Friday, August 21, 2015

The Law Discovers The Internet: Tales from Legal Thunderdome

Hey, remember GamerGate?


By now you've either closed the tab and moved on with your life, or I've got your attention. If you're willing to stick around, I'm going to do my best to use one little aspect of the whole GamerGate dust-up to help make sense of a much bigger topic: How has the United States’ legal system learned how to handle problems that involve the internet, video games, and 21st century culture.
(Spoiler Alert: It hasn’t.)


If you're on the fence about keeping this tab open, here's a spoiler alert for you: The law has only the vaguest sense of what An Internet is.


Still here? Cool. Let's learn some stuff.


The awkward relationship between modernity and the law really hit home for me when I read an article about how a congressional domestic violence task force held a hearing on GamerGate and how testimony from Zoe Quinn had been a pretty central part of the proceeding. The forum made sense to me, but over on a Reddit discussion thread there were people who were pretty confused. Why, they wondered, would a domestic violence task force be the ones looking into Internet harassment campaigns and their fallout? How was that the right place to be talking about anonymous threats of violence coming from thousands of people Quinn had probably never met in her life? What in the world did this have to do with domestic violence?


These critical thinkers were, sadly, using common sense to analyze this. An easy mistake to make. I, on the other hand, have had my sense of reality and logic warped beyond repair by practicing law for the past five years of my life and saw the connection right off the bat. The two topics are a perfect fit for one another—but you'd have to tilt your head, squint, and drown yourself in three years of law school debt to see it that way without some prodding.


I wouldn't wish this on anyone, dear reader, so I'm going to do my best to translate what's going on here from legal bullshit into normal human language.


The short version is that the DV panel had grounds to discuss this because Quinn's ex-boyfriend was involved. When your ex starts some shit, you deal with it through the domestic violence laws. In the eyes of the law, this was an ex starting shit. In your local courthouses, domestic violence hearings take place on a regular basis and hear about one partner trying to use social media to harass the other. Most of the time, it's limited to nasty posts on Facebook walls or Twitter wars, but the only difference in GamerGate's case is we had an angry ex who managed get thousands of people to magnify his attack. So you see, it's just a super-sized version of the kind of social media harassment DV courts have been dealing with for years! Easy as that!


"Bullshit!" you yell. "You can't equate someone being driven out of their home by a virtual army of anonymous harassers with those smaller scale incidents where the parties know each other! Your comparison is bad, and you should feel bad! I'm closing this tab now!"


And you would be right (except for the tab closing thing, please). It's a shitty comparison. Treating GamerGate like a fight between two people who had a little bit of help from outsiders completely misses the point and fails to address the long-term, systemic problems with social media culture that came to light.


But the law, as it stands right now, is absolutely incapable of doing better. The American court system really only knows how to deal with problems that it's seen before, so anything genuinely new has to be compared to an old problem that we already have solutions for if we want to get anywhere.


Think of it like a fussy toddler. The law is a two-year-old who only willingly eats mac ‘n' cheese and chicken nuggets. If you want to introduce new food to this kid, there had better be macaroni, cheese, or chicken in it. Same thing with the law. No judge in the world is going to swallow your argument about the anonymity of the Internet allowing for harassment and stalking campaigns that would have been impossible 15 years ago and how that is going to require new solutions. Judge doesn't want a call for new solutions. Judge wants macaroni, cheese, and chicken. He (or she) wants something they've seen before. That's why, if you introduce your internet mob harassment/stalking campaign under the banner of a domestic violence proceeding, you've got a much better chance that Judge will bite. This isn't scary new food! It's stuff Judge already knows! And once the choo-choo train of a case has entered the station, maybe Judge will be more open to all those other ingredients that looked scary before.


Maybe you guys were right about my comparisons being bad, but that's not the point! The point is that the judiciary of the United States is just not equipped for what this century is asking of them. Like I said, I'm a practicing lawyer. I've been to those DV hearings and watched a judge pull aside their 20-something clerk and ask "what is a Twitter" after taking testimony about nude photographs being tweeted out by an angry ex. I've heard judges describe Facebook as a group of private webpages. Simply put, I've watched the legal system struggle and fail to wrap its head around stuff that, to me, is as simple as breathing.


So we get our analogies. Legal analysis in this country has always been founded on the use of analogies to justify positions, but now they're getting stranger and stranger. It's all too new! But, if nothing else, the judicial branch is scrambling to try and make sense of it, sometimes with questionable results.


This is where I want to come in. The legal system is trying to deal with the Internet age by translating normalcy into legalese. I'd like to translate it back into something that normal people can understand. That's what I'm hoping to do with my writing here. If you're looking for legal advice or concrete answers, I have none to give—mainly because there aren't any answers yet. Everything is in a state of confused limbo, and things that seem settled can't even be counted on.


Internet Law is basically legal Thunderdome right now. It's frustrating, but learning the why of the sometimes crazy decisions we hear about can only help us get the justice system to make better ones down the road.

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