In August 2014, a programmer named Eron Gjoni posted a 10,000-word exposé on his blog about video game developer Zoë Quinn, including screenshots of private emails, text messages, and Facebook messages. In the several posts he published about Quinn, Gjoni insinuated (without merit) that Quinn slept with a video game reviewer in exchange for positive coverage of her video game Depression Quest. Following Gjoni’s post, Quinn’s life quickly and drastically took a turn for the worse: hackers were able to break into one of her old social media accounts, subsequently circulating her private information—including her home address, cell phone number, and the contact information of past employers. She received hundreds of threatening messages targeting herself and her family members. Some participants in the witch hunt managed to find and spread sensitive photos taken of Quinn via internet “megathreads.” The publishing of Gjoni’s blog—and the turbulence that followed—is widely known as the beginning of “Gamergate,” a years-long harassment and hate campaign targeting prominent women in the gaming industry and various other online subcultures.
The specific form of cyberharassment used against Quinn and other women during and after Gamergate is known as “document dropping,” or “doxing.” Doxing is the weaponization of personally identifiable information usually to cause harm. Doxing victims have been subjected to harms including loss of employment, public humiliation, and criminal acts including stalking, injury, trespass, and even death. Over the past two decades, doxing has become a well-known harassment tactic on social media, particularly against historically marginalized individuals and groups. In an attempt to combat this harmful practice, several states have recently passed legislation or proposed bills that create civil or criminal liability for individuals who engage in online doxing.
Although relatively nascent, state anti-doxing statutes can play a role in preventing future harassment and threats of violence against historically marginalized groups, particularly women, in a digital age. As one tech policy expert has argued, “Doxing . . . [is] part of a continuum of sexual and gender-based violence . . . . We urge governments to review their existing legal frameworks and assess whether they provide adequate protection to victims of doxing. This requires taking into account the specific issues and risks experienced by women and girls.”
Indeed, preliminary evidence suggests that many doxing attacks are identity based. Considering the tangible offline risks associated with the online disclosure of private information, these laws have the potential to be a major step forward in protecting the rights of women to participate freely in the public sphere without fear of retaliation or harm.
Yet paradoxically, even as this wave of anti-doxing legislation has ushered in new protections for doxing victims like Quinn, these state statutes also create novel opportunities for abuse by Strategic Litigation Against Public Participation (SLAPP) litigants. Specifically, there is concern that the new laws will be used by plaintiffs to prevent protected First Amendment activity such as reporting and political advocacy. While some jurisdictions have attempted to assuage this fear through raising the intent standard for doxing, such that doxing is only illegal if the dox-er either intends to cause harm or does so recklessly, this does not necessarily protect individuals who hope to increase political and social accountability through doxing-related activities. In many cases, loss of employment or prosecution is the end goal of these kinds of public disclosures.
This worry—that anti-doxing statutes will dampen speech relating to matters of public concern—is particularly salient in connection with the #MeToo movement, which aims to create a network of solidarity for victims of rape and sexual assault and increase accountability for perpetrators of sexual violence and harassment. As the number of #MeToo participants has increased, so too has the number of retaliatory lawsuits filed against them. Alongside traditional tort claims like defamation and the intentional infliction of emotional distress (IIED), the anti-doxing statutes provide those accused of sexual violence with yet another means to chill victims’ speech.
This Comment serves as a first pass for understanding how state anti-doxing statutes—though intended in part to prevent heinous acts of cyberharassment and violence against women—can also be weaponized when women choose to participate in #MeToo political advocacy. Part I begins with an investigation into the historical insufficiency of legal protections for victims of rape and sexual assault in the United States. It shows that, notwithstanding efforts at reform, existing structures still maintain a bias against women that overwhelmingly prevents them from seeking effective legal recourse for sexual violence through a formalized process. Next, Part II explains the connection between these legal shortfalls and the #MeToo movement, demonstrating at a high level the rationale for why victims might choose to engage in #MeToo-related activities rather than initiate a formal proceeding. Part II further explores how alleged perpetrators of sexual misconduct have responded to the #MeToo movement thus far; specifically, by engaging in retaliatory SLAPP litigation against their victims via largely unsubstantiated civil defamation claims. Finally, Part III inspects some of the recent anti-doxing statutes passed by state legislatures. Based on lessons from the first wave of litigation brought under these fledgling laws, it identifies how victims of sexual violence may be at risk of liability for doxing if they choose to come forward with their experiences, considering both the availability of potential anti-SLAPP defenses and statutory exemptions. This Comment concludes with recommendations for policymakers who are considering introducing or amending anti-doxing statutes in their jurisdiction to better inoculate such laws from misuse against victims of sexual violence. These recommendations include considering the relative strength of a jurisdiction’s anti-SLAPP protections and, to the extent those protections are lacking or non-existent, creating specific statutory carve outs for individuals who dox in furtherance of a matter of public concern.