Legal Analysis

 The Introduction of a New Internet Tort, acronym “IDIRA” Instigating a Distributed Internet Reputational Attack. In this section, I will explain of legal basis for the theory of a new tort, that will stand in relation to the old tort of defamation as newsprint stands in relation to the Internet. The need to protect individuals from the exponential power of technology to invade privacy was the subject of a recent Supreme Court case that gives some guidance in the field.

In United States v. Antoine Jones, the Supreme Court announced a new rule governing the use of GPS trackers.  The Court had previously held that no warrant was required before attaching a radio-signalling tracker to a car because the car’s movements while travelling on the public highways were not private. That precedent could not apply to a situation where the an automobile’s movements were monitored round the clock via remote GPS tracker, effectively detailing the entire pattern of the driver’s life over an extended time period. Such an invasion of privacy was an order of magnitude more serious than tracking the radio pulse emitted by a car that was basically going from point A to point B. So a warrant was required. Justice Sotomayor, writing the concurring opinion:

 Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.”

Analogously, the frequency of DIRAs makes it apparent that old laws concerning defamation need reforming to take account of the pernicious effects of allowing Internet mobs to run riot, placing meaningful limits on what is fair play in the realm of social media. Suggestions will be made for ways to deal with the problem that will protect publishers from being required to play censor, including the creation of a new IDIRA tort. See the article on the related subject Stern, Nat, Creating a New Tort For Wrongful Misrepresentation of Character.

In response to an inquiry from a fellow attorney about what I had in mind when I said “create a new tort,” I fleshed out some of the ideas behind the IDIRA tort.

First, I think that the immunity provided by the CDA, 47 USC Sec. 230 needs to be re-thought.  When combined with the allowance of pseudonymous posting by virtually all websites, three evils grow under its protection: (1) people pretending to be third parties while actually being the site publishers, (2) single users pretending to be multiple users, and (3) publication of defamatory and privacy-invasive information for which no effective redress is possible due to anonymity.

Second, I think that when evaluating whether speech gives rise to the Incitement of DIRA tort (IDIRA), we must look beyond the content of the speech, to determine:

  1. the results of the initial speech, i.e., whether it provoked unlawful conduct, and
  2. whether it was foreseeable that the initial speech would provoke the unlawful conduct.

If 1 and 2 are both answered “Yes,” then I think that IDIRA should be actionable.

To answer question 1, we need a list of what constitute unlawful actions.  I think it should include:

  1. Classic defamation
  2. Usurpation of identity of the target by creating false online identities on Twitter and Facebook, by cybersquatting, etc.
  3. Sending malicious emails with the intent to hurt and wound the receiver
  4. Sending malicious emails to third parties with intent to alienate the affections of the DIRA target
  5. Denial of Service Attacks (my network has suffered three major DOS attacks, and I have quadrupled my server space, at considerable cost, simply to stay online) or other Digital Trespasses to Chattels
  6. Defacement of online profiles with malicious posting (my Wikipedia profile is a melange of nastygrams)
  7. Creation of multiple identities to intensify the apparent public disapproval.
  8. More tactics can be added, and the list should be open to addition as DIRA tactics expand.  [After this exchange, it occurs to me that Profiting from the DIRA (as Indiegogo.com has done, should also be a DIRA predicate act.]

The attorney observed:

“The tort you propose, IDIRA, has two elements, (1) speech that provokes unlawful conduct and (2) that it was foreseeable for it to do so.  That raises two additional questions in my mind.

First, regarding the first element, it seems exceptional that tort liability hinge on the later conduct of third persons.  This would mean that at the time it is spoken, the speech would not be actionable.  Only later (once the lawlessness it meant to incite occurs) would the speech become tortious. …  Wouldn’t [this] violate due process?”

“Second, and I think this is the tougher question, the list of unlawful actions you propose is problematic.  Items (2), (3), (4), and (6) are sometimes, perhaps even usually, not currently unlawful.  For IDIRA to lie, wouldn’t we need to create a new tort (DIRA I suppose) that would make malicious (but not defamatory) speech unlawful?  What are the elements of that tort?”

I responded:

“A new tort is warranted if new circumstances justify it.  Note, Justice Holmes didn’t say it was unlawful to shout “Fire!” in your living room, but only in “a crowded theater.”  Why?  Because while yelling “Fire!” as a practical joke to cause someone to spill their drink in your living room could not incite a stampede, when yelled in a crowded theater, the masses of people create a danger of a stampede in which people are likely to be killed.

Similarly, while someone flinging a single piece of gravel in my direction cannot hurt me seriously, if ten thousand people simultaneously throw a piece of gravel at me, I will probably be crushed under the massed weight.

The nature of a DIRA is analogous to provoking large numbers of people to hurl spitwads.  One spitwad’s no big deal.  Half a million could drown you.  And soliciting a digital crowd to engage in that behavior should be unlawful.  I don’t see what due process has to do with it.  You get due process after you’re sued.

And no, I don’t think the underlying acts all have to be independently unlawful to make IDIRA actionable.  Yelling ‘Fire!’ on an empty street, or in my living room does not have to be a crime to make it criminal when done in a crowded theater.”

The attorney replied:

“I think I get it now.  One last point though.  The due process issue isn’t procedural.  It has to do with the fact that at the time the speaker asks the crowd to hurl spitwads, he has no way of knowing whether he’s just committed a tort.  That’s the point of Brandenburg’s immanence requirement and why speech has traditionally been evaluated at the time it is spoken.  IDIRA, by making the effect of the speech an element of the tort, would be unique as far as I know.”

I replied:

“That’s where foreseeability gets into it.  When Henry VIII said, ‘Will no one rid me of this troublesome priest?’ (or words to that effect) he knew that someone would.  The analysis isn’t really any more problematic than determining whether conduct is ‘outrageous’ for purposes of Intentional Infliction of Emotional Distress.”