How Online Harassment Led to a Historic Court Case

John Paul Rollert: As we’ve recently all gone through this collective COVID experience, I’ve been increasingly thinking about what it means to live your life online. Now, for most of us over the last year, that’s meant spending all of your work hours on Zoom, an experience that can expose you to a lot of trivial considerations, such as: Will the cat run into my picture when I’m talking to my boss? Or, when will I get an honest to god haircut? But of course, as we all know, when you spend your waking hours online, when you have that kind of increased online presence, it can expose you to far more serious and grave concerns, in part because you create this online identity, and that identity is subject to forces that are often far beyond your control that give rise to considerations that can lead you certainly to lose sleep at night.

Because I’ve been thinking a lot about these matters, I was really excited to speak to an old friend, Brittan Heller. Brittan works at the intersection of law, technology, and human rights. She’s an expert in content moderation and the movement from online conduct to offline violence. She previously founded the Anti-Defamation League Center for Technology and Society, is an affiliate of Harvard’s Berkman Klein Center for Internet & Society, and is counsel at Foley Hoag in global business and human rights and heads up their A.I. practice. Brittan, thank you so much for joining us.

Brittan Heller: Thank you for having me.

John Paul Rollert: This interest in the intersection of law, technology, and human rights was initially one that you didn’t so much pursue as unfortunately pursued you. Can you take us back about 15 years and tell us the harrowing story of how you initially got pulled into this particular area of interest?

Brittan Heller: Everybody always asks how it started, and it kind of started like most things do. There was a young man when I was in college at Stanford who really liked me, and I didn’t return the sentiment. He was in my LSAT study group, and eventually I got into his dream school, Yale Law, and he did not. Immediately after that, “A Stupid Bitch to Attend Yale Law” showed up as a posting on a website, and I’m not gonna name the website because I prefer not to give them more traffic. I looked at it, and it was rather bizarre. The claims were really weird: that I pretended to be a minority, that I pretended to be Black, that I was a Muslim terrorist, that I bribed my way into school with family connections, or money, or sexual favors, that I’d had a lesbian affair with the dean of admissions— just really bizarre stuff. Somebody also pretended to be me and responded back to the allegations, which was actually more damaging because they didn’t paint a very flattering portrait.

I contacted the people who ran the website and I asked them if they’d take it down, and they ignored me. I then decided to just move on and ignore it. When I went to law school, I was trying to get a summer associate job and was told that I needed to clean up my online presence. So I googled myself and saw that it had started with one person’s post and it had expanded to hundreds.

John Paul Rollert: So Brittan, it sounds like you’re in this position where you’re just about to go to law school, and you find yourself the subject of this online bulletin board. You ask the people who run the bulletin board to take down your information. They refuse to do so. And for a while, it’s just something that leaves your mind to a degree, until a year later when you begin applying for law jobs, it boomerangs. And what you quickly find is that the subject of this malicious online discussion begins confusing who you are with this, kind of, created online identity. And it begins to have, for you, real professional repercussions.

Brittan Heller: I think that’s exactly right. I had gone to law school to do human-rights law, specifically international criminal law, and found that this was actually getting in the way of me getting jobs in the American system. And if you can’t get experience in the American system, you can’t get other experience. It progressed. It got worse as time went on. I contacted the people who ran the website again. I asked them if they would take it down, and gave them one line of code and said, if you put in this one line of code, it will de-index it from Google. And you can keep saying whatever you want, what do you say? And their response was, “Freedom of speech. You’re gonna have to sue us.” So I did.

At around the same time, they had started this “Girls of the Top 14 Law Schools” contest. And with that, they encouraged people to follow around female students and take pictures of them so they’d own the copyright and they could do whatever they wanted. My picture ended up on crime-scene photos because they were quite angry at me for filing suit and annoying them. But other people weren’t as lucky. I got pro bono counsel from Stanford and Yale. I had a public-relations firm volunteer to help. I had a cybersecurity researcher volunteer to help with attribution. He later became the CSO of Facebook. And we announced the suit on the front page of the Washington Post. So it was very, very public for about two and a half years.

John Paul Rollert: So you’re at law school. And now you find yourself in the middle of a high-profile court case that seems to bring up the tension between, on the one hand, the First Amendment’s guarantee of free speech, and on the other hand, this desire that we all have to control our personal identities. And that’s, of course, a very academic way of putting things. But I’m curious, for you personally, how did this experience affect you? It’s clearly something that took up a lot of time, money, effort, energy, mental bandwidth. And on a day-to-day basis, how did being in the middle of this actually affect you in your life at law school?

Brittan Heller: It was one of the hardest things I’ve done. I started off being very, very social and very involved in student life at Yale. I think I was on . . . I was an elected representative for the class. I would go out to parties and dinners. And I was very, very active in my classes. I participated, and that all ground to a halt. Some of the people who were doing the harassment were classmates. There would be a running commentary on the website of everything I said in class, what I was wearing, what I had done the night before sometimes, or what they had assumed I had done the night before. It wasn’t true most of the time. And it felt like, it felt like living in a panopticon.

It also got worse before it got better. People started making threats of physical and sexual violence, to the point where law enforcement had to get involved. They also put my personal information, my phone, my email, my class schedule, where I lived, all of that information online and encouraged people to teach me a lesson and make me pay. I ended up having, I remember having the FBI escort me in a finals one time.

You don’t want to read the comments. And everyone said, “Turn off the comments.” And the school even said, “Turn off your computer screen.” And that’s how you deal with this. The fact that it had kind of crossed the line into real-world threats I think changes the conversation because the First Amendment does not protect threats of violence. That is an exception in every legal system that has freedom of expression–based laws.

John Paul Rollert: It sounds like you’re clearly in this situation that starts out bad and at some point begins ratcheting up to something far worse. And of course, at the same time, because of this sense of being under surveillance, that anything you say or do at the law school, or that people might assume that you would say or do, will quickly find its way online. And honestly, I can’t imagine the kind of personal claustrophobia that leads to, but clearly at some point you decided that you had enough, that you had to do something, that contrary to what some people were telling you to do— “Just forget about it.” “Turn your computer off."— you felt you had to fight back. Can you tell us a little bit about that moment, and what for you brought you to that decision that you couldn’t just stand back and take it anymore, but that you had to move forward and try to attempt to find a way affirmatively to stop what was happening?

Brittan Heller: Filing the case was almost like a distancing exercise, where it gave me the ability to use an emphatic no. And most of the time, when people would talk about leadership or social-justice work, it was about using your yes, being affirmative and going out there. And that’s how leadership was defined. And I learned the power of saying no. It was scary.

It also meant legally that we were kind of on untested ground with this case. It was “Jane Doe” versus pseudonymous defendants “Hitler, Hitler, Hitler” and “Cheese-Eating Surrender Monkey.” That really hadn’t been done either. Lots of interesting constitutional issues. The First Amendment didn’t really . . . it didn’t really concern me as much because I was bringing the suit to test whether or not an individual who was experiencing this type of harassment could get redress under the current structure of the law. And the answer was immediately no because I had all of those resources and access to and the interest of the media. Most people who go through this, it’s a very private, painful experience.

I think I got over $1 million of pro bono legal services as well. And people don’t have access to that when it normally happens to them. So everyone assumed I was challenging Section 230 of the Communications Decency Act of 1996, which provides intermediary liability. That means that Google, to a blogger, are not responsible for the content that other people post on their website. It actually wasn’t designed to test that. We had good legal theories behind what we did. The people at Harvard called me “the girl who wanted to kill the internet,” so it wasn’t just personally painful; it was a little professionally harrowing as well.

John Paul Rollert: Brittan, when you began thinking about filing a lawsuit, which of course is somewhat of an extreme measure, I’m curious, did you weigh out the pros and the cons of taking that action? And how did you figure out that ultimately this is precisely what you had to do, notwithstanding the downsides of such aggressive measures?

Brittan Heller: I was a law student and I knew that there would be hurdles in a case. I also understood that it was gonna get worse before it got better if I went public with it. And I decided that I had an obligation to file because most people, when this happens to them, will not have legal standing to file a case because they won’t have the type of damages that you need to prove to a court. And I did. It felt like if I didn’t do it, who would? It felt like something that needed to be done.

I knew I could handle it. I was in a position of privilege being a Yale Law student. So people would listen to me and would follow the case in a way that they wouldn’t if it was an average person who didn’t have that sort of connection. I’m very proud of it, but at the time I was very uncertain. America’s Most Wanted came to my house and disguised the apartment to have me look anonymous. And just with the voice and the hair and the backdrops, and eventually people figured out who I was. At the beginning, there’s a bit of a security blanket being a Jane Doe. But once it was known that it was me, that’s when I felt I had to be quite brave about it because I knew it was going to define me and my work and potentially the way that the tech industry deals with this type of situation.

John Paul Rollert: So essentially we’re talking at this point about 15 years ago, long before any of us had ever heard of Twitter trolls or had good reason to worry about them. In this case, you are being harassed and even stalked by people who are participating in an online message board. And they’re writing under these ridiculous pseudonyms like “Hitler, Hitler, Hitler.” And they’re saying things about you that are creating an online identity around Brittan Heller that doesn’t reflect the actual person whatsoever. So finally you decide to take matters into your own hands and you pursue this novel litigation strategy. And I was hoping you could tell us a little bit about the experience of going into litigation, and to the degree that you can, what exactly came of it.

Brittan Heller: When you file a lawsuit, nobody really wins. It was constantly covered by the Wall Street Journal law blog and papers all over the country. Filing the lawsuit meant that there was another microscope to this experiment.

I ended up settling the case after about two and a half years. The answer to the original impact litigation questions was no. Normal people could not get redress under the current structure of the law.

Thankfully, this was before Twitter trolls, but it doesn’t mean that these trolls were any less virulent. When I settled with the people, we were able to identify them—not all of them, but a good amount. As part of settlement negotiations, I met with them. So we would communicate. I remember this one kid. He was a kid. I think he was 17. And his parents were paying for his legal defense with their homeowners insurance. And it was very surly. So I remember that I said to him, “Hello, my name is Brittan. I see here that you, you wrote that you wanted to gouge out my eyes and skull fuck my corpse. I think we should be introduced first.”

The people that we identified were very surprising because they made such personal comments. I assumed that most of them would be people that I knew who had sort of a personal vendetta. They ranged in age from 17 to retired. And it was men and women, all different professional backgrounds. And from a high-school student to a postdoctoral scholar in pediatric AIDS medicine.

They all said the same thing. They said, “I didn’t realize what I was writing was impacting you in your real life. I didn’t think about that. It was a game. It seemed like a game. I didn’t realize what I was doing was impacting somebody on the other side of the screen. And I’m so, so sorry.”

John Paul Rollert: So for them, it was basically like you weren’t a real person, almost as if what they were maligning on the website was not an actual person with this fictional identity they created, but someone who didn’t even exist in the first place, as if they couldn’t imagine that there was actually a human being on the other end of everything that they were saying.

Brittan Heller: It crossed from online to offline antics as well. I remember that there was a law firm that gave me a summer job and took a chance on me. And somebody penned a, what I like to refer to as a poison-pen letter, describing my crimes against men. And they sent this to every professor at Yale whose email address they could get in the law school, and all of the managing, hiring partners at the firm that I was working at. It was bizarre and scary, but it made me feel like I couldn’t be safe anywhere I went. They copied me on it. So I knew exactly what was happening. It just emphasized for me how out of control I was in the situation. And so it felt, it felt like, like being . . . It felt like being in a horror movie, actually.

John Paul Rollert: Now, Brittan, insofar as your litigation efforts were ultimately successful, and you had a chance to confront these online trolls, it’s quite clear in hindsight that this particular experience had a profound impact on the professional choices you made after law school. And I was hoping you could draw a through line for us between this litigation experience and the remarkable career you carved out for yourself afterward.

Brittan Heller: I was worried that this was going to take me away from human-rights law and be a big distraction in the same way that it had disrupted my education. But it ended up meaning that I was the first person in human rights to be thinking about these issues related to online activity. And it ended up . . . I was worried that it was gonna be a professional mar, and it ended up putting me on the vanguard.

Immediately after law school, I worked at the International Criminal Court and then did a series of human-rights fellowships overseas and found myself focusing on the impact of technology on people’s lives. When I came back to the US, I became a prosecutor and I worked in the human rights and special prosecution section at the DOJ, which is the Nazi-hunting section. And I ended up taking a special role as the computer hacking and IP specialist, CHIP, in the office to learn about electronic evidence and to basically spearhead all of the online investigations that we were doing.

I started the Center for Technology and Society. I had a focus explicitly on these type of activities. I took pro bono clients who were experiencing harassment and used my knowledge of how this works to get them the best solution possible. Danielle Citron wrote a book about the case called Hate Crimes in Cyberspace. And when I started meeting with tech companies professionally, I remember I went to one of the major tech companies, and they all have to read the book before they start working in trust and safety. So they knew who I was and what had happened, but it also gave me credibility.

I’ve worked on these issues as an attorney, as a government official, on the domestic and the international front, as a victim, and as an advocate. So it is very comprehensive. Now in my practice, I haven’t met anyone who has a similar legal practice to mine, that is centered around freedom of expression but integrates freedom of expression and public safety. In my practice now, I work with technology companies—some of the largest ones down to startups. And I help them develop content moderation systems and think about policies and procedures before there’s a problem. It also has led me to think a lot about virtual reality, the specific features of that medium that make online harassment feel real. It feels like it’s really happening to you. It implants in your head like a memory. So I’m looking at how emergent technology is going to be another turn of the screw.

John Paul Rollert: I’m curious, Brittan. You obviously had this incredibly traumatizing experience. And yet you ultimately turned it into an anchor for a broader and highly successful professional practice. And I’m curious if there is something empowering about that, both for you but also for the people that you work with. I mean, in many respects, you have a special credibility having been subject to online harassment long before anyone had ever heard of, again, Twitter trolls. This is an area which you have a kind of special experience with. And I’m curious when working with clients when counseling people, is there a special power that comes with that?

Brittan Heller: I think there is power in it. I can go to people and say, “I understand exactly what you’re going through.” Very few people do. Very few people understand what it’s like to open up a screen and read every comment you’ve made in class and have people responding to it, basically trying to use your own words against you in everyday life. Or when you’re walking home, and they’ve put your address, to wonder if someone will be waiting for you there. The experience of going through something like that changes you. I try my best to convey that to the companies and get them to be proactive about it. And I think that’s also a very unique angle on it because most lawyers will focus on litigation. But what I do now is almost like it’s on the preventative end of the spectrum.

John Paul Rollert: For those of us who have spent the last year living online in a way that we could have never imagined before COVID, but who are also sensitive to these developments in information technology like artificial intelligence or augmented reality, is there some lesson that you take from your experience that you could share with us, as we look ahead to these developments, regardless of if we’ve had the kind of traumatic experience you’ve shared here, is there some kind of central lesson you would have us keep in mind looking ahead?

Brittan Heller: Absolutely. The most important thing that I learned, and I strongly believe is still relevant today . . . This taught me the need to rehumanize technology. The distance that people described—"I didn’t conceive that there was someone on the other side of the screen"—that touches basic human empathy. But I think it can also be addressed through smart design choices and smart policies and flexible policies. I advise companies on the things that you can do to remind people that there is a person on the other side of the screen. My practice is a mix of social psychology, design, and breaking people’s toys, in addition to the law. It’s very fulfilling but it also touches back to the core of why I became a lawyer in the first place. It’s centered around human dignity. I view everything that happened as being a spectrum, where I started off looking at human-rights abuses, and then through this experience, really take a proactive and predictive viewpoint of it. I like to think that I’m the Cassandra of the internet.

John Paul Rollert: Well, of course it was the fate of Cassandra never to be listened to by the ancient Trojans. But I think the lessons that you’ve shared with us today, and particularly the reminder that we need to remember that human face on the other end of any of our online activity, are lessons that we should take to heart. And I’m grateful to you for sharing them. Brittan Heller, thank you for joining us today.

Brittan Heller: Thank you for having me. This was really great.