Outlaws: The legal framework for online harassment of the LGBTQ community is too lax, privacy expert says

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This article has been updated in light of the recent Supreme Court ruling on LGBTQ rights.

Almost three-quarters LGBTQ individuals have reported being personally attacked or harassed online, according to a global survey conducted by vpnMentor. Indeed, cyber-bullying and harassment have been a growing problem for the LGBTQ community over the last decade, and the current legal framework offers few options of recourse for victims.

Ari Ezra Waldman, Director of the Innovation Center for Law and Technology at New York Law School and an expert in privacy law, has studied this area for the last decade and advocates for fixing the fragmented regulatory and legal environment. In his upcoming book, Privacy’s Vicious Cycle, he explores why so many of the social technologies we use today are not designed with privacy in mind. We spoke with Waldman as part of our new Outlaw content series and virtual webinar series.

The LGBTQ community faces unique risks

Many people face a distinct lack of privacy online and on social media, from Facebook to online dating apps. But queer people face unique burdens. First, members of the LGBTQ community are more likely to turn to digital spaces to build community because their physical communities may be hostile. Online spaces provide access to role models, friends, and romantic relationships, especially when an individual lives in a place where there are few other queer people.

Second, while using social media, people with a stigmatized identity, in general (not just LGBTQ people), are minority voices. Majority voices — the cis-gendered, hetero, masculine voices — still determine the norms of what is acceptable. “Because these platforms are not regulated when it comes to harassment, marginalized populations and the LGBTQ community face the challenges of being a minority voice generally, and minority voices are hounded into silence,” Waldman explains.

Third, most cyber-harassment is gendered, meaning that many attacks are on people who do not conform to stereotypical heteronormative expectations. “Gendered attacks on gay people involve attacks on their perceived lack of masculinity or the use of ‘gay’ as a slur,” Waldman says, adding that these attacks are common and, as such, queer people enter into a social media world that is hostile to them.

Register for the Spectacular Bodies: Privacy, Public Identity & LGBTQ2+ Personality webinar on June 18

Worse yet, each layer causing harm perpetuates the next, explains Waldman. “It creates a spiraling emotional harm that results in suicidal ideation at higher rates than of any other group,” he adds. In addition, queer people who experience online harassment have far lower economic, social, and professional success.

Waldman describes how LGBTQ individuals are harassed:

  • “Catfishing” gay teachers is a common form of harassment. It means that an abuser creates a fake identity to target a LGBTQ educator for abuse, deception, or fraud. In many instances, the abuse involves threatening the queer person with revealing their sexual orientation to their boss.
  • Offenders impersonate real gay people online and then send dozens of people to their home or workplace asking for sex.
  • Harassers use social media to threaten gay people with outing them or sending embarrassing photos to their bosses, extorting and exploiting them online.

Ari Ezra Waldman

Further, until June 15, there were no legal protections against employment discrimination on the basis of sexual orientation in 26 states and at the federal level. On that day, the Supreme Court  ruled that a longstanding federal law barring workplace discrimination also protects gay and transgender employees.

Despite the ruling, online harassment and threats against LGBTQ people still take on a dangerous tone. The state of instability caused by institutional discrimination makes being open about one’s sexual or gender identity risky, and it also makes LGBTQ people easy targets for extortion, threats, and harassment.

Fragmented legal landscape limits positive outcomes

According to Waldman, online harassment “is an amplified problem for LGBTQ people because the legal environment… is so full of holes.” Another complicating factor is that too many people still believe that online harassment is just words, negating the emotional and mental abuses such victims experience.

Although the torts of harassment and intentional infliction of emotional distress have been around for years, Waldman explains, but these approaches aren’t always successful for victims of online harassment. “Some attorneys, like Carrie Goldberg of Brooklyn, are incredibly creative in addressing online harassment harms through the legal system. We need to keep bringing cases on products liability, IIED, and harassment until the common law adapts.”

There are laws that deal with certain parts of the issue, however. For example, there are existing harassment laws that can be used to address online bullying but the difficulty in gathering evidence of online messages is striking. “It’s really hard to gather evidence and prove that online harassment is a part of a pattern and practice that is harassment, which is what the law requires,” states Waldman. Nonconsensual pornography laws can also address the exploitative use of intimate images and videos, but some state “revenge porn” laws are weak and there are no national protections.

Social media platforms need better privacy protections

To improve the legal landscape more broadly, companies need to implement better protections of their users’ data, Waldman believes. Unfortunately, the laws governing corporations who own social medial platforms are lax. “One of the biggest examples of the law not protecting people from harassment is Section 230 of the Communications Decency Act, which immunizes platforms from pretty much any legal liability associated with the tortious conduct of third parties on their platform,” he says.

This means that if someone is harassed on Facebook, for example, the company is not liable; and often, market pressures are not sufficient to push the company to act. “They certainly haven’t acted yet, and those market pressures already exist.” As a result, there is little legal incentive for a company or platform to do anything about users’ behavior that harms others, especially minorities.

“And that needs to be changed,” Waldman says. “Section 230 absolutely needs to be amended to give companies at least some incentives to protect against harassment.”