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Cybermobs, Civil Conspiracy, and Tort Liability Winhkong Hua

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Cybermobs, Civil Conspiracy, and Tort Liability Winhkong Hua Fordham Urban Law Journal Volume 44 Number 4 Colloquium - Getting There From Here: An Article 10 Exploration of Regionalism and Transportation in the United States 2017 Cybermobs, Civil Conspiracy, and Tort Liability Winhkong Hua Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj Recommended Citation Winhkong Hua, Cybermobs, Civil Conspiracy, and Tort Liability, 44 Fordham Urb. L.J. 1217 (2017). Available at: https://ir.lawnet.fordham.edu/ulj/vol44/iss4/10 This Note is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. CYBERMOBS, CIVIL CONSPIRACY, AND TORT LIABILITY Winhkong Hua* Introduction ........................................................................................... 1218 I. Background of Internet Harassment and Civil Conspiracy ......... 1221 A. Internet Harassment ........................................................... 1221 B. Civil Litigation and its Internet Inadequacies ................. 1229 1. Lack of Defendants ....................................................... 1230 2. Ease of Access and Anonymity ................................... 1236 3. Jurisdictional Issues....................................................... 1240 C. Civil Conspiracy and its Features Adapted ..................... 1241 II. The Problem of Cybermobs and Civil Conspiracy as a Remedy ............................................................................................ 1245 A. Cybermobs ........................................................................... 1245 B. Civil Conspiracy, Copyright Law, and Permissive Joinder .................................................................................. 1248 C. Civil Conspiracy and Cybermobs ...................................... 1251 III. AutoAdmit and Civil Conspiracy in Practice ............................. 1255 A. Civil Conspiracy Elements Present ................................... 1257 1. Group of Two or More ................................................. 1257 2. Unlawful Objective/Lawful Objective by Unlawful Means .............................................................................. 1258 3. Agreement ..................................................................... 1258 4. An Unlawful Act Committed to Further the Agreement ..................................................................... 1261 5. Harm that Was Proximately Caused by Conspiracy . 1262 B. Possible Inadequacies of Cybermob Civil Conspiracy ... 1263 Conclusion .............................................................................................. 1264 * Fordham University School of Law, J.D., 2017. I am grateful for all the help that Professor Aaron Saiger has provided me through this process. I thank my family and friends for putting up with me while I went through this writing process, and I thank the members of the Fordham Urban Law Journal for helping develop my ideas and fixing my citations. 1217 1218 FORDHAM URB. L.J. [Vol. XLIV INTRODUCTION Cities are centers of culture, learning, and debate. These urban spaces provide a stage upon which discordant voices are brought together, where communities may form, and where ideas can clash.1 The Internet is the new urban, where dissident voices can find refuge and where the world grows closer.2 But even as the Internet draws people closer together and allows debate to flourish, the Internet creates new ways for people to harass and harm others.3 So as exists in cities, structures must be created to safeguard individuals while maintaining the diversity and vibrancy that makes the space desirable. The Internet allows individuals to be hurt in ways that simply did not previously exist. Several examples demonstrate the new types of harms that have become available when people use the Internet as a tool of harassment: from false accusations, gender discrimination, and inexplicable ire, to the scorning of people who tread past certain social norms. After the Boston Marathon Bombing, Sunil Tripathi was falsely accused on Reddit of being the Boston Bomber; his family received hundreds of threatening and anti-Islamic phone calls.4 Reddit users from around the world trawled through news articles, 1. In the words of modern urban planning’s mother, Jane Jacobs: [T]he differences that often go far deeper than differences in color—which are possible and normal in intensely urban life, but which are so foreign to suburbs and pseudo-suburbs, are possible and normal only when streets of great cities have built-in equipment allowing strangers to dwell in peace together on civilized but essentially dignified and reserved terms. JANE JACOBS, THE DEATH AND LIFE OF GREAT AMERICAN CITIES 83 (1961). 2. See, e.g., Weiyu Zhang, Virtual Communities as Subaltern Public Spheres: A Theoretical Development and an Application to the Chinese Internet, in CYBER BEHAVIOR: CONCEPTS, METHODOLOGIES, TOOLS, AND APPLICATIONS (Linda Johnston ed., 2014), ACADEMIA, https://www.academia.edu/2077992/Virtual_ communities_as_subaltern_public_spheres_A_theoretical_development_and_an_app lication_to_the_Chinese_Internet [https://perma.cc/HU5W-JKKW]; Brenden Gallagher, 20 Internet Communities You Can’t Unsee, COMPLEX (July 17, 2013), http://www.complex.com/pop-culture/2013/07/20-internet-communities-you-cant- unsee/ [https://perma.cc/RD7Q-VF6J] . 3. See, e.g., Amanda Hess, For the Alt-Right, Message is in the Punctuation, N.Y. TIMES (June 10, 2016), https://www.nytimes.com/2016/06/11/arts/for-the-alt- right-the-message-is-in-the-punctuation.html [https://perma.cc/SZ7D-T6KX] (discussing the growth of the alt-right and what they borrow from 4chan communities); Abby Ohleiser, ‘We Actually Elected a Meme As President:’ How 4chan Celebrated Trump’s Victory, CHI. TRIB. (Nov. 12, 2016, 8:00 AM), http://www.chicagotribune.com/bluesky/technology/ct-meme-president-4chan-trump- wp-bsi-20161112-story.html [https://perma.cc/B8XB-63YD]. 4. Jay Caspian Kang, Should Reddit Be Blamed for the Spreading of a Smear?, N.Y. TIMES MAG. (July 25, 2013), http://www.nytimes.com/2013/07/28/magazine/ should-reddit-be-blamed-for-the-spreading-of-a-smear.html [https://perma.cc/PJ5S- T9SK]. 2017] CYBERMOBS 1219 images, and social media only to misidentify Mr. Tripathi, who had committed suicide days before the Bombing.5 Steven Rudderham received death threats and hateful comments after accusations that he was a pedophile spread through Facebook; he committed suicide soon after.6 After posting feminist critiques of video games, Anita Sarkeesian cancelled speaking engagements because of bomb threats, had her website shut down by hackers numerous times, was accused of being a fraud and a liar, and received death and rape threats which included her address and the names of her family members.7 Jessica Leonhardt was eleven when she faced the ire of a cybermob; in just a few hours after someone posted one of her videos on 4chan,8 her real name, phone number, real address, and social networking accounts circulated the Internet; harassers spammed her networking accounts, prank-called her home, and threatened her life.9 As Leonhardt’s mother said, “We’ve had many, many death threats. We’re afraid to leave the house. We’re afraid to go to bed. We’re sleeping in shifts, my husband and I am.”10 Walter Palmer, the dentist who killed Cecil the Lion, received a staggeringly large amount of online abuse that quickly turned into harassment as Internet users shared his address, 5. Id.; see also Traci G. Lee, The Real Story of Sunil Tripathi, the Boston Bomber Who Wasn’t, NBC NEWS (June 22, 2015, 9:05 AM), http://www.nbc news.com/news/asian-america/wrongly-accused-boston-bombing-sunil-tripathys- story-now-being-told-n373141 [https://perma.cc/G2B4-Z6C2]. 6. Sam Webb, Father ‘Driven to Suicide After He Was Wrongly Accused of Being a Paedophile on Facebook,’ DAILYMAIL (May 23, 2013, 4:02 PM), http://www.dailymail.co.uk/news/article-2329453/Father-driven-suicide-accused- paedophile-Facebook.html [https://perma.cc/6QXM-2NB8]. 7. See Nick Wingfield, Feminist Critics of Video Games Facing Threats in ‘GamerGate’ Campaign, N.Y. TIMES (Oct. 15, 2014), http://www.nytimes.com/2014/ 10/16/technology/gamergate-women-video-game-threats-anita-sarkeesian.html [https://perma.cc/3RGV-JPQ2]; see also Luke Malone, A Breakdown of Anita Sarkeesian’s Weekly Rape and Death Threats, VOCATIV (Jan. 28, 2015, 1:11 PM), http://www.vocativ.com/culture/society/anita-sarkeesian-threats/ [https://perma.cc/DW8K-4W37]. 8. 4chan is a large online forum that emphasizes the anonymity of its users and actively does not archive. Users do not have to register in order to participate in threads, and do not even need to input a screenname when posting. 4chan usage is free. See F.A.Q., 4CHAN, http://www.4chan.org/faq [https://perma.cc/WQK7-EAL3]. 9. Adrian Chen, How the Internet Beat Up an 11-Year-Old Girl, GAWKER (July 16, 2010, 2:02 PM), http://gawker.com/5589103/how-the-internet-beat-up-an-11-year- old-girl [https://perma.cc/3ND8-XSSR]. 10. Adrian Chen, 11-Year-Old Viral Video Star Placed Under Police Protection After Death Threats (Updated), GAWKER (July 18, 2010, 4:07 PM), http://gawker.com/5590166/11-year-old-viral-video-star-placed-under-police- protection-after-death-threats [https://perma.cc/VCG5-3HER]. 1220 FORDHAM URB. L.J. [Vol. XLIV his phone number, uncovered information
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