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| | | -- By StewartPollock - 09 Mar 2022 | |
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< | Introduction | >
> | Section I: Current Legal Status of Doxing | | | | |
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< | Doxing, also known as doxxing, is the act of exposing a web user’s identity and other personal information, such as their location or address. Depending on who you ask, doxing is either an especially malicious form of harassment, or a sometimes-justified act of vigilantism, which can prevent bad actors from using the relative anonymity of the web as a shield for harassment and misconduct. This latter view, which could be summarized as the “sunlight is the best disinfectant” approach, has been at the center of a number of high-profile incidents over the last decade, such as the 2012 doxing of a controversial reddit moderator by the late website Gawker, or the 2016 resignation of an editor for the site Politico after he published the home address of white supremacist Richard Spencer.
Section I: Legal Status of Doxing
Doxing frequently exists in a legal grey area—there is no federal “anti-doxing statute”, but doxing or doxing-esque behavior has been prosecuted under broader federal and state anti-stalking statutes. However, these statutes, which impose criminal penalties, have limited ability to reach individuals who are part of larger campaigns of loosely organized harassment. In particular, statutory language which requires a “course of conduct” by one individual limits the applicability of these laws where many people are involved individually. Kentucky recently passed what has been described as the first true “anti-doxing” statute, which would create both civil and criminal penalties for releasing personally identifying information with the intent to intimidate, abuse, threaten, harass, or frighten individuals. This law, by imposing joint and several liability on would-be doxers, goes further than federal or state laws. However, by moving doxing into the realm of civil law suits, the Kentucky law raises questions about where to draw the line between doxing and legitimate muckraking. | >
> | Doxing is the act of exposing a web user’s identity and other personal information, such as their location or address. Depending on who you ask, doxing is either an especially malicious form of harassment, or a sometimes-justified act of vigilantism, which can prevent bad actors from using the relative anonymity of the web as a shield for harassment and misconduct. Doxing frequently exists in a legal grey area—there is no federal “anti-doxing statute”, but doxing or doxing-esque behavior has been prosecuted under broader federal and state anti-stalking statutes. However, these statutes, which impose criminal penalties, have limited ability to reach individuals who are part of larger campaigns of loosely organized harassment. In particular, statutory language which requires a “course of conduct” by one individual limits the applicability of these laws where many people are involved individually. Kentucky recently passed what has been described as the first true “anti-doxing” statute, which would create both civil and criminal penalties for releasing personally identifying information with the intent to intimidate, abuse, threaten, harass, or frighten individuals. This law, by imposing joint and several liability on would-be doxers, goes further than federal or state laws, and has been presented by its advocates as a way to crack down on malicious forms of doxing. However, by moving doxing into the realm of civil law suits, the Kentucky law raises questions about where to draw the line between doxing and legitimate muckraking. | | |
Section II: Federal and State Anti-Doxing Laws | | | Section III: Kentucky's "Anti-Doxing" Law | |
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< | In January 2019, a confrontation at the Lincoln Memorial in Washington, D.C. involving a group of high school students from Park Hills, Kentucky (several of whom were wearing “MAGA” hats in support of Donald Trump) went viral on social media, leading to one of the students, Nicholas Sandmann, having much of his personal information revealed. In part in response to this incident, the state of Kentucky passed a law last year intended to provide both civil and criminal penalties for doxing. This bill, signed into law in April 2021, makes it a civil tort to “release of someone’s personal information [in a way that] would cause a reasonable person to be in fear of physical injury to himself or herself, or to his or her immediate family member or household member.”
The Kentucky statute has the possibility of being more effective than federal and state laws which criminalize doxing, because it imposes joint and several liability on would-be doxers, rather than requiring a “course of conduct” by one individual. In addition, the Kentucky statutes shifts away from using criminal statutes to punish doxing, and instead creates a private right of action for individuals who are the target of doxing campaigns. Moving anti-doxing into the civil sphere eliminates one of the major problems with using § 2261A(2) to prosecute doxing, which is a lack of law enforcement resources. However, these attributes of Kentucky’s anti-doxing law, particularly in light of the politically-charged circumstances in which it was adopted, raise questions of a potential chilling effect such a law could have on legitimate journalism.
Section IV: Potential Issues
Laws such as Kentucky’s anti-doxing statute may provide a valuable way for the victims of harassment to strike back against those who maliciously publish their personal information online. However, by creating a private right of action for the release of publicly available information, they have the potential to create a chilling effect on legitimate journalism. Although the Kentucky law has not yet been tested, a relatively narrow construction, emphasizing the “reasonable fear” language of the statute, is necessary to prevent the bad-faith use of the law to prevent the dissemination of identifying information that serves a legitimate journalistic purpose. | >
> | In January 2019, a confrontation at the Lincoln Memorial in Washington, D.C. involving a group of high school students from Park Hills, Kentucky (several of whom were wearing “MAGA” hats in support of Donald Trump) went viral on social media, leading to one of the students, Nicholas Sandmann, having much of his personal information revealed, and being subject to highly negative news coverage. In part in response to this incident, the state of Kentucky passed a law last year intended to provide both civil and criminal penalties for doxing. This bill, signed into law in April 2021, makes it a civil tort to “release of someone’s personal information [in a way that] would cause a reasonable person to be in fear of physical injury to himself or herself, or to his or her immediate family member or household member.”
The Kentucky statute has the possibility of being more effective than federal and state laws which criminalize doxing, because it imposes joint and several liability on would-be doxers, rather than requiring a “course of conduct” by one individual. In addition, the Kentucky statutes shifts away from using criminal statutes to punish doxing, and instead creates a private right of action for individuals who are the target of doxing campaigns. Moving anti-doxing into the civil sphere eliminates one of the major problems with using § 2261A(2) to prosecute doxing, which is a lack of law enforcement resources. | | | | |
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This draft is fully polished. The best route to improvement seems to me to ask, "why?" Publishing private information so as to cause harm is the civil wrong Brandeis and Warren were initially writing about more than 125 years ago. It's equally clear that a range of criminal offenses can be charged when a state or federal prosecutor can prove the required mental elements beyond a reasonable doubt. It's difficult to see why additional statutory offense-making is necessary, or why having done so moves one millimeter the constitutional line for reviewing applications of any criminal statute to any particular conduct a prosecutor might undertake to charge. So it would be good to take up directly the question whether there is a there here.
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> | However, these attributes of Kentucky’s anti-doxing law, particularly in light of the politically-charged circumstances in which it was adopted, raise questions of what it is actually intended to counteract. If interpreted broadly, it is easy to see how the law can have a chilling effect on genuine journalistic activities. Given the Kentucky attitudeof the legislature which adopted the bill, perhaps that chilling effect is the point. | | | | |
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You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines: | | | | |
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> | Section IV: Protection or Political Theater? | | | | |
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> | Laws such as Kentucky’s anti-doxing statute are presented as providing a valuable way for the victims of harassment to strike back against those who maliciously publish their personal information online. For those such as Sandmann (who settled his defamation claims against major media outlets for large amounts) there are existing laws that offer greater protection than the new Anti-Doxing law. In light of this, there is some reason to be skeptical that this law is anything more than political grandstanding by Kentucky politicians eager to highlight the perceived excesses of internet activists and journalists. | | | \ No newline at end of file |
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