Defragging Feminist Cyberlaw

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 responds to feminist issues, creates tension with feminist values, and urges the emergence of feminist cyberlaw practice. 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 the feminist issues of nudity, sex, harassment, and the feminist values of consent, accessibility, and safety shape cyberspace and the laws that govern it. Nudity highlights the impact of consent on using subjects’ images in copyrighted photographs, removing nonconsensual intimate imagery with the Digital Millennium Copyright Act, and criminalizing nonconsensual intimate imagery distribution while protecting free speech. Sex unveils the importance of accessibility by invoking the Americans with Disabilities Act to promote equal web access and the FOSTA/SESTA amendments to Communications Decency Act Section 230 to deny that access to sex workers. And harassment reveals the influence of safety on privacy-invasive surveillance of pregnant people needing abortions and prosecutors’ attempts to stretch the Computer Fraud and Abuse Act to tackle technology-fueled abuse. Feminist cyberlaw is a new term, but this Article concludes that it is foundational to the field of cyberlaw.

Full draft available here.

Presentation available here.