Should doxing be illegal?
Several states are trying to crack down on the harassment tactic
How do anti-doxing laws work?
The doxing laws that have passed, or are under consideration, allow people to hold the doxers accountable for releasing their information and the consequences of doing so.
So far, states have taken three approaches: laws that allow victims to sue doxers, laws that make doxing criminal, and laws that protect certain groups of people, such as health care workers, from online harassment. Each approach has its quirks.
In June,Nevadapassed a law allowing doxing victims to pursue civil action if personal information is shared online with the intent of inciting harassment, stalking, or death.
This approach comes with some advantages, saysKendra Albert, a clinical instructor at the Cyberlaw Clinic at Harvard Law School. You don’t need law enforcement or a prosecutor to buy into the fact you’ve been doxed, and the burden of proving you’ve been doxed is lighter than it would be in criminal court.
However, when you’re being doxed by hundreds of people (some of whom may use anonymous accounts), it can be hard to identify just one person to sue.
“These laws are based primarily on the idea that you’re suing one individual, which may not be very helpful if what’s happening is a huge mob of people or multiple people are sharing the information,” Albert said.
Some states have made doxing a crime. In this case a doxer could face jail time or fines if convicted.
Nebraskais considering a billthat would make doxing a misdemeanor, or a felony if someone experiences death, mental anguish, or significant economic injury because of it.
It’s harder to prove a criminal case, but this approach does allow for more robust investigations to take place, said Albert. But that investigative power hinges on law enforcement taking action when people report doxing, or knowing what to do when online harassment does happen. That “has historically been a huge problem,” Albert said.
Finally, a handful of states have created hyper-targeted doxing laws protecting specific groups. Colorado has made itillegal to dox health care workers. Oklahomapassed a lawmaking doxing police officers a misdemeanor punishable by six months in jail or a $1,000 fine. It’s already a misdemeanor to dox reproductive health care workers or patients in California, but legislators there are nowconsidering a billthat would increase penalties.
There are also similarfederal protectionsmaking it illegal to share personal information on various classes of federal employees, jurors, and witnesses.
Could anti-doxing laws be abused?
Journalists regularly publish private information, like addresses or names. Voters might share a politician’s email address on Twitter. Both of these actions include sharing someone’s identity or contact information—sometimes against that person’s wishes. But they’re also tools to hold the powerful accountable, and concerns have been raised that doxing laws may be used to prevent or prosecute protected First Amendment activities.
The ACLU of Northern Californiavoiced concernsover California’s bill, which would increase penalties for posting photos or personal information for reproductive health care workers and patients, because it could infringe on “protected expressive conduct.” The Northern California branch of the ACLU didn’t respond to a request for comment for this story.
In Nevada, the local ACLU raised objections to an earlier version of the anti-doxing bill that would have made doxing a criminal offense, out of concern that the law could lead to government officials pursuing action against people engaged in protests or freedom of speech.
The Nevada branch of the ACLU didn’t respond to requests for comment for this story. When the law was passed, Holly Welborn, the policy director at the ACLU of Nevada, toldThe Associated Press, “[The statute] cannot under any circumstances be used by a government official—whether that is a police officer or a legislator—as a tool to punish innocent behavior and constitutionally protected speech.”
The idea that anti-doxing laws could be used to punish whistleblowers is a real concern, said Bruce Schneier, a fellow at the Berkman Klein Center for Internet & Society at Harvard University. “Any of these laws could be subverted by the powerful,” he said.
Lauren Krapf, the technology policy and advocacy counsel for the Anti-Defamation League, argues there are ways to craft anti-doxing laws that don’t harm whistleblowers. Under the proposed Nebraska law, doxing is only illegal if the perpetrator intends to cause harm by releasing information, or accidentally causes harm through recklessness.
“To the extent that these people are publishing information to share facts—and not acting with a level of intent that the information posted will be used to carry out criminal conduct such as death, bodily injury, or stalking—the Nebraska anti-doxing law would not apply,” Krapf said.
Requiring proof of malicious intent or negligence is an attempt to address free speech concerns. But it also opens a backdoor for bad actors to get around these laws. Doxers might attempt to disguise the fact that they intend to harm someone.
When Anglin’s followers doxed Gersh, she says, they tried to walk through this door. They peppered their threats with modifiers like “could” or “should.” Still, the evidence and the harm the doxing had caused her family remained overwhelming enough for a judge to award damages. And in Gersh’s case, it was abundantly clear Anglin and his followers were attempting to harass her.
Still, Gersh remains adamant that an anti-doxing law could have helped stop the troll storm in its tracks, not just because those new laws could lead to damages or even jail time for doxers, but because, in her view, they send a message. “Don’t think, haters, that you can hide behind a computer screen and not be held accountable for your actions,” she said.
This article wasoriginally published on The Markupby Emma Betuel and was republished under theCreative Commons Attribution-NonCommercial-NoDerivativeslicense.
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