Defragging Feminist Cyberlaw
37 Berkeley Tech. L.J. 1 (forthcoming 2023)
63 Pages Posted: 7 Sep 2022 Last revised: 12 Oct 2022
Date Written: July 26, 2022
In 1996, Judge Frank Easterbrook famously observed that any effort to create a field called cyberlaw would be “doomed to be shallow and miss unifying principles.” He was wrong, but not for the reason other scholars have stated. Feminism is a unifying principle of cyberlaw, which alternately amplifies and abridges the feminist values of consent, safety, and accessibility. Cyberlaw simply hasn’t been understood that way—until now.
In computer science, “defragging” means bringing together disparate pieces of data so they are easier to access. Inspired by that process, this Article offers a new approach to cyberlaw that illustrates how feminist values shape cyberspace and the laws that govern it. Consent impacts copyright law and fair use, the Digital Millennium Copyright Act, criminal laws, and free speech. Each of those laws is informed by the invasive act of sharing nonconsensual intimate imagery, better known as “revenge porn.” Two other laws, the Americans with Disabilities Act (ADA) and the recent amendments to Communications Decency Act (CDA) Section 230, are crucial to promoting web accessibility for all people, including disabled people and sex workers. And safety influences privacy law and the Computer Fraud and Abuse Act, which affect the rights of pregnant people and targets of online harassment. This Article concludes that feminist cyberlaw is a new term, but feminism has always been foundational to making sense of cyberlaw.
Keywords: cyberlaw, feminism, technology, consent, copyright, nonconsensual intimate imagery, revenge porn, accessibility, disability, FOSTA/SESTA, privacy, surveillance, abortion, Computer Fraud and Abuse Act
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