Off the radar of most people is a thrust to create a federal law enforcement presence in making the internet “safe,” and that includes putting the FBI on the job. Rep. Katherine Clark (D-MA) has introduced a bill to require the FBI to track “cybercrimes” and figure out how to win the “war” against them:

Under the new law, the FBI would add “cybercrimes against individuals” – online stalking, harassment, and threats – to its main crime reporting systems. The attorney general would release an annual summary of the cybercrime data, and the Department of Justice would have to come up with a national strategy for reducing these online crimes.

Clark’s rationale is rather unsophisticated:

“If the FBI can provide data on murders and robberies and arson, they should also be able to collect data on the number of cyberstalkings and any other cybercrimes against an individual,” Ms. Clark told Passcode.

There is a rather obvious difference between murders, robberies and arson, and cyberstalking, of course. The former crimes are well-defined. The former crimes don’t implicate constitutional rights. This eludes the good representative, perhaps because of the voices whispering in her ear.

“Having a better sense of the prevalence and incidence of these crimes would help us, first, to understand their nature and dynamics,” Ms. [Mary Anne] Franks said via email. “Requiring reports also forces agencies to be more transparent about their policies and can push them to improve them.”

That certainly clears things up. The purpose of this bill, one of a great many Clark has introduced in her quest to criminalize online speech, is to create a basis to show it’s an epidemic that demands a war of its own and should be prioritized by the feds for prosecution.

The Justice Department prosecuted just 10 cyberstalking cases between 2009 and 2012, according to Danielle Citron, a professor of law at the University of Maryland who studies online harassment. In 2015 and 2016, Clark introduced language in reports attached to Department of Justice appropriations bills that urged it to prioritize these crimes. She hopes that having data on prosecutions will show whether Justice Department officials heeded those instructions.

More numbers would also help lawmakers and advocates know where to direct their energies in the fight against online harassment, according to Ms. Citron.

There are, of course, some problems, though they aren’t of concern to advocates of criminalizing “cyberharassment.”  The first problem is that there is no definition of what they’re talking about. It’s kind of a feel-thing.

d) DEFINITIONS.—In this section:

(1) ) The term ‘‘cybercrimes against individuals’’ means Federal, State, or local criminal offenses that involve the use of a computer to cause personal harm to an individual, such as the use of a computer to harass, threaten, stalk, extort, coerce, cause fear, intimidate, without consent distribute intimate images of, or violate the privacy of, an individual, except that—

(A) use of a computer need not be an element of such an offense; and

(B) such term does not include the use of a computer to cause harm to a commercial entity, government agency, or any non-natural persons.

Much as it covers all manner of feelings, it provides nothing remotely useful as a definition. Causing “personal harm” is certainly inclusive, ranging from the worst sort of revenge porn to the tiniest of microaggressions. Given that everything causes harm these days, and every harm is the most horrible, traumatic and exhausting thing ever, the numbers could be huge.

The limiting factor is “Federal, State, or local criminal offenses,” which might appear to bring some reason back to the concept, except that the disconnect between the vast claims of harm and the tiny number of prosecutions won’t be used to show that cybercrime isn’t occurring, but that criminal laws are inadequate to prevent them. We must have more crimes! We must have a law to protect people from the vicious trolls on the internet, even if those laws criminalize everything more hurtful than a tummy rub.

Think that’s a bit exaggerated? Lawprof Ari Waldman has been laying out his case at PrawfsBlawg for the need to protect people, in his case LGBTQ youth, from cyberharassment.

As early as 2001, more than eighty-five percent of LGB adolescents reported that the internet had been the most “important resource for them to connect with LGB peers.” Destruction of that online social support network through cyberharassment is, therefore, particularly harmful because it turns what might have been a gay student’s safe space into a danger zone. Gay and lesbian adolescents’ dependence on online media makes them more susceptible to those who would use it as a sword against them.

None of this is to say that cyberharassment does not devastate all its victims. But while it is clear that cyberharassment is a modern weapon used to subjugate sexual minorities, it also makes institutional discrimination worse. Cyberharassment turns second-class citizens into third-class denizens by ballooning psychological harms and triggering discrimination in employment, housing, and the provision of benefits. And it takes away a virtual world of great opportunity from those who need it most.

This is Waldman’s flavor of Danielle Citron’s Cyber Civil Rights position, that online speech by women is silenced when met with online speech by men because they hurt women’s feelings and make women not want to speak online. Women’s free speech is stifled by people not agreeing with them. Rep. Jackie Speiers, who like Clark has seized upon the cause of silencing unpleasant speech on the internet, has already leaped in to undermine the protections of the Section 230 Safe Harbor, which won’t protect websites from posting content that is criminal.

What the law may be incapable of accomplishing through fiat, given that millions of internet users are going to say what they want to say, no matter how many federal agents are on the job, what people refuse to do through the exercise of discretion, it is far more likely that the chilling effect on larger players on the internet will do the trick.

Will the Twitters let you say what you want if it means the feds will jump down its butt? They won’t allow it now in the hope of deflecting criticism, whether SJW or criminal. It will prove far more effective to compel website owners, like me, to act as censors to protect us from prosecution.

And is all this flagrantly unconstitutional? You bet. And yet, it’s happening all around us, and there are lots of people, including unduly passionate people in government and academia, who don’t seem to give a shit. They trust that sad tears will blind you from what they’re up to.