Harassment in the Online Workplace

As if we needed another, September kicked off with an acrid reminder that yes, all women—even the most privileged and powerful—are still subject to the cruel whims of anonymous men. On the great celebrity nude hack of 2014, Roxane Gay wrote in the Guardian, “What these people are doing is reminding women that, no matter who they are, they are still women.” It’s unfortunate, though not at all surprising, that this incident is what’s led so many people to pay any kind of attention to the online privacy violations that disproportionately affect women.

Perhaps best distilled in Amanda Hess’s expansive and massively popular cover story for Pacific Standard in January, women have never been particularly welcome on the Internet, and, depending on who’s collecting the data, are the recipients of between 60 and 74 percent of all online harassment. While the incessant online abuse and privacy violations faced by women are intimately linked with money and power—and thus have the most detrimental effects on those who are afraid to report the crime, don’t have the funds for legal fees, or who truly cannot afford lose her job—the leak of women celebrities’ nude photos does underscore the fact that even money and power aren’t enough protect women from this sort of thing (it only helps them draw attention to the problem when they become victims).

The actions included under the big umbrella of “online harassment”—ranging from publishing someone’s social security number and home address online, to writing public rape and death threats—cut straight through legality and common sense, and have left many commentators and lawmakers either perplexed or skittish when it comes to possible solutions to the problem. Many of them, unsurprisingly, have preferred to lay the blame squarely in the hands of those women who dared to take pictures of themselves or maintain blogs.

But as University of Maryland law professor Danielle Keats Citron outlines in her new book Hate Crimes in Cyberspace (Harvard University Press, 250 pages, $29.95), there are in fact many legal tools to deal with these issues that seem to leave lawmakers and law enforcers utterly baffled. Citron, a longtime advocate for the reform and utilization of laws concerning cyber stalking, civil rights, and revenge porn, has created an almost overly-thorough look at the online abuse that primarily targets women. With the amount of research, detail, and sharp, straightforward suggestions in this book, you can almost hear Citron daring her readers to attempt any kind of counterargument, because one simply doesn’t exist.

Hate Crimes lays out a wide variety of recommendations, including training police to better understand existing laws (and care about enforcing them), pushing prosecutors to consider civil rights violations when going after crimes that disproportionately affect women, and passing reforms on the state and municipal level that fully criminalize the distribution of revenge porn, to name just a few.

Citron also spends the book’s longest chapter laying out the many reasons why criminalizing online harassment and revenge porn wouldn’t conflict with legitimate First Amendment concerns. Though best known as the go-to argument for teen boys looking to seem clever in Facebook comments, First Amendment objections to cracking down on online hate speech and harassment have largely dominated the conversation of such reforms, with opponents to reform claiming that changes would chill speech or pave the way to mass Internet censorship. As Citron makes clear, true threats, “crime-facilitating speech,” and defamation have never been protected under the First Amendment anyway.

Hate Crimes fully delivers on its promise to elucidate the possible legal responses to online harassment and revenge porn, and policymakers—Citron’s intended audience—will be well served by its clarity. Much of the author’s persuasive case is built on the evidence that online harassment and revenge porn can destroy victims’ economic prospects. When people are harassed, they move off of the Internet, which prevents them from maintaining the websites or social media accounts they may need to find and apply for jobs. Harassment hurts prospective employees, because employers simply might not like what they find when they Google the victims of that harassment. For many people, the Internet is now inseparable from the workplace, and everyone deserves the chance to support oneself, Citron argues. And, as she notes of her proposals for reform, “the overall goal of this agenda is to protect the equality of opportunity in the information age.”

The author derives a lot of firing power from comparing the modern-day fight against online harassment to the 1970s-era fights for the criminalization of sexual harassment in the workplace, and, to a lesser extent, to the fight for the acknowledgement of (and due punishment for) domestic violence. Her comparisons with other feminist fights for equality are both apt and poignant, and the economic injustice of online harassment is certainly deserving of swift and meaningful solutions. But in presenting actionable suggestions for the problems laid out in front of her, the eminently realistic confines of policy proposals seem to have left no room for Citron to acknowledge the larger power dynamic at play.

The most startling takeaway from Citron’s book is the extent to which society’s contradictory conceptions of the Internet still benefit those in power, like employers and law enforcement. As becomes clear from her account, the ever shifting “reality” of the Internet depends upon how the consequences of that reality might need to be paid for, and by whom. If it means having to protect you, rape threats on Twitter could hardly matter less, and if it means having to pay you, well, anonymous comments in a 4chan forum may outweigh your glowing resume and references. For many police officers, the Internet hardly counts as “IRL,” while for employers, unverifiable or irrelevant information online becomes almost super-real, having more weight than actual considerations of experience and expertise. Either way, it’s often women—and other traditionally disempowered groups—who lose out.

Citron’s pragmatic approach unfortunately gives way to too-tepid advice about how to handle employers who want to manage and judge their prospective employees’ entire public personas and private lives. She writes, for instance, “before employers can use negative search results against employees, they should give victims an opportunity to explain.” But Citron goes on to note that simply explaining one’s Google results might not really help the victim in this case, as “it is hard to present a counterargument to the claim that someone is interested in sex with strangers or is a lying criminal.” There’s little for a victim to do; the damaging information inevitably takes on an outsize importance. In advocating for better employer considerations of victims’ circumstances, there seems to be no room left for Citron to say that, for instance, hiring decisions shouldn’t really depend on any of this information anyway.

Instead, she gives readers a table breaking down data on “types of online reputational information that influenced decisions to reject a candidate.” (As compared to the UK and Germany, the United States led the way in rejecting candidates in almost every category, for reasons including “concerns about the candidate’s lifestyle” and “unsuitable photos, videos, and information.”) Shutting oneself off from social media is a bad move, in part because it could affect your Klout score, a number sometimes consulted in making hiring decisions, Citron tells us. And when noting the possibility of civil, rather than criminal, solutions to such issues, Citron mentions that “it may also be hard to find lawyers willing to take cases involving online abuse,” but then neglects to mention anything about the proliferation of reputation management services cashing in on this latest obstacle to gainful employment.

Providing real solutions to these issues, as Citron does, is necessary, but there is a larger discussion to be had, one that involves acknowledging employers’ actions for what they are: another way of keeping in check those of us who have to submit to the increasingly invasive and demanding whims of employers in order to support ourselves. Not only are there systemic forces that have allowed these online-reputation attacks to happen, there are also systemic forces that make them matter so much.

Then again, maybe policymakers and legal experts wouldn’t be paying much attention if online harassment only affected women’s psyches, and not their paychecks. Revenge porn and other forms of online harassment are reprehensible, period, and should be taken seriously even if there were no financial consequences involved—though something tells me they wouldn’t be. But that isn’t Citron’s fault. It’s just the only real way to make the case for legal reform in America.