As a dedicated defamation law firm, reputation is our business. One of the most common threats to reputation that we see on social media is doxxing.
WHAT IS DOXXING?
Doxxing is perhaps the most insidious threat to individual privacy on the internet. The term “doxxing” is internet slang derived from the word “document” when used as a verb. It means to “document” somebody. Typically, doxxing occurs when someone’s personally identifying information is exposed online in a non-consensual, individually targeted manner.
Keep in mind that doxxing is distinct from a data breach. Data breaches at hospitals, banks, government agencies or large corporations are usually committed wholesale, and indiscriminately, against a large number of consumers at once. There is often a financial motive or a human error in a data breach, and an existing law that the data breach violates. However, doxxing differs from data breaches in that the exposure of personally identifying information is targeted at an individual to harass, shame or intimidate them.
Most commonly, political activists dox their adversaries by de-anonymizing them on social media.
Young adults may use doxxing as a way to harass and intimidate their peers. Doxxing may also take the form of revenge porn, or social media influencers directing their followers to harass someone with intimidating messages. It could also involve false or opportunistic accusations made online for personal reasons.
Is Doxxing Illegal?
Doxxing, by and large, is not a legal term of art. Only three states—Alabama, California, and Illinois—identify doxxing as a stand-alone crime. There is significant variation among these three statutes, but in general, each one prohibits the distribution of personally identifying information over the internet with intent to cause harassment.
Fourteen other states have laws that criminalize doxxing but only protect certain classes of people such as judges, election workers, or first responders. Most other states just have statutes against stalking and harassment that could potentially be enforced against doxxing, but were not drafted with doxxing or the internet in mind.
In contrast, four states states—Washington, Oregon, California and Illinois—have enacted legislation that provides a civil cause of action for plaintiffs who have been doxxed.
Do Anti-Doxxing Statutes Violate the First Amendment?
Obviously, publishing someone’s personally identifying information, however defined, is a form of speech. The U.S. Supreme Court has never made an exception for doxxing under the First Amendment. This means that anti-doxxing statutes are susceptible to being challenged. But are they susceptible to being overturned?
That depends.
California’s civil anti-doxxing statute (CA Civ Code § 1708.89) is crisp, suscinct, and requires that the doxxing information be disseminated with intent to elicit stalking or criminal harassment.
In Washington, the statutory language (RCW 4.24.792) is exceedingly broad and convoluted. It proscribes a potentially huge amount of speech, and includes a bewilderingly long list definitions, as well as statutory defenses intended to sterilize the law from First Amendment scrutiny.
But the Washington statute also disallows, as a defense, the fact that the information published may have previously been published by the putative victim of the doxxing. This seems to raise constitutional issues by implicating the intent, and thereby the ideological content, of these publications. It may even run afoul of Washington’s own anti-SLAPP statute (RCW 4.105). For example, if you publish a public profile on LinkedIn, and someone on Instagram says “look, here’s his LinkedIn”—does the First Amendment allow states to create a tort claim against that? There may be red flags there.
Indeed, in all states, doxxing still exists in a moral and legal grey area. In fact, we would argue that doxxing will continue to exist in a moral grey area from the perspective of the general public. This is for three reasons:
First, because doxxing results from the same mundane social chatter and gossip that human beings have always engaged in, extrapolated to the internet (with all its record keeping functions and potential for widespread publicity). In effect, doxxing is just a newer and more intensive version of very ancient shaming behaviors that have rarely been criminalized before.
Second, because doxxing is just old-fashioned gossip and scandal (but filtered through new technology), it only appears wrong to us when our personal biases and political beliefs bring us to sympathize with the victim. Whereas, if the victim is someone we dislike or disagree with, the same kind of doxxing may appear to us to be deserved, or even a public service.
Third, because oftentimes the news media intrinsically engages in doxxing by targeting exposure and coverage at specific individuals. Thus, there can be a great deal of overlap between the activities of private individuals who engage in doxxing attacks, and the news coverage that may result from such online activity. If someone films you in public in a harassing manner and publicizes the footage to shame you, the media may pick the story up and run with it if they think it is newsworthy. At that point, the individual harassing you might be considered to have doxxed you; whereas the media is just reporting the news by publicizing the story.
Can You Sue Someone for Doxxing?
In Washington state, you can sue someone for doxxing you—but buyer beware. As we’ve already discussed, Washington’s anti-doxxing law may be susceptible to First Amendment challenge.
Most states do not provide a civil cause of action for doxxing. But many states offer some form of protection that may overlap and afford civil relief against doxxing. This may include:
- Defamation liability, if the doxxing behavior involves a component of lies about the victim
- Protective orders against stalking or harassment as applied to online activity
- Invasion of privacy liability, if intimate information is being circulated
- Commercial misappropriation, if the doxxing coincides with a commercial gain or commercial purpose
- Interference with communications liability, if you were hacked or digitally eavesdropped upon.
For these reasons, if you are being doxxed, you may have grounds for a lawsuit against the person who is doxxing you.
Although civil law affords us these narrowly defined protections, there is a widespread misconception that the law affords us a generalized right to privacy. Unfortunately, that is not really the case. While the Fourth Amendment protects us from warrantless searches and seizures by the government, that protection does not go further. Any other right to privacy enshrined in law is going to be found only under very narrow and specific provisions.
However, with a doxxing lawyer in your corner, it is possible to fight back and put a stop to doxxing and invasion of privacy. Doxxing can have devastating effects on your personal and professional life. If you are being doxxed, you want a lawyer who has experience in doxxing law. As we have seen, legal matters involving doxxing can present a variety of options.
Late Night Law® is a dedicated defamation, privacy and social media law firm. If you are the target of doxxing, defamation or cyberstalking in New Mexico, in Washington, or Texas, contact us at (505) 225-2623 to schedule a free consultation with a defamation attorney today.
This article is not legal advice, and does not create an attorney-client relationship between the reader and Late Night Law. Please consult an attorney for individualized advice if you have a legal matter.
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