A cousin to identity theft, ‘doxxing’ is on the rise By Kristi S. Schubert; Kristi S. Schubert LLC; New Orleans, Louisiana

You may not be familiar sexual feedback or violent with “doxxing,” but if you sexual encounters. This can heard of the recent hacking lead to a slew of harass- and release of private ment and threats, both on- celebrity photographs, you line and in person, in some understand the concept. cases lasting for years. Doxxing (sometimes spelled Another particularly “doxing”) is the practice of dangerous form of doxxing, gathering and releasing an known as “swatting,” individual’s personal involves submitting an information, such as name, individual’s information to address, photographs, or local authorities along with financial information, on a false report so that a the Internet, typically in a Kristi Schubert SWAT team will raid the public forum. The term is person’s home. Swatting is an abbreviation for “dropping dox” or “drop- so common in some online communities ping documents,” which arose out of the 90s that there are now YouTube videos compil- hacker culture as a means of revealing the ing clips of swatting footage. true identity of fellow hackers, usually for the purpose of revenge or harassment. Doxxing as “revenge porn” Since then, doxxing has evolved to While existing civil and criminal laws include various forms of harassment with can address many harmful forms of consequences ranging from irritating, to doxxing, a fast-growing and particularly distressing, to potentially lethal. Yet, the destructive incarnation of doxxing, recourse available for doxxing victims commonly (and controversially) referred to remains a legal gray area. as “revenge porn,” provides particular difficulties for victims seeking recourse. Overview of doxxing Revenge porn involves the online publish- The most common and fastest growing ing of private, sexually explicit images form of doxxing involves identifying an without the consent of the persons pic- individual online by posting his or her tured. According to Mary Anne Franks, name, address, or telephone number. While associate professor of law at University of this might seem innocuous, the harm Miami School of Law: comes not from the information itself but from the forum in which the information is A vengeful ex-partner, opportunistic posted. As always, the power and danger of hacker, or rapist can upload an explicit the Internet comes from the exponential image of a victim to a website where exposure it provides. thousands of people can view it and Some have used doxxing as a means of hundreds of other websites can share it. inciting violence against an individual by In a matter of days, that image can domi- posting that person’s information in an nate the first several pages of search openly violent and hostile forum. For exam- engine results for the victim’s name, as ple, one form of doxxing involves posting a well as being emailed or otherwise exhib- person’s photograph (usually a young ited to the victim’s family, employers, woman) along with her real name, address, co-workers, and peers. Victims are fre- and phone number to a website soliciting quently threatened with sexual assault,

April 2015 • Louisiana Advocates 13 Your help stalked, harassed, fired from jobs, and forced to change schools. Some victims is needed! have committed suicide.1 Frank points out that the moniker “revenge porn” can be misleading because Increasing and diversifying some perpetrators act out of a desire for profit, notoriety, or entertainment.2 Recog- LAJ membership nizing the potential for profit, websites have makes your association stronger been created for the sole purpose of display- ing such non-consensual illicit images. One and more valuable of the first popular versions of such sites, IsAnyoneUp, averaged nearly thirty million to all members. page views per month and earned $10,000 in monthly advertising revenue.3 In addition to ad revenue, a similar site, Do you know someone UGotPosted, made money by creating a (including a law student) second site, ChangeMyReputation, which contacted the individual whose images who would benefit were posted on UGotPosted, and offered to from LAJ membership? have the images removed if the victims paid a substantial fee. A survey conducted by Cyber Civil Rights Initiative (CCRI) outlined the scope If yes, please contact of the growing trend.4 Out of 1,606 total re- that person today. spondents, 23 percent (361 people) had been victims of non-consensual pornography. LAJ has sample letters Out of those victims, the survey found that: and other materials available for use. • 90 percent (325 respondents) were women. • 17 percent (61 respondents) had not Or, contact voluntarily taken the nude photos LAJ Membership Committee themselves. • 68 percent (245 respondents) were Chairman Glenn Armentor between the ages of 18 and 30. or Tom Wright at LAJ, • 27 percent (97 respondents) were between the ages of 18 and 22. 225-242-4837 or [email protected], and one of them will contact The today’s teens document a dizzying amount of their personal lives on such your prospect personally. social media sites as Facebook, Twitter, and Instagram. As they enter adulthood, these issues will become even more prevalent. Together we can help LAJ grow! More likely than not, you will eventually have a client, friend, or even a family member ask you what recourse he or she has to such behavior.

Criminal law may be ill suited to address the problem. Louisiana Association for Justice Membership Initiative As of the writing of this article, sixteen states have criminal laws directly applica- ble to revenge porn. Louisiana is not one of

14 Louisiana Advocates • April 2015 them. One problem holding states back to victims who took the photograph from adopting such criminal laws is that it themselves, and there are practical difficul- is difficult to avoid running afoul of the ties with enforcement. First Amendment. The victim must issue a takedown In 2014, the ACLU successfully fought to request to each site posting the material. have Arizona’s revenge porn statute over- Since there could be hundreds of different turned on the grounds that it was overly sites, the victim must send out hundreds of broad, criminalizing even the display or sale individual notices and then constantly po- of artistic, historical, and newsworthy lice the Web for reappearance of the images. images. For example, someone who sells a Even then, takedown requests fail to history book containing an iconic image address the underlying problem. In most such as the Pulitzer Prize-winning photo instances, the damage has already been graph “Napalm Girl” — the unclothed Viet- done, especially since, absent a cultural and namese girl running from a napalm attack — legal shift in the United States akin to the could have been prosecuted under the law. European Union’s “Right to be Forgotten,” Occasionally, cases involving revenge completely and permanently removing per- porn may coincidentally fall under such sonal content from the Internet is all but related criminal statutes as child pornogra- impossible. Further, takedown requests fail phy, unlawful surveillance, sexual assault, to adequately compensate victims or to aggravated harassment, domestic violence, deter wrongdoers. cyber-stalking, stalking, extortion, unlawful use of an access card, hacking, etc. But Attorneys in other states there remains a need for a direct legal are addressing the issue using tort law. approach to advocating for these victims. Attorneys in other states have been turn- ing to civil law, particularly intentional in- Limited solutions under copyright law fliction of emotional distress (IIED) claims, As a partial solution, some victims of as a recourse for victims of revenge porn. In revenge porn have been able to utilize Texas, a class action lawsuit was filed in 2013 provisions of the 1998 Digital Millennium against a revenge porn site, Texxxan.com, as Copyright Act (DMCA) to attempt to remove well as against Texxxan.com’s uploaders, particular postings of their images online. subscribers, and Web-hosting giant GoDaddy. In such cases, the victim must send a com for invasion of privacy and IIED. DMCA “takedown notice” to the website’s In California, a civil lawsuit in a revenge host requesting removal of the images. porn case ended with a $250,000 jury award. One site, Undox.Me, provides step-by- In February 2014, a Texas jury awarded a step information for submitting such re- woman $500,000 for her emotional distress quests. Some sites, such as DMCA.com, will after her ex-boyfriend posted private submit the takedown requests for you for a photos, messages, and Skype conversations fee. However, this remedy is only available Continued to page 18

3506 WashingtonWashington AAve.,Avvve.,e., Suite G Past President, [email protected]@sgpflaw.com Gulfport,Gulfport, Mississippi 39507 MS Association for Justice 228-822-2404228-822-2404 | www.sgpflaw.comwww.sgpflaw.com

April 2015 • Louisiana Advocates 15 ‘Doxxing’ result from his conduct. The extreme and outrageous Contined from page 15 character of the conduct may arise from an abuse by the of her on the Internet and then emailed her regularly to actor of a position, or a relation with the other, which update her on how many people had viewed her private gives him actual or apparent authority over the other, or images.5 At the time, the Texas verdict was the largest power to affect his interests.9 revenge porn verdict in U.S. history, and some have touted it as a turning point in the statewide discussion of how best to Under this standard, an IIED claim based on a revenge advocate revenge porn victims. porn case would face several specific challenges.

Why IIED is a good fit for such cases Challenge 1: Proving intent One of the reasons that claims based on intentional in- In Monsanto, the court clarified that intent means that the fliction of emotional distress or “the tort of outrage” are a actor either “(1) consciously desires the physical result of his good fit for the emerging issues of Internet culture is that act, regardless of the likelihood of that result happening; or the cause of action is designed to reflect society’s existing (2) knows that that result is substantially certain to follow social norms.6 As the Louisiana Supreme Court stated in from his conduct, regardless of his desire as to that result.”10 Nicholas v. Allstate: “Generally, liability will be found where In many cases, a “conscious desire” will be apparent from the facts are such that, if they were recited to an average the choice of the posting forum given that such sites are member of the community, they would arouse his resent- known for hosting images for the purpose of “revenge.” ment against the actor, and leave him to exclaim, ‘Outra- Occasionally an individual will even state his or her desired geous!’”7, 8 Obviously, not all instances of revenge porn result with the images. However, even when profit, notoriety, would rise to the level of “outrageous.” or factors unrelated to causing distress motivate the poster, While “outrage” is an imprecise term, this lack of preci- the nature of the forum and its publicity may make it clear sion is also a virtue allowing the tort to evolve with chang- that a particular result is substantially certain to follow. ing times, social circumstances, and geographic locations. This built-in contextual analysis makes IIED claims Challenge 2: Proving “severe” emotional distress uniquely adept at addressing bad Internet behavior. Proving damages is a significant hurdle in any IIED case, as plaintiffs rarely suffer such extreme emotional distress IIED claims in Louisiana; three-part test that they are motivated to seek medical treatment that For an IIED claim to succeed in Louisiana as it has could document their distress and its effects. However, the in Texas, a plaintiff must meet the three-part test set CCRI survey suggests that the victims of revenge porn forth by the Louisiana Supreme Court of Louisiana in might be particularly likely to suffer damages that would White v. Monsanto: meet this burden. For example, the survey found that, of the 361 victims: In order to recover a plaintiff must establish (1) that the conduct of the defendant was extreme and outrageous; • 93 percent (336 people) said they have suffered signifi- (2) that the emotional distress suffered by the plaintiff cant emotional distress due to being a victim. was severe; and (3) that the defendant desired to inflict • 42 percent (152 people) sought out psychological severe emotional distress or knew that severe emotional services due to being a victim. distress would be certain or substantially certain to • 51 percent (184 people) had suicidal thoughts due to being a victim. • 26 percent (94 people) had to take time off from work or school due to being a victim.

• 8 percent (29 people) quit their job or dropped out of school due to being a victim. • 6 percent (22 people) were fired from their job or kicked out of school due to being a victim. • 3 percent (11 people) legally changed their name due to being a victim.

Challenge 3: Proving outrage Whether an act can be called “outrageous” is a context- specific determination. More important than what a defen- dant does is when and where he or she did the act and the re- Mediation | JuryJury Focus Groups | Special Master lationship between the parties involved, particularly whether www.tomfoutzadr.comwww.tomfoutzadr.com

18 Louisiana Advocates • April 2015 the defendant’s relation with the plaintiff gave him power to The websites hosting the illicit content often have affect the plaintiff ’s interests.11 The courts also look at the information that could identify abusive posters but may duration of the activity and its resulting harm. Courts refuse to reveal their users’ identities to protect their finan- around the nation have frequently found that a series of cial interest in hosting such content. Other websites make a harassment can rise to the level of “outrageous” conduct.12 conscious effort not to obtain or retain their users’ identify- The CCRI survey showed that about half of victims were ing information. Finally, even if the individual can be identi- subjected to continued harassment or stalking after their fied, he or she may be judgment-proof. images were posted. This harassment and stalking wasn’t A plaintiff may also sue the website itself or a related In- just online. Thirty percent had been harassed or stalked in ternet service provider (ISP), such as a website hosting com- person, over the phone, or otherwise offline. Given the pany. When suing a website or ISP, an attorney must contend breadth of exposure and the permanence of images on the with the broad defenses afforded by Section 230 of the Com- Internet, the harassment in some of these cases lasts for munications Decency Act of 1996. Section 230 shields website years and sometimes decades. owners and ISPs from liability whenever they act as a “ser- vice provider” and only passively display “user-generated Challenge 4: Succeeding against particular defendants content” (i.e., content uploaded/created by a website’s users). Another hurdle plaintiffs face is identifying the individ- However, in the past decade, limits have been placed on ual who posted the illicit material. Often, the user will iden- that immunity. In 2008, the 9th Circuit held that the Section tify himself in the post or to the victim. However, absent 230 defenses do not apply when the website solicits or such evidence, proving the user’s identity may be difficult. interacts with the content in a way that augments or A computer’s Internet protocol (IP) address can provide the materially contributes to the content’s alleged unlawfulness.13 location of the user, but a moderately sophisticated user can The court stated that when a website engages in such activi- obscure his or her IP address by routing Internet traffic ties, it is acting as a “content provider” in addition to being through a proxy server, virtual private network, or by a service provider and thus should be held liable for the simply using publically available Wi-Fi. content posted.

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April 2015 • Louisiana Advocates 19 Until more civil claims based on revenge porn are litigated or until a workable ap- proach to criminalizing revenge porn is found, these issues may remain in a legal gray area. The problems raised in this arti- cle extend beyond the scope of this particu- lar issue. More of our interactions are taking place online, and this means that more potentially tortious conduct is happen- ing on the Internet rather than in person. To what extent are victims of Internet harms entitled to compensation? Should in- dividuals be held accountable for the conse- quences of their Internet activities? Should website providers or ISPs? What constitutes LAJ practice sections “outrageous” behavior on the Internet? A and list servers jury may best answer these questions. help win cases Endnotes 1. Franks, Mary Anne. Drafting an Effective ‘Revenge Porn’ Law: A Guide for Legislators (January 5, 2015). Available at SSRN: Each LAJ practice section is a potential source of http://ssrn.com/abstract=2468823. information that can make the difference 2. Id. between winning or losing a case for a client. 3. Love, Dylan. “It Will Be Hard To Stop The Rise Of Revenge Porn,” Business Insider. Here’s what some members say about LAJ’s February 8, 2013. Web: March 19, 2015. practice sections and list servers: 4. Franks supra. 5. Rogers, Brian. “Jury Awards $500,000 in ‘Re- “This list server is like having an entire room venge Porn’ Lawsuit,” Houston Chronicle. February 21, 2014. Web: March 9, 2015. filled with experienced minds offering their 6. Rabin, Robert L. “Emotional Distress in Tort best opinions to any questions you might have.” Law: Themes of Constraint,” 44 Wake Forest Law Review 1197, 1200–02 (2009) at 1205. “This resource is the ultimate blessing for 7. Nicholas v. Allstate Ins. Co., 765 So.2d 1017 the solo practitioner or the small plaintiff firm.” (La.2000). 8. Smith, Catherine E. ” Intentional Infliction “I am always amazed at how the members of Emotional Distress: An Old Arrow Tar- of this group are so quick to respond gets the New Head of the Hate Hydra,” 80 when one of us needs help.” Denver University Law Review 1, 33 (2002). 9. White v. Monsanto Co., 585 So.2d 1205 (La.1991). LAJ’s practice sections and list servers are 10. Id. active and available exclusively to our members. 11. Id. Our sections include: Auto Torts; Aviation 12. Bustamento v. Tucker, 607 So.2d 532 Connection; Civil Rights; Business Torts; (La.1992) (Alleged pattern of ongoing and Criminal Law; Employment Law; Family Law; repeated sexual harassment by employer Insurance Law; Law Practice Technology; and co-worker over two-year period was Products Liability; Maritime Law; Medical sufficient basis for claim of intentional Malpractice; Workers’ Compensation; and infliction of emotional distress.). Toxics, Environment & Pharmaceuticals. 13. Fair Housing Council of San Fernando Valley v. Roommates.com, LLC., 521 F.3d 1157 (9th to learn more, call 225-383-5554 Cir. 2008). or visit www.lafj.org

20 Louisiana Advocates • April 2015