So what can be done?
Block the site
Blocking involves serious questions of censorship, and for many (me included, perhaps), that’s reason enough to exclude it as a remedy. Still, some schools blocked Juicy Campus, some at the request of their student government. But, blocking a site from campus networks is a small barrier in today’s internet. Worse, it’s impossible to block a site without raising awareness of it: building public broad consensus on the matter is sure to introduce the site to many who had not previously been aware of it, and blocking it silently opens the school up to charges of censorship. The ACLU acted in at least one case where a school blocked Juicy Campus, and Juicy (perhaps tipped off by students who’d been blocked) was able to control the first round of the story.
The FCC might also be interested in blocking. Given that schools operate as ISPs to their residential students, network neutrality rules probably apply. The rules adopted in 2005 state “consumers are entitled to access the lawful Internet content of their choice,” and in 2009 the agency went even further:
- A provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner
- A provider of broadband Internet access service must disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking
In 2007 consumer groups asked the FCC to fine Comcast $195,000 per user for violating these rules. The fine was tossed in the end, but Comcast was ordered to end its discriminatory network practices and fully disclose it’s network management policy.
If that isn’t enough, blocking the site may create liability if the school chooses not to block other sites. Blocking Juicy because a group of students claim harm allows any student to demand similar action on any other site. One can almost imagine a student arguing in court that the school knew or should have known of the harm caused by the site and demanding damages.
Pursue the perpetrators
Civil law may offer some remedy (please observe the standard I am not a lawyer disclaimer). The students could claim defamation. It’s difficult to prove, but the recent Skanks in NYC case suggests that courts are willing to unmask anonymous bloggers (that case was especially difficult because the defamed was a public figure). Paraphrasing from a recent guide to online (non-) anonymity:
In a civil lawsuit, a litigant is often allowed to send out subpoenas in the name of the court—without the court’s prior approval—to Google, Yahoo, or wherever in order to request information about someone. This can even be done before filing a lawsuit in some states, and some entities use it as a way to find out who their detractors are without ever drawing up a complaint. If the accused user doesn’t file an objection within some period of time (Google’s is 20 days), the company will usually go ahead and turn that information over.
Revealing the identity of a blogger is often sufficient to end their offensive behavior, and the risk of being unmasked is likely enough to moderate future behavior.
Though the person posting offensive material may be held accountable, remedies against the operators of the web site may be limited. The 1996 CDA has provided safe harbor for the operators of forums like Juicy Campus. Specifically, the provisions of Section 230 have been repeatedly upheld in various courts. However, a 2006 amendment to 47 U.S.C. 223, the Telecommunications Harassment Statute appears to open the door to claims against the site’s operators. The statute has its origins in the days of the telegraph and telephone, but various amendments have increased the scope to include internet communications. I haven’t read the whole thing, but these two clauses pop out:
Whoever in interstate or foreign communications makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications;
Whoever in interstate or foreign communications knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity,
I am not aware of any case that’s tested the 2006 amendment, but the penalty is a fine or imprisonment, or both.
Many states also recognize criminal harassment. In New Hampshire it’s a misdemeanor offense with apparently broad applicability to anonymous online speech:
I. A person is guilty of a misdemeanor, and subject to prosecution in the jurisdiction where the communication originated or was received, if such person:
- (a) Makes a telephone call, whether or not a conversation ensues, with no legitimate communicative purpose or without disclosing his or her identity and with a purpose to annoy, abuse, threaten, or alarm another; or
- (b) Makes repeated communications at extremely inconvenient hours or in offensively coarse language with a purpose to annoy or alarm another;
The bolding above is my doing; I find it amusing that a law written many years ago in the days of pulse dial phones or even telegraphs would specifically address the problems with anonymity. Later amendments to the statute have expanded it to apply to computer and other electronic communications as well.