Table of Contents Introduction I. The Problems of Doxxing A. The State(s) of Doxxing Prohibitions B. University Approaches to Doxxing II. Free Speech: Online and On Campus A. Doxxing as Threat B. Regulating Campus Speech III. Recommendations A. Why Universities Should Prohibit Doxxing B. How Universities Should Prohibit Doxxing Conclusion
Introduction
I suppose it's theoretically conceivable that at some unknown future time information technology might get so powerful that [dignity, freedom, and individuality] will indeed be threatened with 'destruction' by [online] speech....
--Eugene Volokh (1)
Online activity often leads to serious offline consequences, as social media can easily direct mass anger toward individuals caught in the crossfire of cultural and political debates. (2) Yet legal scholars have not yet paid much attention to doxxing (3)--the revealing of "information about (an individual) on the internet, typically with malicious intent." (4) On campuses throughout the country, university administrators are confronting a dilemma posed by doxxing: how to uphold free speech principles while protecting students and staff from threats to their safety, psychological well-being, and reputation. This Essay explores how public universities--and private universities bound by the First Amendment--can constitutionally proscribe doxxing. Part I provides background on doxxing and how states and schools have begun to approach the phenomenon; Part II introduces key principles which bear on the constitutionality of campus doxxing regulations; and Part III argues why universities should seek to eliminate doxxing on campus--in accordance with their commitments to freedom of expression and academic inquiry--before proposing how they can do so via thoughtful implementation of anti-doxxing policies.
I. The Problems of Doxxing
In recent years, doxxing has attracted increasing attention as a social phenomenon, (5) yet it remains relatively under-theorized as a legal one. This Part begins, therefore, by presenting some of the central "problems of doxxing" confronting legislatures, judges, and university administrators, before exploring how states and schools have thus far responded to these challenges. This context, in turn, will prove crucial in understanding both the legal and practical dilemmas posed by doxxing on campus, as laid out in Parts II and III.
Universities have become focal points for debates around doxxing, as viral campus controversies increasingly turn students into the unwilling focal points of online outrage. (6) The following hypothetical--based on recent reporting and the author's conversations with targets of doxxing--captures some of the difficulties in defining and responding to doxxing in schools:
Ahead of a major election, Lenora, a sophomore at a well-known university, invites her classmates to an event her student group Left of Liberal, is hosting: "The Cost of Voting Blue." Lenora, a vocal campus activist, hopes her event will convince her classmates to sit out the election, sending a message to the Democratic Party that they cannot take the youth vote for granted. Milton, president of Students for Responsible Progress, is incensed by Lenora's message and takes to his organization's social media accounts to denounce her event, writing in part: "For too long the Reasonable Middle has remained silent. Out-of-touch activists like @left_lenora are imperiling democracy and deserve to know how that makes us feel! Drop her a line at lenora@university.edu, and here is her picture in case she dares show her face on campus after this despicable stunt." (7) Milton's post strikes a chord and is circulated widely over the internet, inspiring many other posts and articles which contain fierce criticism of Lenora, alongside her photo, email, online handles, and even her home address. Soon enough, hateful messages--including death (8) and rape (9) threats--inundate Lenora's inboxes, and she becomes depressed and scared to leave her room. A national group, Mainstream Revolution, gets involved, too chartering trucks which display criticisms of Lenora to drive around near her parents' house and her campus residence. (10) Lenora cancels her event, shuts down her online life, and moves in with a friend off-campus to complete the academic term online Although she is never physically harmed, she becomes fearful of strangers (11) and worries she will struggle to get a job. (12) Milton, meanwhile, remains defiant, continuing to post about Lenora and writing in an op-ed: "Such is the price of public participation in a democratic society. It is unfortunate some people are so vicious online, but, at the end of the day, I feel justified in calling attention to this critical issue."
This hypothetical highlights several tricky issues. First, what, if anything, is sanctionable in Milton's conduct: publicizing Lenora's personally identifying information? Doing so in conjunction with fierce criticism of her? Continuing to target her as she suffers intense reprisals from third parties? These questions of conduct interrelate closely with questions of intent: What mens rea can be inferred from Milton's actions? Could or should Milton have foreseen the results of his post? And, even if he did, should his publication nevertheless be protected as political speech? These are some of the quandaries facing university administrators, but they are far from alone. State legislatures, law enforcement officials, and judges, too, are increasingly called upon to define doxxing, and then identify it in messy real-world circumstances.
A. The State(s) of Doxxing Prohibitions
More than a dozen states have passed generally applicable laws prohibiting doxxing or targeting doxxing-like behavior, efforts which may be instructive to schools seeking to do the same. (13) Comparison of these state laws reveals that: (14)
* Most states define the actus reus for doxxing broadly. Missouri, for instance, outlaws posting the "name, home address, Social Security number, telephone number, or any other personally identifiable information of any person on the internet" under certain circumstances. (15) As for the means of communication, it appears that only Oregon's (16) and Virginia's (17) definitions of doxxing encompass non-electronic publications, while Arkansas may be unique in limiting its definition to publications on social media. (18)
* States differ more widely in how they define doxxing's mens rea element, ranging from requiring intent merely to disrupt an "individual's electronic communication," (19) all the way to threatening "great bodily harm or death." (20) Most state laws fall between those extremes, though, such as Florida's, which outlaws inciting third parties to "threaten or harass" someone such that they have "reasonable fear of bodily harm." (21) And Washington's intent standard for doxxing appears to be the most thoroughly defined. (22)
* Legislatures have not explicated in the text of these statutes how such restraints on speech are constitutional, though some include caveats such as Alabama's provision that its anti-doxxing law does not limit "[p]olitical speech protected by the First Amendment." (23)
Overall, California's approach to criminalizing doxxing is representative. The state's Penal Code Section 653.2 makes it a misdemeanor to:
[W]ith intent to place another person in reasonable fear for his or her safety, or the safety of the other person's immediate family by means of an electronic communication device ... and for the purpose of imminently causing that other person unwanted physical contact, injury, or harassment, by a third party, electronically distribute] ... personal identifying information, including, but not limited to, a digital image of another person ... which would be likely to incite or produce that unlawful action.... (24)
Since its passage in 2008, (25) Section 653.2 has apparently never been challenged on First Amendment grounds, and People v. Shivers appears to be the only published case examining the statute in any depth. (26) In Shivers, a California court of appeals sustained the conviction of a defendant who published tweets about his ex-wife, falsely accusing her of threatening him, while encouraging people to call the police on her. (27) The court found that the defendant's intent could be ascertained from circumstantial evidence--including the nature of publishing public messages on a social media website--and therefore that he should have reasonably known that his posts "were likely to incite" others to contact, and potentially harm, his ex-wife. (28)
The facts of Shivers may differ from those likely to occur on campuses. But the case is still a useful--if rare--example of a court applying an anti-doxxing statute in a way that recognizes the power of the internet to transform a rash statement into a real reason for its target to have concern for her safety. Schools are not equipped with the same investigatory and judicial resources as states, however, and, perhaps as a result, have so far primarily sought to deal with doxxing without relying on state criminal or civil law analogues.
B. University Approaches to Doxxing
In the wake of highly publicized campus controversies, some universities have formed task forces and compiled resources to support members of their community impacted by doxxing and other forms of online harassment. (29) Professors, (30) university leaders, (31) and students (32) are also increasingly speaking out against these deleterious campaigns. Such responses can be considered reactive efforts to change discursive norms on campus and protect students from the worst effects of internet infamy. While these are valuable--and potentially transformative--interventions, this Essay focuses on official university speech policies, on the theory that proactive prohibitions have a greater chance of deterring doxxing, thereby reducing the...
