Twitter – Page 2 – Social Media Legality

Update Required: An Analysis of the Conflict Between Copyright Holders and Social Media Users

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For anyone who is chronically online as yours truly, in one way or another we have seen our favorite social media influencers, artists, commentators, and content creators complain about their problems with the current US Intellectual Property (IP) system. Be it that their posts are deleted without explanation or portions of their video files are muted, the combination of factors leading to copyright issues on social media is endless. This, in turn, has a markedly negative impact on free and fair expression on the internet, especially within the context of our contemporary online culture. For better or worse, interaction in society today is intertwined with the services of social media sites. Conflict arises when the interests of copyright holders clash with this reality. They are empowered by byzantine and unrealistic laws that hamper our ability to exist as freely as we do in real life. While they do have legitimate and fundamental rights that need to be protected, such rights must be balanced out with desperately needed reform. People’s interaction with society and culture must not be hampered, for that is one of the many foundations of a healthy and thriving society. To understand this, I venture to analyze the current legal infrastructure we find ourselves in.

Current Relevant Law

The current controlling laws for copyright issues on social media are the Copyright Act of 1976 and the Digital Millennium Copyright Act (DMCA). The DMCA is most relevant to our analysis; it gives copyright holders relatively unrestrained power to demand removal of their property from the internet and to punish those using illegal methods to get ahold of their property. This broad law, of course, impacted social media sites. Title II of the law added 17 U.S. Code § 512 to the Copyright Act of 1976, creating several safe harbor provisions for online service providers (OSP), such as social media sites, when hosting content posted by third parties. The most relevant of these safe harbors to this issue is 17 U.S. Code § 512(c), which states that an OSP cannot be liable for monetary damages if it meets several requirements and provides a copyright holder a quick and easy way to claim their property. The mechanism, known as a “notice and takedown” procedure, varies by social media service and is outlined in their terms and conditions of service (YouTube, Twitter, Instagram, TikTok, Facebook/Meta). Regardless, they all have a complaint form or application that follows the rules of the DMCA and usually will rapidly strike objectionable social media posts by users. 17 U.S. Code § 512(g) does provide the user some leeway with an appeal process and § 512(f) imposes liability to those who send unjustifiable takedowns. Nevertheless, a perfect balance of rights is not achieved.

The doctrine of fair use, codified as 17 U.S. Code § 107 via the Copyright Act of 1976, also plays a massive role here. It established a legal pathway for the use of copyrighted material for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” without having to acquire right to said IP from the owner. This legal safety valve has been a blessing for social media users, especially with recent victories like Hosseinzadeh v. Klein, which protected reaction content from DMCA takedowns. Cases like Lenz v. Universal Music Corp further established that fair use must be considered by copyright holders when preparing for takedowns. Nevertheless, failure to consider said rights by true copyright holders still happens, as sites are quick to react to DMCA complaints. Furthermore, the flawed reporting systems of social media sites lead to abuse by unscrupulous actors faking true ownership. On top of that, such legal actions can be psychologically and financially intimidating, especially when facing off with a major IP holder, adding to the unbalanced power dynamic between the holder and the poster.

The Telecommunications Act of 1996, which focuses primarily on cellular and landline carriers, is also particularly relevant to social media companies in this conflict. At the time of its passing, the internet was still in its infancy. Thus, it does not incorporate an understanding of the current cultural paradigm we find ourselves in. Specifically, the contentious Section 230 of the Communication Decency Act (Title V of the 1996 Act) works against social media companies in this instance, incorporating a broad and draconian rule on copyright infringement. 47 U.S. Code § 230(e)(2) states in no uncertain terms that “nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.” This has been interpreted and restated in Perfect 10, Inc. v. CCBill LLC to mean that such companies are liable for user copyright infringement. This gap in the protective armor of Section 230 is a great concern to such companies, therefore they react strongly to such issues.

What is To Be Done?

Arguably, fixing the issues around copyright on social media is far beyond the capacity of current legal mechanisms. With ostensibly billions of posts each day on various sites, regulation by copyright holders and sites is far beyond reason. It will take serious reform in the socio-cultural, technological, and legal arenas before a true balance of liberty and justice can be established. Perhaps we can start with an understanding by copyright holders not to overreact when their property is posted online. Popularity is key to success in business, so shouldn’t you value the free marketing that comes with your copyrighted property getting shared honestly within the cultural sphere of social media? Social media sites can also expand their DMCA case management teams or create tools for users to accredit and even share revenue with, if they are an influencer or content creator, the copyright holder. Finally, congressional action is desperately needed as we have entered a new era that requires new laws. That being said, achieving a balance between the free exchange of ideas and creations and the rights of copyright holders must be the cornerstone of the government’s approach to socio-cultural expression on social media. That is the only way we can progress as an ever more online society.

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https://www.freepik.com/free-vector/flat-design-intellectual-property-concept-with-woman-laptop_10491685.htm#query=intellectual%20property&position=2&from_view=keyword”>Image by pikisuperstar

Shadow Banning Does(n’t) Exist

Shadow Banning Doesn’t Exist

#mushroom

Recent posts from #mushroom are currently hidden because the community has reported some content that may not meet Instagram’s community guidelines.

Dear Instagram, get your mind outta the gutter! Mushrooms are probably one of the most searched hashtags in my Instagram history. It all started when I found my first batch of wild chicken-of-the-woods mushrooms. I wanted to learn more about mushroom foraging, so I consulted Instagram. I knew there were tons of foragers sharing photos, videos, and tips about finding different species. But imagine not being able to find content related to your hobby?

What if you loved eggplant varieties? But nothing came up in the search bar? Perhaps you’re an heirloom eggplant farmer trying to sell your product on social media? Yet you’ve only gotten two likes—even though you added #eggplantman to your post. Shadow banned? I think yes.

The deep void of shadow banning is a social media user’s worst nightmare. Especially for influencers whose career depends on engagement. Shadow banning comes with so many uncertainties, but there are a few factors many users agree on:

1. 1. Certain posts and videos remain hidden from other users
  2. It hurts user engagement
  3. It DOES exist

#Shadowbanning

Shadow banning is an act of restricting or censoring a user’s content on social media without notifying the user. This usually occurs when a user posts content deemed inappropriate or it violates the platform’s guidelines. If a user is shadow banned, the user’s content is only visible to the user and their followers.

Influencers, artists, creators, and business owners are vulnerable victims to the shadow banning void. They depend the most on user engagement, growth, and reaching new audiences. As much as it hurts them, it also hurts other users searching for this specific content. There’s no clear way of telling whether you’ve been shadow banned. You don’t get a notice. You can’t make an appeal to fix your lack of engagement. However, you will see a decline in engagement because no one can see your content in their feeds.

According to the head of Instagram, Adam Mosseri, “shadow banning is not a thing.” In an interview with the Meta CEO, Mark Zuckerberg, he stated Facebook has “no policy that is shadow banning.” Even a Twitter blog stated, “People are asking us if we shadow ban. We do not.” There is no official way of knowing if it exists, but there is evidence it does take place on various social media platforms.

#Shadowbanningisacoverup?

Pole dancing on social media probably would have been deemed inappropriate 20 years ago. But this isn’t the case today. Pole dancing is a growing sport industry. Stigmas associating strippers with pole dancing is shifting with its increasing popularity and trendy nature. However, social media standards may still be stuck in the early 2000s.

In 2019, user posts with hashtags including #poledancing, #polesportorg, and #poledancenation were hidden from Instagram’s Explore page. This affected many users who connect and share new pole dancing techniques with each other. It also had a huge impact on businesses who rely on the pole community to promote their products and services: pole equipment, pole clothing, pole studios, pole sports competitions, pole photographers, and more.

Due to a drastic decrease in user engagement, a petition directing Instagram to stop pole dancing censorship was circulated worldwide. Is pole dancing so controversial it can’t be shared on social media? I think not. There is so much to learn from sharing information virtually, and Section 230 of the Communications Decency Act supports this.

Section 230 was passed in 1996, and it provides limited federal immunity to websites from lawsuits if a user posts something illegal. This means that if User X decides to post illegal content on Twitter, the Twitter platform could not be sued because of User X’s post. Section 230 does not stop the user who posted such content from being sued, so User X can still be held accountable.

It is clear that Section 230 embraces the importance of sharing knowledge. Section 230(a)(1) tells us this. So why would Instagram want to shadow ban pole dancers who are simply sharing new tricks and techniques?

The short answer is: It’s inappropriate.

But users want to know: what makes it inappropriate?

Is it the pole? A metal pole itself does not seem so.

Is it the person on the pole? Would visibility change depending on gender?

Is it the tight clothing? Well, I don’t see how it is any different from my 17 bikini photos on my personal profile.

Section 230 also provides a carve-out for sex-related work, such as sex trafficking. But this is where the line is drawn between appropriate and inappropriate content. Sex trafficking is illegal, but pole dancing is not. Instagram’s community guidelines also support this. Under the guidelines, sharing pole dancing content would not violate it. Shadow banning clearly seeks to suppress certain content, and in this case, the pole dancing community was a target.

Cultural expression also battles with shadow banning. In 2020, Instagram shadow banned Caribbean Carnival content. The Caribbean Carnival is an elaborate celebration to commemorate slavery abolition in the West Indies and showcases ensembles representing different cultures and countries.

User posts with hashtags including #stluciacarnival, #fuzionmas, and #trinidadcarnival2020 could not be found nor viewed by other users. Some people viewed this as suppressing culture and impacting tourism. Additionally, Facebook and Instagram shadow banned #sikh for almost three months. Due to numerous user feedback, the hashtag was restored, but Instagram failed to state how or why the hashtag was blocked.

In March 2020, The Intercept obtained internal TikTok documents alluding to shadow banning methods. Documents revealed moderators were to suppress content depicting users with “‘abnormal body shape,’ ‘ugly facial looks,’ dwarfism, and ‘obvious beer belly,’ ‘too many wrinkles,’ ‘eye disorders[.]'” While this is a short excerpt of the longer list, this shows how shadow banning may not be a coincidence at all.

Does shadow banning exist? What are the pros and cons of shadow banning?

#ad : The Rise of Social Media Influencer Marketing

#Ad : The rise of social media influence marketing.

When was the last time you bought something from a billboard or a newspaper? Probably not recently. Instead, advertisers are now spending their money on digital market platforms. And at the pinnacle of these marketing platforms are influencers. Since millennial, generation Y, and generation Z consumers spend so much time consuming user-generated content, the creator begins to become their acquaintance and could even be categorized as a friend. Once that happens, the influencer has more power to do what their name suggests and influence the user to purchase. This is where our current e-commerce market is headed.

Imagine this:

If a person you know and trust suggests you try a brand new product, you would probably try it. Now, if that same person were to divulge to you that they were paid to tell you all about how wonderful this product is, you would probably have some questions about the reality of their love for this product, right?

Lucky for us consumers, the Federal Trade Commission (FTC) has established an Endorsement Guide so we can all have that information when we are being advertised to by our favorite social media influencers.

The times have changed, quickly.

Over the past 8 years, there has been a resounding shift in the way companies market their products, to the younger generation specifically. The unprecedented changes throughout the physical and digital marketplace have forced brands to think thoroughly through their strategies on how to reach the desired consumer. Businesses are now forced to rely on digital and social media marketing more than they ever have before.

With the rise of social media and apps like Vine, and Tik Tok, came a new metaverse with almost untapped potential for marketing. This was the way companies would be able to reach this younger generation of consumers, you know, the ones with their heads craned over a phone and their thumbs constantly scrolling. These were the people that advertisers had trouble reaching, until now.

What the heck is an “ Influencer”?

The question “What is an influencer?” has become standard in conversations among social media users. We know who they are, but the term is very loosely defined. Rachel David, a popular, YouTube personality, defined it with the least ambiguity as “Someone like you and me, except they chose to consistently post stuff online”. This definition seems harmless enough until you understand that it is much more nuanced than that and these individuals are being paid huge sums of money to push products that they most likely don’t use themselves, despite what their posts may say. The reign of celebrity-endorsed marketing is shifting to a new form of celebrity called an “Influencer”. High-profile celebrities were too far removed from the average consumer. A new category emerged with the rise of social media use, and the only difference between a celebrity and a famous influencer is…relatability. Consumers could now see themselves in the influencer and would default to trusting them and their opinion.

One of the first instances we saw influencers flexing their advertising muscle was the popular app Vine .Vine was a revolutionary app and frankly existed before its time. It introduced the user to a virtual experience that matched their dwindling attention span. Clips were no more than 6 seconds long and would repeat indefinitely until the user swiped to the next one. This short clip captured the user’s attention and provided that much-needed dopamine hit. This unique platform began rising in popularity, rivaling other apps like the powerhouse of user engagement, YouTube. Unlike YouTube, however, Vine required less work on the shorter videos, and more short videos were produced by the creator. Since the videos were so short, the consumers wanted more and more videos (content), which opened the door for other users to blast their content, creating an explosion of “Vine Famous” creators. Casual creators were now, almost overnight, amassing millions of followers, followers they can now influence. Vine failed to capitalize on its users and its inability to monetize on its success, it ultimately went under in 2016. But, what happened to all of those influencers? They made their way to alternate platforms like YouTube, Instagram, and Facebook taking with them their followers and subsequently their influencer status. These popular influencers went from being complete strangers to people the users inherently trusted because of the perceived transparency into their daily life.

Here come the #ads.

Digital marketing was not introduced by Vine, but putting a friendly influencer face behind the product has some genesis there. Consumerism changed when social media traffic increased. E-commerce rose categorically when the products were right in front of the consumer’s face, even embedded into the content they were viewing. Users were watching advertisements and didn’t even care. YouTube channels that were dedicated solely to reviewing different products and giving them a rating became an incredibly popular genre of video. Advertisers saw content becoming promotion for a product and the shift from traditional marketing strategies took off. Digital, inter-content advertising was the new way to reach this generation.

Now that influencer marketing is a mainstream form of marketing, the prevalence of the FTC Endorsement Guide has amplified. Creators are required to be transparent about their intentions in marketing a product. The FTC guide suggests ways influencers can effectively market the product they are endorsing while remaining transparent about their motivations to the user. The FTC guide provides examples of how and when to disclose the fact that a creator is sponsoring or endorsing a particular product that must be followed to avoid costly penalties. Most users prefer to have their content remain as “on brand” as possible and will resort to the most surreptitious option and choose to disguise the “#ad” within a litany of other relevant hashtags.

The age of advertising has certainly changed right in front of our eyes, literally. As long as influencers remain transparent about their involvement with the products they show in their content, consumers will inherently trust them and their opinion on the product. So sit back, relax, and enjoy your scrolling. But, always be cognizant that your friendly neighborhood influencer may have monetary motivation behind their most recent post.

Can Social Media Be Regulated?

In 1996 Congress passed what is known as Section 230 of the Communications Decency Act (CDA) which provides immunity to website publishers for third-party content posted on their websites. The CDA holds that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This Act passed in 1996, was created in a different time and era, one that could hardly envision how fast the internet would grow in the coming years. In 1996, social media for instance consisted of a little-known social media website called Bolt, the idea of a global world wide web, was still very much in its infancy. The internet was still largely based on dial-up technology, and the government was looking to expand the reach of the internet. This Act is what laid the foundation for the explosion of Social Media, E-commerce, and a society that has grown tethered to the internet.

The advent of Smart-Phones in the late 2000s, coupled with the CDA, set the stage for a society that is constantly tethered to the internet and has allowed companies like Facebook, Twitter, YouTube, and Amazon to carve out niches within our now globally integrated society. Facebook alone in the 2nd quarter of 2021 has averaged over 1.9 billion daily users.

Recent studs conducted by the Pew Research Center show that “[m]ore than eight in ten Americans get news from digital services”

While older members of society still rely on news media online, the younger generation, namely those 18-29 years of age, receive their news via social media.

The role Social Media plays in the lives of the younger generation needs to be recognized. Social Media has grown at a far greater rate than anyone could imagine. Currently, Social Media operates under its modus operandi, completely free of government interference due to its classification as a private entity, and its protection under Section 230.

Throughout the 20th century when Television News Media dominated the scenes, laws were put into effect to ensure that television and radio broadcasters would be monitored by both the courts and government regulatory commissions. For example, “[t]o maintain a license, stations are required to meet a number of criteria. The equal-time rule, for instance, states that registered candidates running for office must be given equal opportunities for airtime and advertisements at non-cable television and radio stations beginning forty-five days before a primary election and sixty days before a general election.”

What these laws and regulations were put in place for was to ensure that the public interest in broadcasting was protected. To give substance to the public interest standard, Congress has from time to time enacted requirements for what constitutes the public interest in broadcasting. But Congress also gave the FCC broad discretion to formulate and revise the meaning of broadcasters’ public interest obligations as circumstances changed.

The Federal Communications Commission (FCC) authority is constrained by the first amendment but acts as an intermediary that can intervene to correct perceived inadequacies in overall industry performance, but it cannot trample on the broad editorial discretion of licensees. The Supreme Court has continuously upheld the public trustee model of broadcast regulation as constitutional. The criticisms of regulating social media center on the notion that they are purely private entities that do not fall under the purviews of the government, and yet these same issues are what presented themselves in the precedent-setting case of Red Lion Broadcasting Co. v. Federal Communications Commission (1969. In this case, the court held that “rights of the listeners to information should prevail over those of the broadcasters.” The Court’s holding centered on the public right to information over the rights of a broadcast company to choose what it will share, this is exactly what is at issue today when we look at companies such as Facebook, Twitter, and Snapchat censuring political figures who post views that they feel may be inciteful of anger or violence.

In essence, what these organizations are doing is keeping information and views from the attention of the present-day viewer. The vessel for the information has changed, it is no longer found in television or radio but primarily through social media. Currently, television and broadcast media are restricted by Section 315(a) of the Communications Act and Section 73.1941 of the Commission’s rules which “require that if a station allows a legally qualified candidate for any public office to use its facilities (i.e., make a positive identifiable appearance on the air for at least four seconds), it must give equal opportunities to all other candidates for that office to also use the station.” This is a restriction that is nowhere to be found for Social Media organizations.

This is not meant to argue for one side or the other but merely to point out that there is a political discourse being stifled by these social media entities, that have shrouded themselves in the veils of a private entity. However, what these companies fail to mention is just how political they truly are. For instance, Facebook proclaims itself to be an unbiased source for all parties, and yet what it fails to mention is that currently, Facebook employs one of the largest lobbyist groups in Washington D.C. Four Facebooks lobbyist have worked directly in the office of House Speaker Pelosi. Pelosi herself has a very direct connection to Facebook, she and her husband own between $550,000 to over $1,000,000 in Facebook stock. None of this is illegal, however, it raises the question of just how unbiased is Facebook.

If the largest source of news for the coming generation is not television, radio, or news publications themselves, but rather Social Media such as Facebook, then how much power should they be allowed to wield without there being some form of regulation? The question being presented here is not a new one, but rather the same question asked in 1969, simply phrased differently. How much information is a citizen entitled to, and at what point does access to that information outweigh the rights of the organization to exercise its editorial discretion? I believe that the answer to that question is the same now as it was in 1969 and that the government ought to take steps similar to those taken with radio and television. What this looks like is ensuring that through Social Media, that the public has access to a significant amount of information on public issues so that its members can make rational political decisions. At the end of that day that it was at stake, the public’s ability to make rational political decisions.

These large Social Media conglomerates such as Facebook and Twitter have long outgrown their place as a private entity, they have grown into a public medium that has tethered itself to the realities of billions of people. Certain aspects of it need to be regulated, mainly those that interfere with the Public Interest, there are ways to regulate this without interfering with the overall First Amendment right of Free Speech for all Americans. Where however Social Media blends being a private forum for all people to express their ideas under firmly stated “terms and conditions”, and being an entity that strays into the political field whether it be by censoring heads of state, or by hiring over $50,000,000 worth of lobbyist in Washington D.C, there need to be some regulations put into place that draw the line that ensures the public still maintains the ability to make rational political decisions. Rational decisions that are not influenced by anyone organization. The time to address this issue is now when there is still a middle ground on how people receive their news and formulate opinions.

Free speech, should it be so free?

In the United States everybody is entitled to free speech; however, we must not forget that the First Amendment of the Constitution only protects individuals from federal and state actions. With that being said, free speech is not protected from censorship by private entities, like social media platforms. In addition, Section 230 of the Communications Decency Act (CDA) provides technology companies like Twitter, YouTube, Facebook, Snapchat, Instagram as well as other social media giants, immunity from liabilities arising from the content posted on their websites. The question becomes whether it is fair for an individual who desires to freely express himself or herself to be banned from certain social media websites by doing so? What is the public policy behind this? What are the standards employed by these social media companies when determining who should or should not be banned? On the other hand, are social media platforms being used as tools or weapons when it comes to politics? Do they play a role in how the public vote? Are the users truly seeing what they think they have chosen to see or are the contents being displayed targeted to the users and may ultimately create biases?

As we have seen earlier this year, former President Trump was banned from several social media platforms as a result of the January 6, 2021 assault at the U.S. Capitol by Trump supporters. It is no secret that our former president is not shy about his comments on a variety of topics. Some audiences view him as outspoken, direct, or perhaps provocative. When Twitter announced its permanent suspension of former President Trump’s account, its rationale was to prevent further incitement of violence. By falsely claiming that the 2020 election had been stolen from him, thousands of Trump supporters gathered in Washington, D.C. on January 5 and January 6 which ultimately led to violence and chaos. As a public figure and a politician, our former president should have known that his actions or viewpoints on social media are likely to trigger a significant impact on the public. Public figures and politicians should be held to a higher standard as they represent citizens who voted for them. As such, they are influential. Technology companies like Twitter saw the former president’s tweets as potential threats to the public as well as a violation of their company policies; hence, it was justified to ban his account. The ban was an instance of private action as opposed to government action. In other words, former President Trump’s First Amendment rights were not violated.

First, let us discuss the fairness aspect of censorship. Yes, individuals possess rights to free speech; however, if the public’s safety is at stake, actions are required to avoid chaos. For example, you cannot scream “fire” out of nowhere in a dark movie theater as it would cause panic and unnecessary disorder. There are rules you must comply with in order to use the facility and these rules are in place to protect the general welfare. As a user, if you don’t like the rules set forth by that facility, you can simply avoid using it. It does not necessarily mean that your idea or speech is strictly prohibited, just not on that particular facility. Similar to social media platforms, if users fail to follow their company policies, the companies reserve the right to ban them. Public policy probably outweighs individual freedom. As for the standards employed by these technology companies, there is no bright line. As I previously mentioned, Section 230 grants them immunity from liabilities. That being said, the contents are unregulated and therefore, these social media giants are free to implement and execute policies as they seem appropriate.

In terms of politics, I believe social media platforms do play a role in shaping their users’ perspectives in some way. This is because the contents that are being displayed are targeted, if not tailored, as they collect data based on the user’s preferences and past habits. The activities each user engages in are being monitored, measured, and analyzed. In a sense, these platforms are being used as a weapon as they may manipulate users without the users even knowing. A lot of times we are not even aware that the videos or pictures that we see online are being presented to us because of past contents we had seen or selected. In other words, these social media companies may be censoring what they don’t want you to see or what they may think you don’t want to see. For example, some technology companies are pro-vaccination. They are more likely to post information about facts about COVID-19 vaccines or perhaps publish posts that encourage their users to get vaccinated. We think we have control over what we see or watch, but do we really?

There are advantages and disadvantages to censorship. Censorship can reduce the negative impact of hate speech, especially on the internet. By limiting certain speeches, we create more opportunities for equality. In addition, censorship prevents the spread of racism. For example, posts and videos of racial comments could be blocked by social media companies if deemed necessary. Censorship can also protect minors from seeing harmful content. Because children can be manipulated easily, it helps promote safety. Moreover, censorship can be a vehicle to stop false information. During unprecedented times like this pandemic, misinformation can be fatal. On the other hand, censorship may not be good for the public as it creates a specific narrative in society. This can potentially cause biases. For example, many blamed Facebook for the outcome of an election as it’s detrimental to our democracy.

Overall, I believe that some sort of social media censorship is necessary. The cyber-world is interrelated to the real world. We can’t let people do or say whatever they want as it may have dramatic detrimental effects. The issue is how do you keep the best of both worlds?

Private or not private, that is the question.

Section 230 of the Communications Decency Act (CDA), protects private online companies from liability for content posted by others. This immunity also grants internet service providers the freedom to regulate what is posted onto their sites. What has faced much criticism of late however, is social media’s immense power to silence any voices the platform CEOs disagree with.

Section 230(c)(2), known as the Good Samaritan clause, states that no provider shall be held liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

When considered in the context of a ‘1996’ understanding of internet influence (the year the CDA was created) this law might seem perfectly reasonable. Fast forward 25 years though, with how massively influential social media has become on society and the spread of political information, there has developed a strong demand for a repeal, or at the very least, a review of Section 230.

The Good Samaritan clause is what shields Big Tech from legal complaint. The law does not define obscene, lewd, lascivious, filthy, harassing or excessively violent. And “otherwise objectionable” leaves the internet service providers’ room for discretion all the more open-ended. The issue at the heart of many critics of Big Tech, is that the censorship companies such as Facebook, Twitter, and YouTube (owned by Google) impose on particular users is not fairly exercised, and many conservatives feel they do not receive equal treatment of their policies.

Ultimately, there is little argument around the fact that social media platforms like Facebook and Twitter are private companies, therefore curbing any claims of First Amendment violations under the law. The First Amendment of the US Constitution only prevents the government from interfering with an individual’s right to free speech. There is no constitutional provision that dictates any private business owes the same.

Former President Trump’s recent class action lawsuits however, against Facebook, Twitter, Google, and each of their CEOs, challenges the characterization of these entities as being private.

In response to the January 6th Capitol takeover by Trump supporters, Facebook and Twitter suspended the accounts of the then sitting president of the United States – President Trump.

The justification was that President Trump violated their rules by inciting violence and encouraged an insurrection following the disputed election results of 2020. In the midst of the unrest, Twitter, Facebook and Google also removed a video posted by Trump, in which he called for peace and urged protestors to go home. The explanation given was that “on balance we believe it contributes to, rather than diminishes the risk of ongoing violence” because the video also doubled down on the belief that the election was stolen.

Following long-standing contentions with Big Tech throughout his presidency, the main argument in the lawsuit is that the tech giants Facebook, Twitter and Google, should no longer be considered private companies because their respective CEOs, Mark Zuckerberg, Jack Dorsey, and Sundar Pichai, actively coordinate with the government to censor politically oppositional posts.

For those who support Trump, probably all wish to believe this case has a legal standing.

For anyone else who share concerns about the almost omnipotent power of Silicon Valley, many may admit that Trump makes a valid point. But legally, deep down, it might feel like a stretch. Could it be? Should it be? Maybe. But will Trump see the outcome he is looking for? The initial honest answer was “probably not.”

However, on July 15th 2021, White House press secretary, Jen Psaki, informed the public that the Biden administration is in regular contact with Facebook to flag “problematic posts” regarding the “disinformation” of Covid-19 vaccinations.

Wait….what?!? The White House is in communication with social media platforms to determine what the public is and isn’t allowed to hear regarding vaccine information? Or “disinformation” as Psaki called it.

Conservative legal heads went into a spin. Is this allowed? Or does this strengthen Trump’s claim that social media platforms are working as third-party state actors?

If it is determined that social media is in fact acting as a strong-arm agent for the government, regarding what information the public is allowed to access, then they too should be subject to the First Amendment. And if social media is subject to the First Amendment, then all information, including information that questions, or even completely disagrees with the left-lean policies of the current White House administration, is protected by the US Constitution.

Referring back to the language of the law, Section 230(c)(2) requires actions to restrict access to information be made in good faith. Taking an objective look at some of the posts that are removed from Facebook, Twitter and YouTube, along with many of the posts that are not removed, it begs the question of how much “good faith” is truly exercised. When a former president of the United States is still blocked from social media, but the Iranian leader Ali Khamenei is allowed to post what appears nothing short of a threat to that same president’s life, it can certainly make you wonder. Or when illogical insistence for unquestioned mass emergency vaccinations, now with continued mask wearing is rammed down our throats, but a video showing one of the creators of the mRNA vaccine expressing his doubts regarding the safety of the vaccine for the young is removed from YouTube, it ought to have everyone question whose side is Big Tech really on? Are they really in the business of allowing populations to make informed decisions of their own, gaining information from a public forum of ideas? Or are they working on behalf of government actors to push an agenda?

One way or another, the courts will decide, but Trump’s class action lawsuit could be a pivotal moment in the future of Big Tech world power.

How Defamation and Minor Protection Laws Ultimately Shaped the Internet

The Communications Decency Act (CDA) was originally enacted with the intention of shielding minors from indecent and obscene online material. Despite its origins, Section 230 of the Communications Decency Act is now commonly used as a broad legal safeguard for social media platforms to shield themselves from legal liability for content posted on their sites by third parties. Interestingly, the reasoning behind this safeguard arises both from defamation common law, and constitutional free speech laws. As the internet has grown, however, this legal safeguard has gained increasing criticism. However, is this legislation actually undesirable? Many would disagree as section 230 contains “the 26 words that created the internet.”

Origin of the Communications Decency Act

The CDA was introduced and enacted as an attempt to shield minors from obscene or indecent content online. Although parts of the Act were later struck down for first amendment free speech violations, the Court left section 230 intact. The creation of section 230 was influenced by two landmark court decisions of defamation lawsuits.

The first case was in 1991, and involved an Internet site that hosted around 150 online forums. A claim was brought against the internet provider when a columnist of one of the online forums posted a defamatory comment about his competitor. The competitor sued the online distributor for the published defamation. The courts categorized the internet service provider as a distributor because they did not review any content of the forums before the content was posted to the site. As a distributor, there was no legal liability, and the case was dismissed.

Distributor Liability

Distributor Liability refers to the limited legal consequences that a distributor is exposed to for defamation. A common example of a distributor, is a bookstore or library. The theory behind distributor liability is that it would be impossible for distributors to moderate and censor every piece of content that they disperse because of the sheer volume, and the impossibility of knowing whether something is false or not.

The second case that influenced the creation of section 230, was Stratton Oakmont, Inc. v. Prodigy Servs. Co., in which the court used publisher liability theory to find the internet provider liable for the third party defamatory postings published on its site. The court deemed the website a publisher because they moderated and deleted certain posts, regardless of the fact that there were far too many postings a day to regulate each one.

Publisher Liability

Under common law principles, a person who publishes a third-party’s defamatory statement bears the same legal responsibility as the creator of that statement. This liability is often referred to as “publisher liability,” and is based in theory that a publisher has the knowledge, opportunity, and ability to exercise control over the publication. For example, a newspaper publisher could face legal consequences for the content located within it. The court’s decision was significant because it meant that if a website attempted to moderate certain posts, it would be held liable for all posts.

Section 230’s Creation

In response to the Stratton-Oakmond case, and the ambiguous court decisions regarding internet services provider’s liability, members of Congress introduced an amendment to the CDA that later became Section 230. The Amendment was specifically introduced and passed with the goal of encouraging the development of unregulated, free speech online by relieving internet providers from any liability for their content.

Text of the Act- Subsection (c)(1)

“No Provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Section 230 further provides that…

“No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

The language above removes legal consequences arising from content posted on their forum. Courts have interpreted this subsection as providing broad immunity to online platforms from suits over content of third parties. Because of this, section 230 has become the principal legal safeguard from lawsuits over sites content.

The Good

Section 230 can be viewed as being one of the most important pieces of legislation that protects free speech online. One of the unique aspects of this legislation is that it essentially extends free speech protection, applying it to private, non-governmental companies.
Without CDA 230, the internet would be a very different place. This section influenced some of the internet’s most distinctive characteristics. The internet promotes free speech and offers the ability for worldwide connectivity.
The CDA 230 does not fully eliminate liability or court remedies for victims of online defamation. Rather, it makes only the creator themselves liable for their speech, instead of the speaker and the publisher.

The Bad

Because of the legal protections section 230 provides, social media networks have less of an incentive to regulate false or deceptive posts. Deceptive online posts can have an enormous impact on society. False posts have the ability to alter election results, or lead to dangerous misinformation campaigns, like the QAnon conspiracy theory, and the anti-vaccination movement.
Section 230 is twenty-five years old, and has not been updated to match the internet’s extensive growth.
Big Tech companies have been left largely unregulated regarding their online marketplaces.

The Future of 230

While section 230 is still successfully used by social media platforms, concerns over the archaic legislation have mounted. Just recently, Justice Thomas, who is infamous for being a quiet Justice, wrote a concurring opinion articulating his view that the government should regulate content providers as common carriers, like utilities companies. What implications could that have on the internet? With the growing level of criticism surrounding section 230, will Congress will finally attempt to fix this legislation? If not, will the Supreme Court be left to tackle the problem themselves?

Is social media promoting or curbing Asian hate?

The COVID-19 pandemic has caused our lives to twist and turn in many unexpected ways. Of all the ethnicities in the world, the Asian population took the hardest hit since the virus originated from China. This ultimately caused a significant increase in hate crimes, particularly towards the Asian community, in the real world as well as the cyber world. Since the number of internet users is almost uncountable, the impact that it creates online, as well as offline, is massive. Social media can create bias and social media has the power to remedy bias. The question becomes which side of the scale is it currently tipping towards? Is the internet making social network platform users more vulnerable to manipulation? Are hatred and bias “contagious” through cyber means? On the contrary, is social media remedying the bias that people have created through the internet?

Section 230 of the Communications Decency Act governs the cyber world. It essentially provides legal immunity to internet providers such as TikTok, Facebook, Instagram, Snapchat and etc. The Act states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” With that being said, posts and comments that appear on these social media platforms do not have any legal ramifications for the tech companies. Hence, do these tech companies have incentives to regulate what is posted on their websites? With the Asian hate wave currently going on, will it evolve into a giant snowball of problems if social media platforms fail to step in? On the other hand, if these tech companies elect to step in, to what extent can they regulate or supervise?

The hatred and bias sparked by the pandemic have not been limited to the real world. Asian Americans have reported the biggest increase in serious incidents of online hate and harassment throughout such a crazy time. Many of them were verbally attacked or insulted by racist and xenophobic slurs merely because they have Asian last names or that they look Asian. According to a new survey shared exclusively with USA TODAY, comparing to last year, there was an 11% increase in sexual harassment, stalking, physical threats, and other incidents reported by Asian Americans, of which many were through online social media platforms. Pursuant to the findings by the Center for the Study of Hate and Extremism at California State University, hate crimes against Asian Americans rose 149% from 2019 to 2020. That is 149% in one year. In addition, an AI-based internet abuse detection organization named L1ght reported a 900% increase on Twitter since the start of this pandemic. This may just be the tip of an iceberg as many of the hate crime incidents may have gone unreported. As you may recall, former President Trump publicly referred the COVID-19 coronavirus as the “Chinese Virus” which led to a record-breaking level of brutal online harassment against Asian Americans. This also gave rise to other similar remarks such as “Kung Flu” or “Wuhan Virus.” Social media users began using hashtags of the like. Just the hashtag “#ChineseVirus” alone has been used over 68,000 times on Instagram.

We must not forget that the real world and the cyber world are interconnected. Ideas consumed online can have a significant impact on our offline actions which may lead to violence. Last week, I had the privilege to interview New York Police Department Lieutenant Mike Wang who is in charge of the NYPD’s Asian Hate Crimes Task Force in Brooklyn, he expressed his concerns about the Asian community being attacked, seniors in particular. Lieutenant Wang said during the interview: “It’s just emotionally difficult and heartbreaking. New York Police Department is definitely taking unprecedented measures to combat these crimes. These incidents cannot be overlooked.” Most of these incidents were unprovoked. Some examples include an elderly Thai immigrant who died after being shoved to the ground, a Filipino-American citizen being slashed in the face with a box cutter leaving a big permanent scar on his face, a Chinese lady being slapped and then set on fire, as well as six Asian-Americans being brutally shot to death in a spa one night. Wang indicated that crimes against Asian-Americans in general are nothing new, they have been in existence for quite some time; however, the rage and frustration of the COVID-19 pandemic fueled this fire to an uncontrollable level. Wang encourages citizens to report crimes in general, not just hate crimes, as we need to be more vocal. You can read more about hate crimes and bias on the city’s website.

From verbal harassment to physical assaults, there have been thousands of reported cases since the pandemic started. These are typically hate crimes as offenders believe that the Asian population should be blamed for the spread of the virus. Perhaps people’s daily interactions online play an important role here. Almost everyone uses some sort of social network in our country, the more hatred and bias they see online, the more likely they will exhibit violence in real life. Why? Because people would think such behaviors are acceptable since many others are doing it. Accountability does not seem to be an issue, especially through social channels. At the most, the user’s post would be removed or the account would get suspended. With that being said, it is questionable as to whether the tech companies are doing enough to address these issues? When encountering these hateful behaviors in the cyber world, what are the policies of the social media giants? For instance, Twitter has implemented a policy on hate speech that prohibits accounts whose primary purpose was to incite harm towards others. Twitter does reserve the discretion to remove inappropriate content or suspend users who violated their policy. You can read more about their Hateful Conduct Policy on their website. Other social media platforms such as Facebook, TikTok, and YouTube all have similar policies in place to address hateful behaviors, violent threats, and harassment; however, are they sufficient? According to the CEO of the Anti-Defamation League, online users continue to experience strong hateful comments despite that the social network companies alleged that they are taking things seriously. Facebook and YouTube are still allowing users to use the racially incentive term “Kung Flu” while TikTok has prohibited it. A comics artist Ethan Van Sciver joked about killing Chinese people in one of his videos but later claimed that it was “facetious sarcasm.” YouTube only removed the video stating that it was a violation of its hate speech policy. Like I previously mentioned, the accountability with these social networks is minimal.

Social networks have definitely helped spread the news keeping everyone in the country informed about the horrible incidents that are happening on a regular basis. Other than spreading the virus of hatred and bias online, social networks also raise awareness and promote positivity on the other hand. As Asian hate crimes spike, public figures, and celebrities are taking part to stand against this battle. Allure magazine’s editor-in-chief Michelle Lee and designer Phillip Lim are one of them. They have posted videos on Instagram sharing their very own experiences of racism in an effort to raise awareness. They also used the hashtag #StopAsianHate in their posts. On March 20, 2021, “Killing Eve” star Sandra Oh joined a “Stop Asian Hate” protest in Pittsburgh. She said she is “proud to be Asian” while giving a powerful speech urging people to fight against racism and hatred towards the Asian community. The video of her speech went viral online in just a day and there have been more than ninety-three thousand views on YouTube since. I have to say that our generation is not afraid to speak up about the hate and injustice we face in our society today. This generation is taking it upon ourselves to prove racism instead of relying on authorities to recognize the threats and implement policy changes. This is how #StopAAPIHate came about. The hashtag stands for “Stop Asian American and Pacific Islander Hate.” Stop AAPI Hate is a nonprofit organization that tracks incidents of hate and discrimination against Asian Americans and Pacific Islanders in the United States. It was recently created as a social media platform to bring awareness, education, and resources to the Asian community and its allies. Stop AAPI Hate also utilized social networks like Instagram to organize support groups, provide aid and pressure those in power to act. The following is a list of influential members of the AAPI community who are vocalizing their concerns and belief: Christine Chiu, “The Bling Empire” star who is also a producer and an entrepreneur; Chriselle Lim, who is a digital influencer, content creator and entrepreneur; Tina Craig, who is the founder and CEO of U Beauty; Daniel Martin, who is the makeup artist and global director of Artistry & Education at Tatcha; Yu Tsai, who is a celebrity and fashion photographer & host; Sarah Lee and Christine Chang, who are the co-founders and co-CEOs of Glow Recipe; Aimee Song, who is an entrepreneur and digital influencer; Samuel Hyun, who is the chairman of the Massachusetts Asian American Commission; Daniel Nguyen who is an actor; Mai Quynh, who is a celebrity makeup artist; Ann McFerran, who is the founder and CEO of Glamnetic; Nadya Okamoto, who is the founder of August; Sharon Pak who is the founder of INH; Sonja Rasula, who is the founder of Unique Markets; as well as Candice Kumai, who is a writer, journalist, director and best-selling author. The list can go on but the purpose of these influential speakers is that taking things to social media is not just about holding people or companies accountable, instead, it is about creating meaningful changes in our society.

The internet is more powerful than we think it is. It is dangerous to allow individuals to attack or harass others, even through the screen. I understand that the social media platforms cannot blatantly censor contents or materials as they see inappropriate on their websites as it may be a violation of the user’s First Amendment rights; however, there has to be more that they can do. Perhaps creating more rigorous policies as an effort to combat hate speech. If we are able to track the user’s identity to his or her real-life credentials, it may curb the tendency of potential offenders or repeated offenders. The question is how do you draw the line between freedom of speech and social order?

The First Amendment Is Still Great For The United States…Or Is It?

In the traditional sense, of course it is. The idea of free speech should always be upheld, without question. However, when it comes to the 21^st century, this two and a half centuries old amendment poses extreme roadblocks. Here, I will be discussing how the First Amendment inhibits the ability to tackle extremism and hatred on social media platforms.

One of the things I will be highlighting is how other countries are able to enact legislation to try and deal with the ever-growing hate that festers on social media. They’re able to do so because they do not have a “First Amendment.” The idea of free speech is simply engrained into democracies; they do not need an archaic document in which they are forever bound to tell them that. Here in the U.S., as we all know, congress can be woefully slow and inefficient, with a particular emphasis on refusing to update outdated laws.

The First Amendment successfully blocks any government attempt to regulate social media platforms. Any attempt to do so is met by mostly conservatives, yelling about the government wanting to take away free speech, and the courts will/would not allow the legislation to stand. This in turn means Facebook, Snapchat, Instagram, Reddit, and all the other platform never have to worry about the white supremist and other extremist rhetoric that is prevalent on their platform. Even further than that, most, if not all their algorithms, push those vile posts to hundreds of thousands of people. We are “not allowed” to introduce laws that will come up with a baseline to regulate platforms, in order to crack down on the terrorism that flourishes there. Just as you are not allowed to scream fire in a move theatre, it should not be allowed to post and form groups to spread misinformation, white supremacy, racism, etc. Those topics do not serve the interests of greater society. Yes, it would make it a lot harder for people to be able to easily share their thoughts, no matter how appalling they may be. However, not allowing it to spread online where in 30 seconds millions of people can see it, is not taking away someone’s free speech right. Platforms don’t even necessarily have to delete the posts; just change their algorithms to stop promoting misinformation and hate, promote truth instead even if the truth is boring. They won’t do that though because promoting lies is what makes them money, and it’s always money over the good of the people. Another reason why this doesn’t limit people’s free speech is because they can still form in person groups, talk about it in private, start an email chain etc. The idea behind trying to regulate what can be posted on social media websites is to make the world a better place for all; to make it harder for racist ideas and terrorism to spread, especially to young, impressionable children/young adults. This shouldn’t be a political issue; shouldn’t we all want to limit the spread of hate?

It is hard for me to imagine the January 6th insurrection on our capital occurring had we had regulations on social media in place. A lot of the groups that planned the insurrection had “stop the steal” groups and other related election-fraud conspiracy pages on Facebook. Imagine if we had in place a law that said social media platforms had to take down posts and pages eliciting false information that could be inciteful or detrimental to the security of the United States? I realize that is broad discretion, the legislation would have to be worded very narrowly, and those decisions to remove posts should be made with the highest level of scrutiny. Had we had a regulation like that in place, these groups would not have been able to reach as wide of an audience. I think Ashley Babbitt and Officer Sicknick would still be alive had Facebook been obligated to take those pages and posts down.

Alas, we are unable to even consider legislation to help address this cause because the courts and a lot of congress people refuse to acknowledge that we must update our laws and redefine how we read the First Amendment. The founders could never have imagined the world we live in today. Congress and the Courts need to stop pretending that a piece of paper written over a hundred years ago is some untouchable work from god. The founders wrote the First Amendment to ensure no one would be thrown in jail for speaking their mind, so that people who hold different political views could not be persecuted, to give people the ability to express themselves. Enacting legislation to prevent blatant lies, terrorism, racism, and white supremacy from spreading as easily online does not go against the First Amendment. It is not telling people they can’t have those views; it is not throwing anyone in prison or handing out fines for those views, and white supremacist or other racist ideas are not “political discourse.” Part of the role of government is to protect the people, to do what is right for society as a whole, and I fail to see how telling social media platforms they need to take down these appalling posts is outweighed by this idea that “nearly everything is free speech, even if it poisons the minds of our youth and perpetuates violence because that’s what the First Amendment says.”

Let’s now look at the United Kingdom and what they are able to do because they do not have any law comparable to the First Amendment. In May of 2021, the British Parliament introduced the Online Safety Bill. If passed into law, the bill will place a duty of care on social media firms and websites to ensure they take swift action to remove illegal content, such as hate crimes, harassment and threats directed at individuals, including abuse which falls below the criminal threshold. As currently written, the bill would also require the social media companies to limit the spread of and remove terroristic material, suicidal content, and child sexual abuse. The companies would be mandated to report postings of those kind to the authorities. Lastly, the Online Safety Bill would require companies to safeguard freedom of expression, and reinstate material unfairly removed. This includes forbidding tech firms from discriminating against particular political viewpoints. The bill reserves the right for Ofcom (the UK’s communications regulator) to hold them accountable for the arbitrary removal of journalistic content.

The penalties for not complying with the proposed law would be significant. Social Media companies that do not comply could be fined up to 10% of their net profits or $25 million. Further, the bill would allow Ofcom to bring criminal actions against named senior managers whose company does not comply with Ofcom’s request for information.

It will be interesting to see how the implementation of this bill will go if it is passed. I believe it is a good steppingstone to reign in the willful ignorance displayed by these companies. Again, it is important these bills be carefully scrutinized, otherwise you may end up with a bill like the one proposed in India. While I will not be discussing their bill at length in this post, you can read more about it here. In short, India’s bill is widely seen as autocratic in nature; giving the government the ability to fine and or criminally prosecute social media companies and their employees if they fail to remove content that the government does not like (for instance, people who are criticizing their new agriculture regulations).

Bringing this ship back home, can you imagine a bill like Britain’s ever passing in the US, let alone even being introduced? I certainly can’t because we still insist on worshiping an amendment that is 230 years old. The founders wrote the bill based on the circumstances of their time, they could never have imagined what today would look like. Ultimately, the decision to allow us to move forward and adopt our own laws to start regulating social media companies is up to the Supreme Court. Until the Supreme Court wakes up and decides to allow a modern reading/interpretation of the First Amendment, any law to hold companies accountable is doomed to fail. It is illogical to put a piece of paper over the safety and well being of Americans, yet we consistently do just that. We will keep seeing reports of how red flags were missed and as a result people were murdered or how Facebook pages helped spread another “Big Lie” which results in another capital sieged. All because we cannot move away from our past to brighten our futures.

What would you do to help curtail this social dilemma?

A Slap in the Face(book)?

Social media law has become somewhat of a contentious issue in recent years. While most people nowadays could not imagine life without it, many realize too, that it’s influence on our daily lives may not be a great thing. As the technology has advanced to unimaginable levels and the platforms have boomed in popularity, it seems as though our smart phones and Big Tech know our every move. The leading social media platform, Facebook, has around 1.82 billion active users a day, with people volunteering all sorts of personal information to be stored in the internet database. Individual profiles hold pictures of our children, our friends, our family, meals we eat, locations we visit. “What’s on your mind?” is the opening invite to any Facebook page, and one can only hazard a guess as to how many people actually answer that question on a daily basis. Social media sites know our likes, our dislikes, our preferences, our moods, the shoes we want to buy for that dress we are thinking of wearing to the party we are looking forward to in three weeks!

With all that knowledge, comes enormous power, and through algorithmic design, social media can manipulate our thoughts and beliefs by controlling what we see and don’t see. With all that power, therefore, should come responsibility, but Section 230 of the Communications Decency Act (CDA) has created a stark disconnect between the two. What started out as a worthy protection for internet service providers for the content posted by others, has more recently drawn criticism for the lack of accountability held by social media oligarchs such as Jack Dorsey (Twitter) and Mark Zuckerberg (Facebook).

However, that could all be about to change.

On May 28, 2017, three friends lost their lives in a deadly car accident in which the 17-year-old driver, Jason Davis, crashed into a tree at an estimated speed of 113 mph. Landen Brown, 20, and Hunter Morby, 17, were passengers. Tragic accident? Or wrongful death?

Parents of the deceased lay blame on the Snapchat App, which offered a ‘Speed Filter’ that would clock how fast you were moving, and allowed users to snap and share videos of their movements in progress.

You see where this is going.

As quickly became the trend, the three youths used the app to see how fast they could record the speed of their car. Just moments before their deaths, Davis had posted a ‘snap’ clocking the car’s speed at 123 mph. In Lemmon v Snap, the parents of two of the boys brought suit against the social media provider, Snap, Inc., claiming that the app feature encouraged reckless driving and ultimately served to “entice” the young users to their death.

Until now, social media platforms and other internet service providers have enjoyed the protection of near absolute immunity from liability. Written in 1996, Section 230 was designed to protect tech companies from liability, for suits such as defamation, for third party posts. In the early days, it was small tech companies, or an online business with a ‘comments’ feature that generally saw the benefits of the Code. 25 years later, many people are questioning the role of Section 230 within the vastly developing era of social media and the powerful pass it grants Big Tech in many of its societal shortcomings.

Regarded more as an open forum than the publisher or speaker, social media platforms such as Facebook, Twitter, TikTok, Instagram and Snapchat, have been shielded by Section 230 from any legal claims of harm caused by the content posted on their sites.

Applied broadly, it is argued that Section 230 prevents Snap, Inc. from being held legally responsible for the deaths of the three boys in this case, which is the defense the tech company relied upon. The district court dismissed the case on those grounds, holding that the captured speeds fall into the category of content published by a third party, for which the service provider cannot be held liable. The Ninth Circuit however, disagrees. The Court’s interesting swerve of such immunity, is that the speed filter resulted in the deaths of the boys regardless of whether or not their captured speeds were posted. In other words, it did not matter if the vehicle’s speed was shared with others in the app; the fact that the app promotes, and rewards, high speed (although the award system within the app is not entirely clear), is enough.

The implications of this could be tremendous. At a time when debate over 230 reevaluations is already heavy, this precedential interpretation of Section 230 could lead to some cleverly formulated legal arguments for holding internet service providers accountable for some of the highly damaging effects of internet, social media and smart phone usage.

For the many benefits the internet has to offer, it can no longer be denied that there is another, very ugly side to internet usage, in particular with social media.

It is somewhat of an open secret that social media platforms such as Facebook and Instagram, purposely design their apps to be addictive by its users. It is also no secret that there is a growing association between social media usage and suicides, depression and other mental health issues. Cyber bullying has long been a very real problem. In addition, studies have shown that smart device screen time in very young children has shockingly detrimental impacts on a child’s social and emotional developments, not to mention the now commonly known damage it can have on a person’s eyesight.

An increased rate of divorces has been linked to smart phones, and distracted driving – whether it be texting or keeping tabs on your Twitter retweets, or Facebook ‘likes’– is on the increase. Even an increase in accidents while walking has been linked to distractions caused by the addictive smart devices.

With the idea of accountability being the underlying issue, it can of course be stated that almost all of these problems should be a matter of personal responsibility. Growing apart from your spouse? Ditch your cell phone and reinvent date night. Feeling depressed about your life as you ‘heart’ a picture of your colleague’s wine glass in front of a perfect sunset beach backdrop? Close your laptop and stop comparing yourself to everyone else’s highlights. Step in front of a cyclist while LOL’ing in a group text? Seriously….put your Apple Watch hand in your pocket and look where you are going! The list of personal-blame is endless. But then we hear about three young friends, two still in their teens, who lose their lives engaged with social media, and suddenly it’s not so easy to blame them for their own devastating misfortune.

While social media sites cannot be held responsible for the content posted by others, no matter how hurtful it might be to some, or no matter what actions it leads others to take, should they be held responsible for negligently making their sites so addictive, so emotionally manipulative and so targeted towards individual users, that such extensive and compulsive use leads to dire consequences? According to the Ninth Circuit, negligent app design can in fact be a cause of action for wrongful death.

With a potential crack in the 230-armor, the questions many lawyers will be scrambling to ask are:

- - What duties do the smart device producers and/or internet service providers owe to their users?
  - Are these duties breached by continuing to design, produce, and provide products that are now known to create such disturbing problems?
  - What injuries have occurred and where those injuries foreseeably caused by any such breaches of duty?

For the time being, it is unlikely that any substantial milestone will be reached with regards to Big Tech accountability, but the Ninth Circuit decision in this case has certainly delivered a powerful blow to the Big Tech apparent untouchability in the courtroom.

As awareness of all these social media related issues grow, could this court decision open the door to further suits of defective or negligent product design resulting in death or injury? Time will tell…..stay tuned.

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