By Michaela Hinckley-Gordon

AirDrop technology has enabled a new form of sexual harassment. Traditionally, sexual harassment law, as denoted in the Civil Rights Act under Title VII and Title IX, protects women in the workplace and in educational environments. However, a gap still exists between existing law regarding harassment and the expanding forms of sexual harassment produced by emerging technology.

Traveling to or from work during rush hour, in a packed subway train, is not often considered a pleasurable experience. This already unpleasant experience has been heightened for many people who, while making this commute, are sent anonymous threatening and/or explicit images. These images are being sent to Apple device users via AirDrop technology. AirDrop is a software mechanism which allows an Apple device user to send media content to other Apple devices in close proximity over Bluetooth or Wi-Fi connections.

AirDrop users are able to select their Apple device username which appears when they send an AirDrop request. The ability to select one’s username allows for great anonymity because an AirDrop user can only be identified by the username or nickname, he or she selected. When someone shares content via AirDrop, the recipient automatically receives a notification accompanied by a visual preview of the image or content. Although you can choose to reject the AirDrop content, there is no way to block the initial image preview. Once someone receives an AirDrop request, they can choose to accept or decline the content. However, rejecting the AirDrop image deletes any evidence of who sent the image, including the sender’s username, from the recipient’s phone.

While AirDrop can be a useful way to share photos, videos, and other media content, it has also become a popular mechanism of cyber-flashing. AirDrop has increasingly been used to anonymously send explicit sexual images to unexpecting strangers. Receiving such messages is not only shocking but can be a trigger for survivors of sexual assault and harassment. The environment of a crowded subway train or other public arena creates a shield of anonymity for the sender. However, it leaves the recipient anxiously scanning the crowd with the unsettling feeling as to which anonymous passersby may be targeting her.

Many women have reported receiving AirDrop requests of sexually explicit images while traveling on public transportation. Reports have included AirDrop messages of sexually explicit images, such as exposed male genitalia. Due to the automatic image preview, recipients of lewd or threatening messages are left unprotected with no ability to block the message before being exposed to the image. Unfortunately, due to the anonymity available in using AirDrop, police and victims face great difficulty in identifying the source of the explicit content.

A few states took action to address emerging forms of sexual harassment. On January 23, 2019, New York introduced a bill to amend the law defining harassment to include unsolicited intimate images sent by an electronic device. New York’s existing law does not include the transmissions of images as a type of harassment. However, if this law is enacted, violators could be charged and fined up to a thousand dollars. The proposed New York bill reasons that the amendment is necessary due to the expansion of technology and new forms of harassment, specifically, anonymously posting or sending intimate images. On April 25, 2019, the Texas legislature enacted a similar bill, entitled “Unlawful Electronic Submission of Sexually Explicit Visual Material.” The law criminalizes the transmission of sexually explicit visual material if the recipient has not consented. The visual material encompassed by the law includes images of a person’s intimate parts exposed, covered male genitals in a visibly erect state, or any person engaging in sexual conduct. If such images are not sent at the request of the recipient or with the recipient’s expressed consent, then the conduct constitutes a criminal offense.

The future of the recently enacted Texas law is up for debate. Critics foresee the possibility of the law infringing on First Amendment, freedom of speech rights. Whereas proponents of the law, like the founder of the dating app Bumble, see it as a significant step towards implementing accountability for unacceptable online behavior. Time will tell if the Texas law is upheld and whether or not more states adopt similar laws. Regardless, the new proposed laws are a meaningful first step in addressing criminal liability of conduct that would constitute a crime if done in person, but that has been left unregulated when performed through varying technology interfaces.

 

Student Bio: Michaela is a second-year law student at Suffolk University Law School and a staff member of the Journal of High Technology Law. She received a dual degree in Political Science and Justice Studies from the University of New Hampshire in 2018. She is currently interning at the Title IX Legal Investigators Office at the Massachusetts Institute of Technology.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

 

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