Facebook – Page 2 – Social Media Legality

Alarming Side of Youtube

Social media has now become an integrated part of an individual’s life. From Facebook to twitter, Instagram, snapchat to the latest edition, that is TikTok, social media has made its way into a person’s life and occupies the same value as that of eating, sleeping, exercising etc. There is no denying the dopamine hit you get from posting on Instagram or scrolling endlessly, liking, sharing, commenting and re-sharing etc. From checking your notifications and convincing yourself, “Right, just five minutes, I am going to check my notifications” to spending hours on social media, it is a mixed bag. While I find that being in social media is to an extent a way to relax and alleviate stress, I also believe social media and its influence on peoples’ lives should not cross a certain threshold.

We all like a good laugh. We get a good laugh from people doing funny things on purpose or people pranking other people to get a laugh. Most individuals nowadays use some sort of social medial platforms to watch content or make content. YouTube is once such platform. After Google, YouTube is the most visited website on the internet. Everyday about a billion hours of videos are watched by people all over the world. I myself, contribute to those billion hours.

Now imagine you are on YouTube, you start watching a famous youtuber’s videos, you then realize this video is not only disturbing but is also very offensive. You stop watching the video. That’s it. You think that is a horrible video and think no more of it. On the contrary, there have been videos on YouTube which have caused mass controversy all over the internet since the platforms birth in 2005. Let us now explore the dark side of YouTube.

There is an industry that centers around pranks done to members of the public which is less about humor and more about shock value. There is nothing wrong with a harmless prank, but when doing a prank, one must be considerate how their actions are perceived by others, one wrong move and you could end facing charges or a conviction.

Across the social media platform there are many creators of such prank videos. Not all of them have been well received by the public or by the fands of the creators. One such incident is where YouTube content creators, Alan and Alex Stokes who are known for their gag videos plead guilty to charges centering around fake bank robberies staged by them.

The twins wore black clothes and ski masks, carried cash filled duffle bags for a video where they pretended to have robbed a bank. They then ordered an uber who, unaware of the prank had refused to drive them. An onlooker called the police believing that the twins had robbed a bank and were attempting to carjack the vehicle. Police arrived at the scene and held the driver at gunpoint until it was revealed and determined that it was a prank. The brothers were not charged and let off with a warning. They however, pulled the same stunt at a university some four hours later and were arrested.

They were charged with one felony count of false imprisonment by violence, menace or fraud, or deceit and one misdemeanor count of falsely reporting an emergency. The charges carry a maximum penalty of five years in prison. “These were not pranks. These are crimes that could have resulted in someone getting seriously injured or even killed.” said Todd Spitzer, Orange County district attorney.

The brothers accepted a bargain from the judge. In return for a guilty plea, the felony count would be reduced a misdemeanor resulting in one year probation and 160 hours of community service and compensation. The plea was entered despite the prosecution stating that tougher charges were necessary. The judge also warned the brothers, who have over 5 million YouTube subscribers not to make such videos.

Analyzing the scenario above, I would agree with the district attorney. Making prank videos and racking up videos should not come at the cost of inciting fear and panic in the community. The situation with the police could have escalated severely which might have led to a more gruesome outcome. The twins were very lucky, however, in the next incident, the man doing a prank video in Tennessee was not.

In filming a YouTube prank video, 20 year old Timothy Wilks was shot dead in a parking lot of an Urban Air indoor trampoline park. David Starnes Jr, admitted to shooting Wilks when he and an unnamed individual approached him and a group wielding butcher knives and lunged at them. David told the police that he shot one of them in defense of himself and others.

Wilks’s friend said they were filming a video of a robbery prank for their YouTube channel. This was a supposed to be a recorded YouTube video meant to capture the terrified reactions of their prank victims. David was unaware of this prank and pulled out his gun to protect himself and others. No one has been charged yet in regard to the incident.

The above incident is an example of how pranks can go horribly wrong and result in irreparable damage. This poses the question, who do you blame, the 20 years old man staging a very dangerous prank video, or the 23-year-old who fired his gun in response to that?

Monalisa Perez, a youtuber from Minnesota fatally shot and killed her boyfriend in an attempt to film a stunt of firing a gun 30 cm away from her boyfriend, Predo Ruiz, who only had a thick book of 1.5inch to protect him. Perez pleaded guilty to second degree manslaughter and was sentenced to six months’ imprisonment.

Perez and her boyfriend Ruiz would document their everyday lives in Minnesota by posting pranks videos on YouTube to gain views. Before the fatal stunt, Perez tweeted, “Me and Pedro are probably going to shoot one of the most dangerous videos ever. His idea, not mine.”

Perez had previously experimented before and thought that the hardback Encyclopedia would be enough to stop the bullet. Perez fired a .50-calibre Desert Eagle, which is known to be an extremely powerful handgun which pierced the encyclopedia and fatally wounded Ruiz.

Perez will serve a 180-day jail term, serve 10 years of supervised probation, be banned for life from owning firearms and make no financial gain from the case. The sentence is below the minimum guidelines, but it was allowed on the ground that the stunt was mostly Ruiz’s idea.

Dangerous pranks such as the one above has left a man dead and a mother of two grieving for fatally killing her partner.

In response to the growing concerns of filming various trends and videos, YouTube have updated their policies regarding “harmful and dangerous” content and explicitly banned pranks and challenges that may cause immediate or lasting physical or emotional harm. The policies page showcases three types of videos that are now prohibited. They are: 1) Challenges that encourage acts that have an inherent risk of sever harm; 2) Pranks that make victims they are physical danger and 3) Pranks that cause emotional distress to children.

Prank videos may depict the dark side of how content crating can go wrong but they are not the only ones. In 2017, youtuber, Logan Paul became the source of controversy after posting a video of him in a Japanese forest called Aokigahara near the base of Mount Fuji. Aokigahara is a dense forest with lush trees and greenery. The forest is, however, infamous for being known as the suicide forest. It is a frequent site for suicides and is also considered haunted.

Upon entering the forest, the youtuber came across a dead body hung from a tree. The actions and depictions of Logan Paul around the body are what caused controversy and outrage. The video has since been taken down from YouTube. An apology video was posted by Logan Paul trying to defend his actions. This did nothing to quell the anger on the internet. He then came out with a second video where he could be seen tearing up on camera. In addressing the video, YouTube expressed condolences and stated that they prohibit such content which are shocking or disrespectful. Paul lost the ability to make money on his videos through advertisement which is known as demonetization. He was also removed from the Google Preferred program, where brands can sell advertisement to content creators on YouTube.

That consequences of Logan Paul’s actions did not end there. A production company is suing the youtuber on the claims that the video of him in the Aokigahara resulted in the company losing a multimillion-dollar licencing agreement with Google. The video caused Google to end its relationship with Planeless Pictures, the production company and not pay the $3.5 million. Planeless Pictures are now suing Paul claiming that he pay the amount as well as additional damage and legal fees.

That is not all. Youtube has been filled with controversies which have resulted in lawsuits.

A youtuber by the name of Kanghua Ren was fined $22300 and was also sentenced to 15 months imprisonment for filming himself giving a homeless man an oreo filled with toothpaste. He gave 20 euros and oreo cookies to a homeless which were laced with toothpaste instead of cream. The video depicts the homeless man vomiting after eating the cookie. In the video Ren stated that although he had gone a bit far, the action would help clean the homeless person’s teeth. The court, however, did not take this lightly and sentenced him. The judge stated that this was not an isolated act and that Ren had shown cruel behaviour towards vulnerable victims.

These are some of the pranks and videos that have gained online notoriety. There are many other videos which have portrayed child abuse, following a trend by eating tidepods as well as making sharing anti-Semitic videos and using racist remarks. The most disturbing thing about these videos is that they are not only viewed by adults but also children. In my opinion these videos could be construed as having some influence on young individuals.

Youtube is a diverse platform home to millions of content creators. Since its inception it has served as a mode of entertainment and means of income to many individuals. From posting cat videos online to making intricate, detailed, and well directed short films, YouTube has revolutionized the video and content creation spectrum. Being an avid viewer of many channels on YouTube, I find that incidents like these, give YouTube a bad name. Proper policies and guidelines should be enacted and imposed and if necessary government supervision may also be exercised.

Don’t Throw Out the Digital Baby with the Cyber Bathwater: The Rest of the Story

This article is in response to “Is Cyberbullying the Newest Form of Police Brutality?” which discussed law enforcement’s use of social media to apprehend people. The article provided a provocative topic, as seen by the number of comments.

I believe that discussion is healthy for society; people are entitled to their feelings and to express their beliefs. Each person has their own unique life experiences that provide a basis for their beliefs and perspectives on issues. I enjoy discussing a topic with someone because I learn about their experiences and new facts that broaden my knowledge. Developing new relationships and connections is so important. Relationships and new knowledge may change perspectives or at least add to understanding each other better. So, I ask readers to join the discussion.

My perspectives were shaped in many ways. I grew up hearing Paul Harvey’s radio broadcast “The Rest of the Story.” His radio segment provided more information on a topic than the brief news headline may have provided. He did not imply that the original story was inaccurate, just that other aspects were not covered. In his memory, I will attempt to do the same by providing you with more information on law enforcement’s use of social media.

“Is Cyberbullying the Newest Form of Police Brutality?”

The article title served its purpose by grabbing our attention. Neither cyberbullying or police brutality are acceptable. Cyberbullying is typically envisioned as teenage bullying taking place over the internet. The U.S. Department of Health and Human Services states that “Cyberbullying includes sending, posting, or sharing negative, harmful, false, or mean content about someone else. It can include sharing personal or private information about someone else causing embarrassment or humiliation”. Similarly, police brutality occurs when law enforcement (“LE”) officers use illegal and excessive force in a situation that is unreasonable, potentially resulting in a civil rights violation or a criminal prosecution.

While the article is accurate that 76% of the surveyed police departments use social media for crime-solving tips, the rest of the story is that more departments use social media for other purposes. 91% notified the public regarding safety concerns. 89% use the technology for community outreach and citizen engagement, 86% use it for public relations and reputation management. Broad restrictions should not be implemented, which would negate all the positive community interactions increasing transparency.

Transparency

In an era where the public is demanding more transparency from LE agencies across the country, how is the disclosure of the public’s information held by the government considered “Cyberbullying” or “Police Brutality”? Local, state, and federal governments are subject to Freedom of Information Act laws requiring agencies to provide information to the public on their websites or release documents within days of requests or face civil liability.

New Jersey Open Public Records

While the New Jersey Supreme Court has not decided if arrest photographs are public, the New Jersey Government Records Council (“GRC”) has decided in Melton v. City of Camden, GRC 2011-233 (2013) that arrest photographs are not public records under NJ Open Public Records Act (“OPRA”) because of Governor Whitmer’s Executive Order 69 which exempts fingerprint cards, plates and photographs and similar criminal investigation records from public disclosure. It should be noted that GRC decisions are not precedential and therefore not binding on any court.

However, under OPRA, specifically 47:1A-3 Access to Records of Investigation in Progress, specific arrest information is public information and must be disclosed to the public within 24 hours of a request to include the:

Date, time, location, type of crime, and type of weapon,
Defendant’s name, age, residence, occupation, marital status, and similar background information.
Identity of the complaining party,
Text of any charges or indictment unless sealed,
Identity of the investigating and arresting officer and agency and the length of the investigation,
Time, location, and the arrest circumstances (resistance, pursuit, use of weapons),
Bail information.

For years, even before Melton, I believed that an arrestee’s photograph should not be released to the public. As a police chief, I refused numerous media requests for arrestee photographs protecting their rights and believing in innocence until proven guilty. Even though they have been arrested, the arrestee has not received due process in court.

New York’s Open Public Records

In New York under the Freedom of Information Law (“FOIL”), Public Officers Law, Article 6, §89(2)(b)(viii) (General provisions relating to access to records; certain cases) The disclosure of LE arrest photographs would constitute an unwarranted invasion of an individual’s personal privacy unless the public release would serve a specific LE purpose and the disclosure is not prohibited by law.

California’s Open Public Records

Under the California Public Records Act (CPRA) a person has the statutory right to be provided or inspect public records, unless a record is exempt from disclosure. Arrest photographs are inclusive in arrest records along with other personal information, including the suspect’s full name, date of birth, sex, physical characteristics, occupation, time of arrest, charges, bail information, any outstanding warrants, and parole or probation holds.

Therefore under New York and California law, the blanket posting of arrest photographs is already prohibited.

Safety and Public Information

Recently in Ams. for Prosperity Found. V. Bonta, the compelled donor disclosure case, while invalidating the law on First Amendment grounds, Justice Alito’s concurring opinion briefly addressed the parties personal safety concerns that supporters were subjected to bomb threats, protests, stalking, and physical violence. He cited Doe v Reed which upheld disclosures containing home addresses under Washington’s Public Records Act despite the growing risks by anyone accessing the information with a computer.

Satisfied Warrant

I am not condoning Manhattan Beach Police Department’s error of posting information on a satisfied warrant along with a photograph on their “Wanted Wednesday” in 2020. However, the disclosed information may have been public information under CPRA then and even now. On July 23, 2021, Governor Newsom signed a law amending Section 13665 of the CPRA prohibiting LE agencies from posting photographs of an arrestee accused of a non-violent crime on social media unless:

The suspect is a fugitive or an imminent threat, and disseminating the arrestee’s image will assist in the apprehension.
There is an exigent circumstance and an urgent LE interest.
A judge orders the release or dissemination of the suspect’s image based on a finding that the release or dissemination is in furtherance of a legitimate LE interest.

The critical error was that the posting stated the warrant was active when it was not. A civil remedy exists and was used by the party to reach a settlement for damages. Additionally, it could be argued that the agency’s actions were not the proximate cause when vigilantes caused harm.

Scope of Influence

LE’s reliance on the public’s help did not start with social media or internet websites. The article pointed out that “Wanted Wednesday” had a mostly local following of 13,600. This raised the question if there is much of a difference between the famous “Wanted Posters” from the wild west or the “Top 10 Most Wanted” posters the Federal Bureau of Investigations (“FBI”) used to distribute to Post Offices, police stations and businesses to locate fugitives. It can be argued that this exposure was strictly localized. However, the weekly TV show America’s Most Wanted, made famous by John Walsh, aired from 1988 to 2013, highlighting fugitive cases nationally. The show claims it helped capture over 1000 criminals through their tip-line. However, national media publicity can be counter-productive by generating so many false leads that obscure credible leads.

The FBI website contains pages for Wanted People, Missing People, and Seeking Information on crimes. “CAPTURED” labels are added to photographs showing the results of the agency’s efforts. Local LE agencies should follow FBI practices. I would agree with the article that social media and websites should be updated; however, I don’t agree that the information must be removed because it is available elsewhere on the internet.

Time

Vernon Gebeth, the leading police homicide investigation instructor, believes time is an investigator’s worst enemy. Eighty-five percent of abducted children are killed within the first five hours. Almost all are killed within the first twenty-four hours. Time is also critical because, for each hour that passed, the distance a suspect’s vehicle can travel expands by seventy-five miles in either direction. In five hours, the area can become larger than 17,000 square miles. Like Amber Alerts, social media can be used to quickly transmit information to people across the country in time-sensitive cases.

Live-Streaming Drunk Driving Leads to an Arrest

When Whitney Beall, a Florida woman, used a live streaming app to show her drinking at a bar then getting into her vehicle. The public dialed 911, and a tech-savvy officer opened the app, determined her location, and pulled her over. She was arrested after failing a DWI sobriety test. After pleading guilty to driving under the influence, she was sentenced to 10 days of weekend work release, 150 hours of community service, probation, and a license suspension. In 2019 10,142 lives were lost to alcohol impaired driving crashes.

Family Advocating

Social media is not limited to LE. It also provides a platform for victim’s families to keep attention on their cases. The father of a seventeen-year-old created a series of Facebook Live videos about a 2011 murder resulting in the arrest of Charles Garron. He was to a fifty-year prison term.

Instagram Selfies with Drugs, Money and Stolen Guns

Police in Palm Beach County charged a nineteen-year-old man with 142 felony charges, including possession of a weapon by a convicted felon, while investigating burglaries and jewel thefts in senior citizen communities. An officer found his Instagram account with incriminating photographs. A search warrant was executed, seizing stolen firearms and $250,000 in stolen property from over forty burglaries.

Bank Robbery Selfies

Police received a tip and located a social media posting by John E. Mogan II of himself with wads of cash in 2015. He was charged with robbing an Ashville, Ohio bank. He pled guilty and was sentenced to three years in prison. According to news reports, Morgan previously served prison time for another bank robbery.

Food Post Becomes the Smoking Gun

LE used Instagram to identify an ID thief who posted photographs of his dinner at a high-end steakhouse with a confidential informant (“CI”). The man who claimed he had 700,000 stolen identities and provided the CI a flash drive of stolen identities. The agents linked the flash drive to a “Troy Maye,” who the CI identified from Maye’s profile photograph. Authorities executed a search warrant on his residence and located flash drives containing the personal identifying information of thousands of ID theft victims. Nathaniel Troy Maye, a 44-year-old New York resident, was sentenced to sixty-six months in federal prison after pleading guilty to aggravated identity theft.

Wanted Man Turns Himself in After Facebook Challenge With Donuts

A person started trolling Redford Township Police during a Facebook Live community update. It was determined that he was a 21-year-old wanted for a probation violation for leaving the scene of a DWI collision. When asked to turn himself in, he challenged the PD to get 1000 shares and he would bring in donuts. The PD took the challenge. It went viral and within an hour reached that mark acquiring over 4000 shares. He kept his word and appeared with a dozen donuts. He faced 39 days in jail and had other outstanding warrants.

The examples in this article were readily available on the internet and on multiple news websites, along with photographs.

Under state Freedom of Information Laws, the public has a statutory right to know what enforcement actions LE is taking. Likewise, the media exercises their First Amendment rights to information daily across the country when publishing news. Cyber journalists are entitled to the same information when publishing news on the internet and social media. Traditional news organizations have adapted to online news to keep a share of the news market. LE agencies now live stream agency press conferences to communicating directly with the communities they serve.

Therefore the positive use of social media by LE should not be thrown out like bathwater when legal remedies exist when damages are caused.

“And now you know…the rest of the story.”

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?

Educational tools and data privacy

Advances in technology have forever changed education. More than ever, schools utilize online and interactive forums to enhance the learning process.

School social media pages are often used to communicate upcoming events and other news to large numbers of people who have an interest in organization while groups are designed to create communities of people. Students, parents and schools utilize social media to convey messages for widespread dissemination. The superintendent may want to give updates on the newest COVID restrictions, teachers communicate about the upcoming class trip and parents find a pedagogical group setting. Not to mention, Pace Law students generously share that updated syllabus before the night’s class.

In today’s world, being literate means more than just being able to read and write; we also need to know how to effectively navigate and find information online, operate a computer, use the digital medium for learning, manage online identity(s), communicate online, understand online social norms, and collaborate. Benefits of utilizing social media for educational use include creating a sense of community and promoting collaboration, enhancing communication, developing computer literacy and language skills, and incorporating student culture into the learning environment while allowing for a connection between persons abroad.

In turn, technology companies obtain a significant amount of personal information about the user, creating concerns in the educational realm about student safety and privacy which can, at times, fall under the Family Educational Rights and Privacy Act (FERPA), that was created to protect students’ personally identifiable information (PII) from unauthorized disclosure. Other rules and acts that attempt to protect educational records include Children’s Online Privacy Protection Act of 1998, (COPPA) and Internet and Protection of Pupil Rights Amendment (PPRA). FERPA does not require educational institutions to adopt specific security controls, posing a risk for student privacy. To complicate the matter of what student information should be protected, the school official exception of FERPA allows school districts to disclose PII to a third party provider serving a legitimate educational interest. However, FERPA may not be equipped to deal with modern data collection of student records and information to protect it when schools increasingly use third-party applications to provide valuable educational tools.

Online educational services collect a large amount of transactional data a/k/a “metadata” which refers to information about how long a particular student took to perform an online task, how many attempts the student made, and how long the student’s mouse hovered over an item, potentially indicating indecision. This can be a useful tool to educators but at what cost to students?

The potential exists for educational platforms to allow third-party data harvesting. Through contracts with educational institutions, Google provided a large range of products and services including Google Meet, Duo, Google Messaging, Gmail and the ability to share documents. A 2014 litigation case against Google included allegations that the company collected student emails and metadata to create secret user profiles for its advertising tools without consent. Similar to the facts when Facebook provided access to Cambridge Analytica.

In 2019 the FTC and Facebook settled on a $5 billion penalty for Facebook’s violations of previously issued FTC orders related to Facebook’s privacy practice.

When one visits a school’s Facebook page, the amount of time spent, and the “comments” and “likes” left, can become part of the data profile that Facebook has created for them. A school district page or group gives Facebook “another data point” on the users who visit it, said Doug Levin, the founder and president of EdTech Strategies, LLC, and some districts also have Facebook trackers on their district sites. Levin’s recent research report, “Tracking: EDU—Education Agency Website Security and Privacy Practices,” found that more than 25% of the 159 school websites he studied had embedded user tracking tools that reported information back to Facebook. These trackers can use information about users’ browsing history and other activity across the web—not just on Facebook—to target ads and most school district websites don’t disclose in their privacy policies that the data sharing is taking place. Sound familiar?

Cambridge Analytica, the political consulting firm, used data gathered in a personality quiz administered through Facebook to create voter profiles. Some 270,000 users downloaded the quiz app which then gave access to their profiles, and ultimately, access to their friends’ profiles and according to Facebook, affected 87 million users. Because of the information being inappropriately used surrounding the 2016 Presidential election scandal, Cambridge Analytica LLC recently filed in United States Bankruptcy Court.

All users and administrators should be educated on what data is collected and how that data is used. Schools need to maintain awareness of current state, federal and other pertinent laws that affect data and online educational services. Parents and students need to be aware of which online educational services are being used. Transparency needs to go both ways and students have an obligation to ask and ultimately know what data is being collected and how that data is being used.

One education research organization, the National Education Policy Center, has deleted its Facebook page entirely—and is suggesting schools do the same until companies are subject to greater accountability and transparency. Is that really an option though, with how big the services have become? Is there a happy (and safe) medium between writing on slate boards and sharing everything? Can Facebook play nice in the sand box and follow FTC orders? Does their cost benefit analysis favor repeated violations?

Perhaps FERPA, and other similar acts, need to be updated to include online learning programs and protection from data breach situations as seen with Facebook, Google and Cambridge Analytica.

How Defamation and Minor Protection Laws Ultimately Shaped the Internet

Kyiv, Ukraine – September 5, 2019: A paper cubes collection with printed logos of world-famous social networks and online messengers, such as Facebook, Instagram, YouTube, Telegram and others.

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?

Advertising in the Cloud

Thanks to social media, advertising to a broad range of people across physical and man-made borders has never been easier. Social media has transformed how people and businesses can interact throughout the world. In just a few moments a marketer can create a post advertising their product halfway across the world and almost everywhere in between. Not only that, but Susan, a charming cat lady in west London, can send her friend Linda, who’s visiting her son in Costa Rica an advertisement she saw for sunglasses she thinks Linda might like. The data collected by social media sites allows marketers to target specific groups of people with their advertisements. For example, if Susan was part of a few Facebook cat groups, she would undoubtedly receive more cat tower or toy related advertisements than the average person.

Advertising on social media also allows local stores or venues to advertise to the local communities, targeting groups of people in the local area. New jobs in this area are being created, young entrepreneurs are selling their social media skills to help small business owners create an online presence. Social media has also transformed the way stores advertise to people as well, no longer must stores rely on solely a posterboard, or scripted advertisement. Individuals with a large enough following on social media are sought out by companies to “review” or test their products for free.

Social media has transformed and expanded the marketplace exponentially. Who we can reach in the world, who we can market to and sell to has expanded beyond physical barriers. With these changes, and newfound capabilities through technology, comes a new legal frontier.

Today, most major brands and companies have their own social media account. Building a store’s “online presence” and promoting brand awareness has now become a priority for many marketing departments. According to Internet Advertising Revenue Report: Full Year 2019 Results & Q1 2020 Revenues, “The Interactive Advertising bureau, an industry trade association, and the research firm eMarketer estimate that U.S. social media advertising revenue was roughly $36 billion in 2019, making up approximately 30% of all digital advertising revenue,” they expect that it will increase to $43 billion in 2020.

The Pew Research Center estimated, “that in 2019, 72% of U.S. adults, or about 184 million U.S. adults, used at least one social media site, based on the results of a series of surveys.”

Companies and people are increasingly utilizing these tools, what are the legal implications?

This area of law is quickly growing. Advertisers can now directly reach their consumers in an instant, marketing their products at comparable prices. The FTC, Federal Trade Commission has expanded its enforcement actions in this area. Some examples of this are:

The Securities and Exchange Commission Regulation Fair Disclosure addresses, “ the selective disclosure of information by publicly traded companies and other issuers, and the SEC has clarified that disseminating information through social media outlets like Facebook and Twitter is allowed so long as investors have been alerted about which social media will be used to disseminate such information,”
The National Labor Relations Act, “While crafting an effective social media policy regarding who can post for a company or what is acceptable content to post relating to the company is important, companies need to ensure that the policy is not overly broad or can be interpreted as limiting employees’ rights related to protected concerted activity”
FDA, “ Even on social media platforms, businesses running promotions or advertising online have to be careful not to run afoul of FDA disclosure requirements”

According to the ABA there are two basic principles in advertising law which apply to any media:

Advertisements may be subject to more specific regulations regarding Children under the Children’s Online Privacy Protection Act (COPPA). This act gives parents control over protections and approvable ways to get verifiable parental consent.

The Future legality of our Data

Data brokers are companies that collect information about you and sell that data to other companies or individuals. This information can include everything from family birthdays, addresses, contacts, jobs, education, hobbies, interests, life events and health conditions. Currently, Data brokers are legal in most states. California and Vermont have enacted laws that require data brokers to register their operation in the state. Who owns your data? Should you? Should the sites you are creating the data on? Should it be free for companies to sell? Will states take this issue in different directions? If so, what would these implications be for companies and sites to keep up with?

Facebook’s market capitalization stands at $450 billion.

While there is uncertainty regarding this area of law, it is certain that it is new, expanding and will require much debate.

According to Custodians of the Internet: Platforms, Content Moderation, and the Hidden Decisions That Shape Social Media, “Collecting user data allows operators to offer different advertisements based on its potential relevance to different users.” The data collected by social media companies enables them to build complex strategies and sell advertising “space” targeting specific user groups to companies, organizations, and political campaigns (How Does Facebook Make Money). The capabilities here seem endless, “Social media operators place ad spaces in a marketplaces that runs an instantaneous auction with advertisers that can place automated bids.” With the ever expanding possibilities of social media comes a growing legal frontier.

Removing Content

Section 230, a provision of the 1996 Communications Decency Act, states 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” (47 U.S.C. § 230). This act shields social media companies from liability for content posted by their users and allows them to remove lawful but objectionable posts.

One legal issue that has been arising here is, advertisements are being taken down by the content monitoring algorithms. According to a Congressional Research Services report, during the COVID-19 pandemic social media companies relied more heavily on automated systems to monitor content. These systems could review large volumes of the content at a time however they mistakenly removed some content. “Facebook’s automated systems have reportedly removed ads from small businesses, mistakenly identifying them as content that violates its policies and causing the business to lose money during the appeals process” (Facebook’s AI Mistakenly Bans Ads for Struggling Businesses). This has affected a wide range of small businesses according to Facebook’s community standards transparency enforcement report. According to this same report, “In 2019, Facebook restored 23% of the 76 million appeals it received, and restored an additional 284 million pieces of content without an appeal—about 2% of the content that it took action on for violating its policies.”

Is Cyberbullying the Newest Form of Police Brutality?

Police departments across the country are calling keyboard warriors into action to help them solve crimes…but at what cost?

In a survey of 539 police departments in the U.S., 76% of departments said that they used their social media accounts to solicit tips on crimes. Departments post “arrested” photos to celebrate arrests, surveillance footage for suspect identification, and some even post themed wanted posters, like the Harford County Sheriff’s Office.

The process for using social media as an investigative tool is dangerously simple and the consequences can be brutal. A detective thinks posting on social media might help an investigation, so the department posts a video or picture asking for information. The community, armed with full names, addresses, and other personal information, responds with some tips and a lot of judgmental, threatening, and bigoted comments. Most police departments have no policy for removing posts after information has been gathered or cases are closed, even if the highlighted person is found to be innocent. A majority of people who are arrested are not even convicted of a crime.

Law enforcement’s use of social media in this way threatens the presumption of innocence, creates a culture of public humiliation, and often results in a comment section of bigoted and threatening comments.

On February 26, 2020, the Manhattan Beach Police Department posted a mugshot of Matthew Jacques on their Facebook and Instagram pages for their “Wanted Wednesday” social media series. The pages have 4,500 and 13,600, mostly local, followers, respectively. The post equated Matthew to a fugitive and commenters responded publicly with information about where he worked. Matthew tried to call off work out of fear of a citizen’s arrest. The fear turned out to be warranted when two strangers came to find him at his workplace. Matthew eventually lost his job because he was too afraid to return to work.

You may be thinking this is not a big deal. This guy was probably wanted for something really bad and the police needed help. After all, the post said the police had a warrant. Think again.

There was no active warrant for Matthew at the time, his only (already resolved) warrant came from taking too long to schedule remedial classes for a 2017 DUI. Matthew was publicly humiliated by the local police department. The department even refused to remove the social media posts after being notified of the truth. The result?

Matthew filed a complaint against the department for defamation (as well as libel per se and false light invasion of privacy). Typically, defamation requires the plaintiff to show:

1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the person or entity who is the subject of the statement.

Here, the department made a false statement – that there was a warrant. They published it on their social media, satisfying the second element. They did not check readily available public records that showed Matthew did not have a warrant. Finally, Matthew lived in fear and lost his job. Clearly, he was harmed.

The police department claimed their postings were protected by the California Constitution, governmental immunity, and the 1st Amendment. Fortunately, the court denied the department’s anti-SLAPP motion. Over a year after postings, the department took down the posting and settled the lawsuit with Matthew.

Some may think that Matthew’s case is an anomaly and that, usually, the negative attention is warranted and perhaps even socially beneficial because it further de-incentivizes criminal activity via humiliation and social stigma. However, most arrests don’t result in convictions, many of the police’s cyberbullying victims are likely innocent. Even if they are guilty, leaving these posts up can increase the barrier to societal re-entry, which can increase recidivism rates. A negative digital record can make finding jobs and housing more difficult. Many commenters assume the highlighted individual’s guilt and take to their keyboards to shame them.

Here’s one example of a post and comment section from the Toledo Police Department Facebook page:

Unless departments change their social media use policies, they will continue to face defamation lawsuits and continue to further the degradation of the presumption of innocence.

Police departments should discontinue the use of social media in the humiliating ways described above. At the very least, they should consider using this tactic only for violent, felonious crimes. Some departments have already changed their policies.

The San Francisco Police Department has stopped posting mugshots for criminal suspects on social media. According to Criminal Defense Attorney Mark Reichel, “The decision was made in consultation with the San Francisco Public Defender’s Office who argued that the practice of posting mugshots online had the potential to taint criminal trials and follow accused individuals long after any debt to society is paid.” For a discussion of some of the issues social media presents to maintaining a fair trial, see Social Media, Venue and the Right to a Fair Trial.

Do you think police departments should reconsider their social media policies?

Why it Matters: Lawyers, the Spread of Misinformation and Social Media

It is important to remember the role lawyers play in and how the public views public figures, attorneys and the judicial system. This is especially true when posts are made on social media platforms or when statements are made available to the public in any manner. Many recent occurrences bring this important situation to light, most notably Rudy Giuliani’s unproven campaign regarding the “Big Lie” a/k/a the stolen election. Attorneys and important public figures may need to be held to a higher standard of care and accountability due to the public’s heavy reliance on the truth of their statements. Because of this reliance, social media companies, and the Courts, are forced into action to curb the spread of false information.

Facts on the spread of information on the internet. So many people now rely on social media as a way of communication and as a news source, which can sometimes be their only source. Information online can now spread faster than any other news source in history. The science behind the spread of information online, is quite astounding (and there is actual science behind it!).

A Massachusetts Institute of Technology (MIT) study found that “It took the truth about six times as long as falsehood to reach 1500 people and 20 times as long as falsehood to reach a cascade depth of 10. As the truth never diffused beyond a depth of 10, we saw that falsehood reached a depth of 19 nearly 10 times faster than the truth reached a depth of 10.” These numbers show that false information spreads faster, farther and deeper than the truth. All users of social media are exposed and susceptible to false information, including attorneys, and our ability to discern true versus false information has become distorted leaving many users vulnerable.

What causes of the spread of misinformation and who is susceptible? The American Psychological Association has published information on the causes of misinformation spreading and who is most susceptible. Researchers looked at individual differences and identified that “[b]roadly, political conservativism and lower levels of educational attainment are correlated with an increase in susceptibility to fake news.” Further, “[s]ix ‘degrees of manipulation’—impersonation, conspiracy, emotion, polarization, discrediting, and trolling—are used to spread misinformation and disinformation.” A false news story may quote a fake expert, use emotional language, or propose a conspiracy theory in order to manipulate readers.

People use the following five criteria to decide whether information is true: 1) compatibility with other known information, 2) credibility of the source, 3) whether others believe it, 4) whether the information is internally consistent, and 5) whether there is supporting evidence. The study also shows that people are more likely to accept misinformation as fact if it’s easy to hear or read. “We want people to understand that disinformation is fundamentally exploitative—that it tries to use our religion, our patriotism, and our desire for justice to outrage us and to dupe us into faulty reasoning,” says Peter Adams, News Literacy Project’s senior vice president of education. “Much of that is a psychological phenomenon.”This information may be helpful in understanding how a once highly respected lawyer and politician, is now the focus of discipline-committee-attention.

Rudy Giuliani. Social media is important to the legal profession because the court systems and attorneys use it to reach the public and potential clients. Consequently, it is of utmost importance to respect social media and to know how it functions to make it work for the intended purpose. Rudy Giuliani, attorney, former Mayor of New York City and personal counsel to President Trump, is the most prominent and current example of an attorney who used social media to spread misinformation. Giuliani is currently involved in numerous lawsuits for spewing a theory of election fraud that was ultimately disproved. Intriguingly, even though the claims lacked evidence to support them and were ultimately dispelled by the Judicial System, members of society believed these claims as truth while a large number of people still believe them.

Giuliani made these claims on mainstream media, his YouTube channel and seemingly anyone that would listen including Fox News. An anonymous source at Fox News stated, “We turned so far right we went crazy.” Giuliani reportedly earned monies making plugs to sell items during interviews and on his YouTube channel while making the statements at issue. Smartmatic filed suit against Rudy Giuliani and Fox News amongst others which is separate from the Dominion suit filed against Giuliani. These two suits encompass the same general claims, that Giuliani made false statements that the 2020 US Presidential election was stolen resulting in irreputable harm to companies.

Both the NYC Bar Association and the New York State Bar Association filed complaints against Mr. Giuliani requesting an investigation into his conduct.

The Appellate Division’s First Judicial Department of the New York Supreme Court suspended Giuliani’s law license on an interim basis in a June 24, 2021 decision concluding that his conduct threatened public interest. Not only did his behavior threaten public interest but it also tarnished the reputation of lawyers and the judicial system as a whole. The opinion further states, “When false statements are made by an attorney, it also erodes public confidence in the legal profession and its role as a crucial source of reliable information.”

Other examples of attorney epic-fails. An Illinois attorney wrote in her blog post referring to a judge as being “a total asshole,” and in another blog entry referred to a judge as “Judge Clueless.” The attorney also wrote about client specific cases and identified her clients by jail number or first name. That attorney received a 60 days suspension and was terminated from her employment as an Assistant Public Defender. Here, the attorney’s opinion, while it is hers and she has a right to it, could influence other court system employees, attorneys, judges or lay people entering the judicial system for whatever reason resulting in an influenced preconceived notion of the judge and the judge’s ability to render decisions in a case.

A Tennessee lawyer was suspended for 60 days for giving Facebook advise on how to kill and ex-boyfriend and make it look like self-defense while providing information on the new stand your ground law and the castle doctrine. Because a Florida lawyer made disparaging statements and accusations of judicial witchcraft, that attorney was disbarred and arrested!

Lawyers are held to a higher standard. Period. While Giuliani’s attorneys are arguing his right to make those statements are protected under his First Amendment right to free speech, “lawyers, as professionals, are subjected to speech restrictions that would not ordinarily apply to lay persons.” Especially, when it comes to judiciary review committees.

The legal system of attorneys is primarily a self-governing entity due to the professional legal standards inherent in the job. Attorneys swear an oath to support the Constitution of the United States before admission to practice. Attorneys are expected to uphold certain legal standards, enforce other attorneys to uphold those legal standards and, if necessary, report another attorney’s actions. A grievance committee is used to deter and investigate unethical conduct which can result in sanctions or commencement of a formal disciplinary proceeding at the Appellate Court level, as in the case of Mr. Giuliani’s interim suspension.

Rules to keep in mind as a practicing attorney. These rules come from the NY Rules of professional conduct.

Rule 4.1 governs Truthfulness in Statements to Others and reads, in part, “In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.”
Rule 8.3 governs Reporting Professional Misconduct and reads in part, “(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.”
Rule 8.4 governs Misconduct and reads, in part, “A lawyer or law firm shall not: … (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation” and “(h) engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.”

What can be done to curb the spread of misinformation going forward? It seems inevitable that something has to give when it comes to social media and the downward spiral that may or may not hit rock bottom but only time will tell. Social media plays an important role in how our society communicates, shares ideas and inspires others. But is self-regulation enough? Should there be heightened standards for persons of influence? Should social media be regulated or are the companies sufficiently regulating themselves? Can the government work together with social media platforms to achieve a higher standard? Is judicial witchcraft even a thing? Regardless, your license to practice law is what it’s all about so choose your words wisely.

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.

Category: Facebook

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