playbook than to surrender to the internet or simply log off. As the political speech scholar Susan Benesch put it to me, the question Democrats need to answer is this: “Do you want to ape the game the other side is already playing in an environment that is bad for people, or do you want to change the game?” Democrats don’t need to abandon the digital sphere to challenge its terms; in fact, a few of its younger rising stars have shown that liberal messages can gain purchase. But to answer that hunger for reform, while also creating a level playing field for sane, fact-based discourse, Democrats must make a serious political commitment to reforming these technologies that govern our lives and yet remain subject to no meaningful democratic oversight. 

The movement to make online life healthier is already well underway. Currently leading the charge is a growing coalition of parents, scholars, and activists focused on protecting children from the most harmful aspects of the digital world. This movement has also launched a state-by-state campaign to claw back some modicum of digital privacy, with state legislators finally taking steps to curb the relentless surveillance and manipulation of individuals by tech platforms. 

Nearly every expert I spoke with agreed that these crusades offer Democrats a clear strategic opportunity: embrace these efforts, raise the profile of their issues, and campaign on federal legislation that embraces these movements. If the goal is a more dramatic restructuring of digital life, though, these measures must be seen as just the opening moves. The harms that have galvanized these reform movements are symptoms of the broader underlying sickness plaguing the online world.

Right now, MAGA channels much of the anger toward modern life by offering a fantasy of a lost, mythic past. But if Democrats were willing to engage with this dissatisfaction honestly, they could expose the central lie of the movement: Despite all its posturing, MAGA wants nothing more than for you to live your life on a screen. 

Unlike the current race toward the most optimized attentional capture possible—which is also disastrous for our politics by favoring the loudest, most outrageous voices—the lane of reform belongs to Democrats alone. With the right’s online dominance, the political conversions of platform owners like Elon Musk and Mark Zuckerberg, and Republican leaders like Donald Trump and J. D. Vance, pathologically online, the GOP is an unlikely reformer. Rather than join the stampede of human frackers, Democrats could be the one force fighting to protect your mind from being mined.

The most obvious place where the online world has impoverished the real one is childhood. Jonathan Haidt’s book The Anxious Generation documents the teen mental health epidemic that began in the early 2010s, arguing that the “great rewiring of childhood”—the shift from a play-based to a phone-based upbringing—fueled the crisis. Haidt outlines multiple causal pathways linking social media use to mental health harms: social deprivation, sleep deprivation, attention fragmentation, and addiction. To safeguard future generations, he proposes four societal norms: no smartphones before high school, no social media before age 16, phone-free schools, and a renewed emphasis on real-world independence and play. 

The book has achieved remarkable success, generating widespread media attention and sparking an eponymous movement attempting to enshrine Haidt’s norms into law. The most effective policy efforts to date have centered on making schools phone-free, with 26 states enacting legislation or executive orders to restrict or ban student cell phone use during the school day. Beyond that, some states have adopted more aggressive measures, banning social media entirely for children under 14 or implementing age verification laws that require parental consent for minors. Other states have taken aim at platform design itself, passing “Kids Codes” that turn on the highest privacy settings as the default for children or prohibiting personalized, algorithmically driven content feeds. Nearly all of these laws have faced legal challenges from NetChoice, the leading tech industry group, which has succeeded in securing injunctions in many cases as the court battles continue. 

Using the judicial system cuts both ways, though. Over the past couple of years, state attorneys general across the country have launched waves of litigation against social media platforms. The immediate outcome of these lawsuits is the exposure of troubling internal communications that reveal how these companies disregard the harms their platforms cause. For example, Kentucky’s lawsuit against TikTok alleges that the company deliberately concealed the app’s addictive design. Internal documents revealed that TikTok identified the habit-forming threshold—260 videos, or about 35 minutes—and linked compulsive use to negative mental health effects. Despite this, it took no meaningful action. A parental control feature, promoted as a safeguard with 60-minute time limits for kids, reduced usage by only 1.5 minutes on average. “Our goal is not to reduce time spent,” one project manager candidly admitted. 

In addition to revealing the true motivations behind platform decisions, these lawsuits could drive real accountability if legislation stalls. Perhaps most significant in this regard is the nearly nationwide lawsuit against Meta for knowingly harming children’s mental health and thus violating consumer protection laws, building on the documents leaked by the whistleblower Frances Haugen in 2021. “Nobody thought there could be a 44-state lawsuit against social media,” Haugen told me. “And now we have a lawsuit comparable to the tobacco lawsuit.” (The lawsuit involved 41 states and Washington, D.C.)

The other reform effort that has gained real traction is the fight for digital privacy. In recent years, data privacy advocates have slowly begun to restrict the surveillance and profiling rampant in the online world. Today, social media platforms and other tech giants engage in nearly limitless online surveillance in order to create a vast informational asymmetry between the internet platforms and their users. If corporations know everything about you—your communications, preferences, habits—it is much easier for them to manipulate you into acting in their best interest. Last year, U.S. internet users had their information shared 107 trillion times—an average of 747 exposures per person, per day.

California is headquarters to most of the companies who pioneered this business model, which is why it was the first state to wise up and pass a comprehensive consumer data privacy law in 2018. To this day, the California Consumer Privacy Act (CCPA) remains the nation’s strongest privacy regulation. The CCPA was built around the concept of “data minimization,” which means that companies should only collect and use personal information if it is for a purpose that consumers would reasonably expect. For example, a person using a ride-share app would expect the app to use their location to allow the driver to pick them up and drop them off. The user would not reasonably expect that the app continuously tracks their location well after the ride, learns that they visited a pawn shop, and then sells that information to Google, which in turn might start showing that individual ads for predatory loans.

The effort caught Silicon Valley by surprise and came as a blow to the online platforms who have no interest in scaling back their immense data collection practices. Since then, industry lobbyists and privacy advocates have clashed in state legislatures over how to shape privacy laws. Unlike California’s approach, industry-backed bills typically allow companies to collect personal data without meaningful limits, so long as they disclose it somewhere in a privacy policy. Consumers who want their data must submit individual requests to every entity that holds it (this is in the hundreds or thousands). These laws also deny individuals the right to take companies to court. The tech industry has brought enormous resources to the fight: In 2021 and 2022 alone, 445 lobbyists and firms representing tech giants were active in the 31 states considering privacy legislation. Of the 19 states that have passed privacy laws, the vast majority have adopted industry-backed models. 

But in one of the most high-profile privacy battles to date, the tech industry suffered its first major defeat since California. Maryland state Senator Sara Love, who introduced the privacy bill in 2024 while still in the House of Delegates, said she had never experienced anything like it. “It was exhausting. I have never seen that level of lobbying. Nor had a lot of other legislators,” said Love, who has served in Maryland’s state government since 2019. “The first year lobbyists were telling legislators, ‘You’re not going to get your Starbucks points anymore,’ ” she recalled with a chuckle. “The biggest bunch of malarkey. But they [other state legislators] didn’t understand the technicalities of the bill.” 

This time around Love succeeded in passing the strongest privacy regulation since the CCPA, and now a handful of other states are working on similar laws modeled after California’s or Maryland’s approach. The biggest challenge is in convincing lawmakers that defying Big Tech’s warnings won’t bring the sky crashing down. “Knowing that it can be done helps,” Love reasoned. “The more of us that get these good strong bills, the more that will follow.” 

In The Sirens’ Call, Chris Hayes compares the development of today’s attention economy to the Industrial Revolution. “Attention now exists as a commodity,” he writes, “in the same way labor did in the early years of industrial capitalism … a social system had been erected to coercively extract something from people that had previously, in a deep sense, been theirs.” In fact, Hayes thinks the digital revolution may be even more disruptive because, “unlike land, coal, or capital, which exist outside of us, the chief resource of this age is embedded in our psyches. Extracting it requires cracking into our minds.” 

Much like in the early days of the Industrial Revolution, people today face a collective action problem: Those whose data is being mined have few institutions capable of pushing back against systemic abuse. Just as labor unions and worker protections emerged to confront the excesses of industrial capitalism, we now need digital equivalents to defend users in the age of surveillance capitalism. Rights like the ability to delete your data, to move it between platforms, and to hold companies accountable for their abuse of it should be the starting point. 

One promising step in this direction is the Digital Choices Act (DCA), a law passed in Utah this year. Doug Fiefia, the sponsor of the legislation, was inspired to act after growing disillusioned with the data practices he witnessed during his time at Google Ads. After joining Utah’s state legislature, he proposed a simple idea: Make it possible for users to take their data from one platform to another or delete it from any platform they choose. This kind of data portability could eventually allow users to organize and demand better treatment, backed by the leverage to deprive tech platforms of the data they so desperately need. “What we’re doing is taking back what we never should have given to this industry in the first place: control of our data,” Fiefia explained. “That should always have been ours.” Since Utah passed the DCA, the first legislation of its kind, six other states have reached out to Fiefia to explore introducing similar bills. 

Meanwhile, a group of legal scholars has been pushing for a promising reform called “friction-in-design” regulation. These reformers argue that the tech industry’s obsession with seamless efficiency has stripped users of meaningful choice and enabled what they call the “technosocial engineering of humans.” They propose deliberately designing pauses—like speed bumps in neighborhoods or warning labels on products—to help users reflect, exercise autonomy, and protect their well-being online. Previous attempts to regulate social media have often floundered because they focused on specific types of speech or particular actors, inviting partisan backlash. Friction-in-design offers a politically neutral alternative, one that addresses the underlying dynamics of online harm without censoring content or favoring one viewpoint over another. Just as speed bumps make roads safer without restricting where people can drive, digital friction can reduce harmful online behavior without infringing on free speech. 

There are a vast array of friction-in-design regulations that could curb harmful platform dynamics. Addictive features like infinite scroll (which continuously loads new content so users never reach a natural stopping point) and autoplay (which automatically plays the next video without user input) could be banned outright. Platforms could be forced into imposing automatic time-outs after extended continuous use of the platform. They could also be required to add a short delay after a user posts, likes, or replies to someone else. Content that begins to go viral could be deliberately slowed as it passes certain thresholds. High-reach accounts could be regulated like broadcasters, with posts that reach a certain audience threshold treated as public broadcasts. In the realm of privacy, courts could refuse to enforce automatic contracts and instead require evidence of actual deliberation by consumers. 

When tech platforms have voluntarily adopted some of these measures, they’ve worked. After a wave of gruesome lynchings in India in 2017 and 2018 that were sparked by viral false rumors of child kidnappings, WhatsApp restricted the forwarding of messages that had already been shared five or more times, allowing them to be sent to only one user or group at a time. That minor tweak resulted in the spread of “highly forwarded” messages declining by 70 percent. Of course, platforms are unlikely to adopt these measures on their own, which is why government action is necessary. 

The situation requires many more reforms than the ones that have been outlined here. Aggressive antitrust enforcement to break up the monopolization of the digital economy is crucial. Today’s internet giants have achieved a level of vertical and horizontal integration with few parallels in American history, in large part because previous generations of lawmakers worked hard to prevent it. Even at the height of its power, Ma Bell couldn’t listen to your telephone conversations, learn that you were thinking of buying a house, and then sell that information to banks, which could then cold-call you at dinner with loan offers. Government today could largely eliminate this “surveillance” business model by enforcing existing law—breaking up tech companies’ control of competing social media platforms (like Meta’s ownership of both Facebook and Instagram) and requiring that they follow the same “common carrier” rules that governed previous communications technologies. This would curb a great deal, though not all, of their most exploitative behavior. 

Modifying Section 230, which allows platforms to hide behind total legal immunity even as they algorithmically make editorial decisions, is also important. Beyond that, greater transparency around how algorithms function, and stronger oversight to ensure that they serve the public interest rather than manipulate it, will be key to creating a healthier digital ecosystem. Most major platforms’ algorithms promote the content that gets the most user engagement, which gives undue weight to outrage and misinformation. But those incentives don’t have to be written in stone. Scholars and some smaller platforms are testing out different algorithmic systems, such as “bridging-based ranking,” which sorts internet content using metrics that promote constructive disagreement—such as whether users with opposing views engage with it positively. Documents from Haugen, the Facebook whistle-blower, reveal that the company tested bridging-based ranking in its comments sections, and found that it promoted posts that were “much less likely” to be reported for bullying, hate speech, or violence. But they decided not to implement it widely.

Of course, none of this means Democrats can’t or shouldn’t engage with social media. Politicians like Alexandria Ocasio-Cortez and Zohran Mamdani have shown that it’s possible to use social media platforms effectively in service of progressive causes. But they are the exception. The structure of the current internet ecosystem overwhelmingly favors reactionary, conspiratorial content. Democratic engagement should be grounded not in mimicking that logic, but in naming the alienation the internet produces and offering a more humane alternative. 

The way we live online is not good for us. The average American now checks their phone 205 times a day, or once every five waking minutes. The average young person today spends 5.5 hours staring at screens, putting them on pace to spend 25 years of their life online. Rates of depression, anxiety, and behavioral addictions have soared; rates of friendship and romantic relationships have plummeted. 

Meanwhile, those in the tech industry want to double down on all of it. Marc Andreessen, cofounder of the venture capital firm Andreessen Horowitz, is often called Silicon Valley’s “philosopher-king.” He argues that the goal of improving material conditions on Earth is misguided, the folly of those who cannot see past their own “reality privilege”:

A small percent of people live in a real-world environment that is rich, even overflowing, with glorious substances, beautiful settings, plentiful stimulation, and many fascinating people to talk to, and to work with, and to date … Everyone else, the vast majority of humanity, lacks Reality Privilege—their online world is, or will be, immeasurably richer and more fulfilling than most of the physical and social environment around them in the quote-unquote real world … Reality has had 5,000 years to get good, and is clearly still woefully lacking for most people; I don’t think we should wait another 5,000 years to see if it eventually closes the gap. We should build—and we are building—online worlds that make life and work and love wonderful for everyone, no matter what level of reality deprivation they find themselves in.

It’s hard to imagine a more noxious ideology—or less likable messengers—to run against. To think that the answers to our most existential problems could be found by building ever more seductive online worlds to disappear into is essentially a surrender of faith in the human project. No wonder figures like Peter Thiel hesitate when asked if humanity should even survive. Let MAGA have this bleak vision. And let them own the horror that is our online world. 

Democrats, meanwhile, should start listening to other voices. Zadie Smith, more than a decade ago, wrote that the technology shaping our lives is unworthy of us. We are more interesting than it. We deserve better. It’s time to build something different.

The post Draining the Online Swamp appeared first on Washington Monthly.

The invocation of privacy is often a smokescreen for privacy-annihilating activities. Tech giants exploit consumers’ online privacy and civil rights, harvesting our intimate details for profit and imperiling our rights. The only privacy Facebook, Amazon, Google, and the like are interested in safeguarding is their own, pushing back on regulators under the guise of protecting “trade secrets.” 

For certain powerful men, too, privacy means keeping their misdeeds under wraps. The disgraced film mogul Harvey Weinstein benefited from what The New York Times has called a “protection racket,” or a “network of aggressive public relations flacks and lawyers who guard the secrets of those who employ them and keep their misdeeds out of public view.” Matt Lauer, who was fired from NBC News in 2017, had a button under his desk that conveniently prevented interruption while he had inappropriate relations with female employees. Women who fight back against assaulters often end up with an out-of-court settlement and a confidentiality agreement: a battening down of secrecy. All this cloak-and-dagger business gives privacy a bad rap—it’s a debased currency that licenses men to oppress women, monopolies to oppress consumers, and powerful people to guard their profits at the expense of everyone else. 

It didn’t have to be this way. The legal concept of the right to privacy has its origin in an 1890 Harvard Law Review article by Louis Brandeis and Samuel Warren, in which the authors called for the legal system to protect the “right to be let alone” in the “sacred precincts of private and domestic life.” The article relied on a psychological insight: If information pertaining to an individual’s private life is made public, it can damage the person’s “estimate of himself.” As Brandeis and Warren wrote, individuals and society are harmed when “numerous mechanical devices … make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’ ” (The definition of privacy was personal for Warren, whose brother Ned was openly gay. Journalists have speculated that his authorship of the article was in part motivated by a desire to protect his family from the sensationalism of the penny press.) Scholars have called the article “the foundation of American privacy law” and “one of the most famous law review articles ever written.” It gave women in the early 20th century the ability to use tort law to object to their images being used in films and ads without their consent.

How privacy torts morphed from a potentially liberatory tool into an overly narrow set of claims typically used in defense of the powerful—and how we might turn the tide—is part of the story that Danielle Keats Citron, a legal scholar and vice president of the Cyber Civil Rights Initiative, tells in her authoritative new book, The Fight for Privacy. Citron’s work arrives when conversations about digital privacy have reached a new pitch. According to the Pew Research Center, a majority of Americans think that the risks of personal data collection outweigh the benefits, and they support more regulation of what companies can do with their data. In Congress, a bipartisan group of legislators proposed a bill allowing users to opt out of targeted advertisements and sue internet companies that sell their data without their permission. And last month, the Federal Trade Commission announced the “Advanced Notice of Proposed Rulemaking,” which would build guardrails to protect consumer privacy in the U.S. Such provisions are long overdue. Yet there’s a shady grove of the surveillance economy that has received much less attention from lawyers and legislators: intimate privacy.

The Fight for Privacy beams a flashlight on this neglected area. “Intimate privacy” has been under-theorized as a legal concept; Citron provides much-needed elucidation. For her, the term is both a descriptive one—the set of norms around our intimate lives—and a normative one: “a precondition” to a meaningful life. It refers to “the extent to which others have access to, and information about, our bodies; minds; health; sex, sexuality, and gender; and close relationships,” and is, at heart, a “moral concept.” Citron’s book provides a legal pathway for securing our right to intimate privacy in the digital era and for recognizing that it is as crucial as our other civil liberties—no more, no less. With Roe v. Wade overturned and the potential for women’s intimate data to be used to investigate or prosecute potential abortion cases, such legal clarity is more urgent than ever. As Citron has noted in Slate, Dobbs v. Jackson Women’s Health Organization not only eviscerates federal protections for reproductive autonomy, but also “augurs a future where no aspect of our intimate life is ours … where every detail about our bodies, health, and relationships is amassed and sold.”

The Fight for Privacy builds on some of the arguments Citron made in her first book, Hate Crimes in Cyberspace, in which she argued that, just as we have moved from Web 1.0 (a read-only internet) to Web 3.0 (a space that offers online experiences tailored to our habits and preferences), cyberharassment and cyberstalking have evolved into what she calls “Hate 3.0,” a form of “personalized hate, as damaging as this new stage of the web aims to be productive.” She marshaled evidence showing the emotional harm that accompanies such online harassment: Post-traumatic stress, panic attacks, anorexia, and depression commonly trail victims. Compounding the emotional distress, victims often incur substantial legal fees and moving expenses, and pay higher out-of-pocket costs for doctor’s visits.

Since Hate Crimes was published in 2014, feminist writers and thinkers have spilled more ink on the topic of online misogyny. This year alone saw the publication of How to Be a Woman Online: Surviving Abuse and Harassment, and How to Fight Back by Nina Jankowicz, which notes that “to be a woman online is an inherently dangerous act,” and Joanna Walsh’s Girl Online: A User Manual. The publication of Jankowicz’s book illustrates the pervasiveness of online harassment. Around the book’s publication in April, the Homeland Security Department announced Jankowicz as the head of its new Disinformation Governance Board. Immediately, far-right influencers worked to discredit her, subjecting her to a bombardment of personal attacks, including comments on the far-right social network Gab promising to greet her with “Mr. 12 Gauge Slugs” and lamenting the lack of a group of trained assassins to kill her. The whole episode served to make the solutions that Jankowicz puts forth in her book for battling such sustained online abuse seem pallid. Using anti-doxing services like DeleteMe or taking a screenshot of an offending comment are stopgap measures that put the burden on the victim rather than the perpetrator of harassment. 

Citron’s new book makes an important intervention in the larger conversation about digital privacy and harassment. As she notes, the data justice crisis metastasized during the coronavirus pandemic. A government agency in Australia and the U.S.-based Cyber Civil Rights Initiative each noted an increase of more than 200 percent in cases of nonconsensual pornography. Citron notes that of the 50,000 deepfake videos posted online in 2020, about 95 percent placed unrelated women’s faces onto pornographic images.

Journalists and civilians in other countries—especially authoritarian “regimes—have also been targeted in retaliation for documenting human rights abuses, such as a journalist in India whose face was doctored onto porn clips that were “shared with nearly half of the phones in India” after she criticized Prime Minister Narendra Modi. Her home address and cellphone number were made public, and she received rape and death threats. She stopped writing. 

Citron centers the stories of women subjected to intimate surveillance, abuse, and violence, including a high school principal in New York City whose ex-boyfriend dispatched sexually explicit photos of her to the New York Post. After the tabloid published them, the principal was suspended for bringing “widespread negative publicity, ridicule, and notoriety” to the school and failing to secure her photos. Such reasoning is obtuse, as Citron notes: “According to this argument, if a shopkeeper’s safe is broken into by thieves, then the shopkeeper is to blame for not having a better safe.” 

In another case, a New York financial adviser surreptitiously recorded his sexual encounters with three different women. He then uploaded the videos to his YouTube and Vimeo accounts to share with friends. His sentence? Ten days of community service. 

For victims, such violations carry lifelong consequences. As Citron argued in Hate Crimes in Cyberspace, the internet is “a force multiplier”; it not only pushes some to act more violently than they would have offline, but also extends the life of malicious posts. Search engines instantly call up images created years earlier for a potentially limitless audience, used at the behest of cybermobs competing to be the most abusive. In the case of one individual Citron interviewed, “Anna” could not bring herself to start dating again two years after her ex-husband posted her intimate videos and photos on fake Facebook and Twitter accounts and sent them to her colleagues at the school where she taught. 

The internet is often referred to as a virtual Wild West, an ungovernable free speech zone. Citron holds no truck with that idea. Just as we have norms and rules for workplaces and public spaces, the internet should be subject to regulation. The detrimental effects of harassment do not cease to exist simply because a victim has logged off.

Citron singles out Section 230 of the Communications Decency Act for shielding social media companies from liability and providing a fig leaf for malefactors to “host posts by civil rights protestors, like members of the #MeToo movement, and child predators.” Section 230 reform is mostly associated with congressional Republicans, who suggest narrowing it to “protect free speech” by penalizing tech companies who supposedly discriminate against conservatives. But Citron believes that well-intentioned reform would tackle cyberstalking, excluding bad actors from the act’s safe harbor provision. 

Citron, who helped draft Maryland’s law criminalizing the nonconsensual publication of nude images, touts the notion, first articulated by Warren and Brandeis, of the “right to be let alone.”  She couples such legal evaluations with a need for greater algorithmic transparency, given that intimate data has been or can be used to feed self-harm videos to those whose anxiety and depression are worsening or reveal users’ sexual orientations to discriminatory governments or employers, for example. The more that algorithms are used to determine people’s eligibility for benefits, jobs, housing, credit, insurance, and other life necessities, the greater the need for transparency around such automated processes to correct for biases and disparate, discriminatory impacts inherent in these systems. 

In centering the original Brandeisian definition of a right to privacy, Citron hopes to bypass the abuses of privacy law by suggesting that lawmakers and lawyers hark back to its original intent. Some may find this unconvincing, or about as naive as Citron’s belief that with the right incentive structures in place, data brokers and advertisers can become “data guardians” rather than agents of espionage. While parts of her argument remain underdeveloped, Citron does prove that the legal tools available to victims—including tort and consumer protection laws—are anemic. They’re too narrow, requiring victims to prove that privacy invaders intended to harm, a notoriously difficult thing to demonstrate. More vexing still are networked technologies evolving at hyperspeed, so threats to intimate privacy outpace legal protections.

That victims seek civil redress—including “claims for negligence, breach of contract, unfair and deceptive actions, and breach of warranty”—and fail speaks to the need for “baseline protections for intimate privacy.” Citron makes sound suggestions, like upgrading cyberflashing (sending unsolicited sexually explicit images via text or AirDrop on Apple phones) and the nonconsensual exploitation of intimate images to felonies rather than misdemeanors. Plaintiffs should be able to sue under an alias (to protect their privacy) and get injunctive relief (in the form of removal, blocking, or de-indexing of nonconsensual images). Citron sensibly advocates for a “Do Not Sell My Intimate Data” registry, arguing too that individuals must obtain the digital equivalent of a “learner’s permit” from social media companies to use their sites. There would be an onus on companies to regularly remind users about the importance of intimate privacy and to follow up with “refresher courses.”

Ultimately, cyberharassment undermines equality of opportunity; it jeopardizes individuals’ ability to enjoy their lives, seek employment, go to school, and pursue other activities free from discrimination. All 50 states have laws on the books to protect online security, such as electronic health record protections and identity theft safeguards, and 48 have criminalized nonconsensual porn. California, Hawaii, New York, and Virginia have even made circulating deepfakes or digitally manipulated intimate images online a crime. This, Citron would say, is a good start, but we should aspire to broader protections for intimacy, in the vein of the Universal Declaration of Human Rights, which recognizes the “right to privacy” as fundamental. Rather than treating intimate privacy violations in a piecemeal fashion—which lends itself to a grab bag of weak statutes—criminal law ought “to treat the constellation” of these problems as one. The right to intimate privacy should be enshrined in a landmark federal online privacy law that would protect individuals against abusive practices. The hope is that enforcing it as such would have expressive value—it would give us a common language to talk about the importance of digital privacy. It would say to data brokers that dignity matters more than profits. It would tell government that the over-collection of data erodes equality. Such a law would thunder that intimate privacy is a right.

The post A Woman’s Right to Not Be in the News appeared first on Washington Monthly.