Miracles Can Be Misleading

Want to lose 20 pounds in 4 days? Try this *insert any miracle weight-loss product * and you’ll be skinny in no time!

Miracle weight-loss products (MWLP) are dietary supplements that either work as an appetite suppressant or forcefully induce weight loss. These products are not approved or indicated by pharmaceutical agencies as weight loss prophylactics. Social media users are continuously bombarded with the newest weight-loss products via targeted advertisements and endorsements from their favorite influencers. Users are force fed false promises of achieving the picture-perfect body while companies are profiting off their delusions. Influencer marketing has increased significantly as social media becomes more and more prevalent. 86 percent of women use social media for purchasing advice. 70 percent of teens trust influencers more than traditional celebrities. If you’re on social media, then you’ve seen your favorite influencer endorsing some form of a MWLP and you probably thought to yourself “well if Kylie Jenner is using it, it must be legit.”

The advertisements of MWLP are promoting an unrealistic and oversexualized body image. This trend of selling skinny has detrimental consequences, often leading to body image issues, such as body dysmorphia and various eating disorders. In 2011, the Florida House Experience conducted a study among 1,000 men and women. The study revealed that 87 percent of women and 65 percent of men compare their bodies to those they see on social media. From the 1,000 subjects, 50 percent of the women and 37 percent of the men viewed their bodies unfavorably when compared to those they saw on social media. In 2019, Project Know, a nonprofit organization that studies addictive behaviors, conducted a study which suggested that social media can worsen genetic and psychological predispositions to eating disorders.

Who Is In Charge?

The collateral damages that advertisements of MWLP have on a social media user’s body image is a societal concern. As the world becomes more digital, even more creators of MWLP are going to rely on influencers to generate revenue for their products, but who is in charge of monitoring the truthfulness of these advertisements?

In the United States, the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) are the two federal regulators responsible for promulgating regulations relating to dietary supplements and other MWLP. While the FDA is responsible for the labeling of supplements, they lack jurisdiction over advertising. Therefore, the FTC is primarily responsible for advertisements that promote supplements and over-the-counter drugs.

The FTC regulates MWLP advertising through the Federal Trade Commission Act of 1914 (the Act). Sections 5 and 12 of the Act collectively prohibit “false advertising” and “deceptive acts or practices” in the marketing and sales of consumer products, and grants authority to the FTC to take action against those companies. An advertisement is in violation of the Act when it is false, misleading, or unsubstantiated. An advertisement is false or misleading when it contains “objective, material representation that is likely to deceive consumers acting reasonably under the circumstances.” An advertisement is unsubstantiated when it lacks “a reasonable basis for its contained representation.” With the rise of influencer marketing, the Act also requires influencers to clearly disclose when they have a financial or other relationship with the product they are promoting.

Under the Act, the FTC has taken action against companies that falsely advertise MWLP. The FTC typically brings enforcement claims against companies by alleging that the advertiser’s claims lack substantiation. To determine the specific level and type of substantiation required, the FTC considers what is known as the “Pfizer factors” established In re Pfizer. These factors include:

- The type and specificity of the claim made.
- The type of product.
- The possible consequences of a false claim.
- The degree of reliance by consumers on the claims.
- The type, and accessibility, of evidence adequate to form a reasonable basis for making the particular claims.

In 2014, the FTC applied the Pfizer factors when they brought an enforcement action seeking a permanent injunction against Sensa Products, LLC. Since 2008, Sensa sold a powder weight loss product that allegedly could make an individual lose 30 pounds in six months without dieting or exercise. The company advertised their product via print, radio, endorsements, and online ads. The FTC claimed that Sensa’s marketing techniques were false and deceptive because they lacked evidence to support their health claims, i.e., losing 30 pounds in six months. Furthermore, the FTC additionally claimed that Sensa violated the Act by failing to disclose that their endorsers were given financial incentives for their customer testimonials. Ultimately, Sensa settled, and the FTC was granted the permanent injunction.

What Else Can We Do?

Currently, the FTC, utilizing its authority under the Act, is the main legal recourse for removing these deceitful advertisements from social media. Unfortunately, social media platforms, such as Facebook, Twitter, Instagram, etc., cannot be liable for the post of other users. Under section 230 of the Communications Decency Act, “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.” That means, social media platforms cannot be held responsible for the misleading advertisements of MWLP; regardless of if the advertisement is through an influencer or the companies own social media page and regardless of the collateral consequences that these advertisements create.

However, there are other courses of action that social media users and social media platforms have taken to prevent these advertisements from poisoning the body images of users. Many social media influencers and celebrities have rose to the occasion to have MWLP advertisements removed. In fact, in 2018, Jameela Jamil, an actress starring on The Good Place, launched an Instagram account called I Weigh which “encourages women to feel and look beyond the flesh on their bones.” Influencer activism has led to Instagram and Facebook blocking users, under the age of 18, from viewing posts advertising certain weight loss products or other cosmetic procedures. While these are small steps in the right direction, more work certainly needs to be done.

Is Social Media Really Worth It?

Human beings are naturally social. We interact with one another every single day in many different ways. Current day, one of the most common ways we interact with one another is on social media. Each year that goes by the number of individuals using social media increases. The number of social media users worldwide in 2019 was 3.484 billion, up 9% from 2018. The numbers increased dramatically during the 2020 Covid-19 pandemic. In 2020, the number of social media users jumped to 4.5 billion and it increases everyday.

Along with the increasing number of social media users, the number of individuals suffering from mental health issues is also increasing. Mental health is defined as a state of well-being in which people understand their abilities, solve everyday life problems, work well, and make a significant contribution to the lives of their communities. Its very interesting to think about how and why social media can effect an individuals mental state so greatly. The Displaced Behavior Theory may help explain why social media shows a connection with mental health. According to the theory, people who spend more time in sedentary behaviors such as social media use have less time for face-to-face social interaction, both of which have been proven to be protective against mental disorders . For example, the more time an individual spends using social media, the less time this individual spends on their own social relationships off screen.

Believe it or not, many studies have linked the use of Facebook in young adults to increased levels of anxiety, stress and depression. I know based on my own personal experiences that life changed greatly when Facebook was introduced to my generation in Middle School. We went from going for walks around town, movie dates and phone calls to sitting in front of a computer screen for hours straight trying to figure out who posted the best profile picture that night or who received the most likes and comments on a post. Based on my own experiences, I believe this is when cyberbullying became a huge issue. Individuals, especially young teens, take into account everyone’s opinion’s and comments on social media sites like Facebook, Instagram and Snapchat. This why mental health is associated with the use of social media. Social media can create a lot of pressure to create the stereotype that others want to see, its almost like a popularity contest.

It makes me wonder how far is too far? When will Social Media platforms truly censor cyberbullying and put a stop to the rise of mental health issues associated with using these sites. Studies have proven that these platforms cause extreme mental health problems in individuals. The individuals who are mostly affected by this range from 12-17 years of age. I believe that if we regulate the age groups allowed to join these sights it may be helpful to stop the detrimental affects these sights have on teenagers. It boggles my mind to think many teenagers would still be alive if they did not download a social media platform or they would not suffer from mental health issues. We really have to think as parents, friends and family members if downloading social media platforms is really worth it.

Can you think of any solutions to this growing problem? At what age would you let your child use social media?

A Uniquely Bipartisan Push to Amend/Repeal CDA 230

Last month, I wrote a blog post about the history and importance of the Communications Decency Act, section 230 (CDA 230). I ended that blog post by acknowledging the recent push to amend or repeal section 230 of the CDA. In this blog post, I delve deeper into the politics behind the push to amend or repeal this legislation.

“THE 26 WORDS THAT SHAPED THE INTERNET”

If you are unfamiliar with CDA 230, it is the sole legislation that governs the internet world. Also known as “the 26 words that shaped the internet” Congress specifically articulated in the act that the internet is able to flourish, due to a “minimum of government regulation.” This language has resulted in an un-regulated internet, ultimately leading to problems concerning misinformation.

Additionally, CDA 230(c)(2) limits civil liability for posts that social media companies publish. This has caused problems because social media companies lack motivation to filter and censor posts that contain misinformation.

“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).

Section 230’s liability shade has been extended far beyond Congress’s original intent, which was to protect social media companies against defamation claims. The features of this legislation have resulted in a growing call to update section 230.

In this day and age, an idea or movement rarely gains bi-partisan support anymore. Interestingly, though, amending, or repealing section 230 has gained recent bipartisan support. As expected, however, each party has differing reasons as to why the law should be changed.

BIPARTISAN OPPOSITION

Although the two political parties are in agreement that the legislation should be amended, their reasoning behind it stems from differing places. Republicans tend to criticize CDA 230 for allowing social media companies to selectively censor conservative actors and posts. In contrast, democrats criticize the law for allowing social media companies to disseminate false, and deceptive information.

DEMOCRATIC OPPOSITION

On the democratic side of the aisle, President Joe Biden has repeatedly called for Congress to repeal the law. In an interview with The New York Times, President Biden was asked about his personal view regarding CDA 230, in which he replied…

“it should be revoked. It should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false, and we should be setting standards not unlike the Europeans are doing relative to privacy. You guys still have editors. I’m sitting with them. Not a joke. There is no editorial impact at all on Facebook. None. None whatsoever. It’s irresponsible. It’s totally irresponsible.”

House Speaker Nancy Pelosi has also voiced opposition, calling CDA 230 “a gift” to the tech industry that could be taken away.

The law has often been credited by the left for fueling misinformation campaigns, like Trumps voter fraud theory, and false COVID information. In response, social media platforms began marking certain posts as unreliable. This led to the reasoning behind republicans opposition to section 230.

REPUBLICAN OPPOSITION

Former President Trump has voiced his opposition to CDA 230 numerous times. He first started calling for the repeal of the legislation in May of 2020, after Twitter flagged two of his tweets regarding mail-in voting, with a warning label that stated “Get the facts about mail-in ballots.” In fact, in December, Donald Trump, the current President at the time, threatened to veto the National Defense Authorization Act annual defense funding bill, if CDA 230 was not revoked. The former presidents opposition was so strong, he issued an Executive Order in May of last year urging the government to re-visit CDA 230. Within the order, the former president wrote…

“Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor …”

The executive order also asked the Federal Communications Commission to write regulations that would remove protections for companies that “censored” speech online. Although the order didn’t technically affect CDA 230, and was later revoked by President Biden, it resulted in increased attention on this archaic legislation.

LONE SUPPORTERS

Support for the law has not completely vanished, however. As expected, many social media giants support leaving CDA 230 untouched. The Internet Association, an industry group representing some of the largest tech companies like Google, Facebook, Amazon, and Microsoft, recently announced that the “best of the internet would disappear” without section 230, warning that it would lead to numerous companies being subject to an array of lawsuits.

In a Senate Judiciary hearing in October 2020, Facebook CEO Mark Zuckerberg and Twitter CEO Jack Dorsey warned that revoking Section 230 could…

“collapse how we communicate on the Internet.”

However, Mark Zuckerberg took a more moderate position as the hearing continued, telling Congress that he thought lawmakers should update the law.

“The debate about Section 230 shows that people of all political persuasions are unhappy with the status quo,” Zuckerberg said. “People want to know that companies are taking responsibility for combating harmful content — especially illegal activity — on their platforms.”Mark Zuckerberg

Facebook has taken a more moderate approach by acknowledging that 230 should be updated. This approach is likely in response to public pressure due to increased awareness. Irregardless, it signifies a likely chance that section 23o will be updated in the future, since Facebook represents one of the largest social media companies protected by 230. A complete repeal of this law would create such major impacts, however, that this scenerio seems unlikely to happen. Nevertheless, growing calls for change, and a Democratic controlled Congress points to a likelihood of future revision of the section.

DIFFERING OPINIONS

Although both sides of Washington, and even some social media companies, agree the law should be amended; the two sides differ greatly on how to change the law.

As mentioned before, President Biden has voiced his support for repealing CDA 230 altogether. Alternatively, senior members of his party, like Nancy Pelosi have suggested simply revising or updating the section.

Republican Josh Hawley recently introduced legislation to amend section 230. The proposed legislation would require companies to prove a “duty of good faith,” when moderating their sites, in order to receive section 230 immunity. The legislation included a $5,000 fee for companies that don’t comply with the legislation.

Senator Ted Cruz has advocated for a complete repeal of section 230, reasoning that…

“big tech enjoys an immunity from liability on the assumption they would be neutral and fair. If they’re not going to be neutral and fair, if they’re going to be biased, we should repeal the immunity from liability so they should be liable like the rest of us.”

Adding to the confusion of the section 230 debate, many fear the possible implications of repealing or amending the law.

FEAR OF CHANGE

Because CDA 230 has been referred to as “the first amendment of the internet,” many people fear that repealing this section altogether would result in a limitation on free speech online. Although President Biden has voiced his support for this approach, it seems unlikely to happen, as it would result in massive implications.

One major implication of repealing or amending CDA 230 is that it could allow for numerous lawsuits against social media companies. Not only would major social media companies be affected by this, but even smaller companies like Slice, could become the subject of defamation litigation by allowing reviews to be posted on their website. This could lead to an existence of less social media platforms, as some would not be able to afford legal fees. Many fear that these companies would further censor online posts for fear of being sued. This may also result in higher costs for these platforms. In contrast, companies could react by allowing everything, and anything to be posted, which could result in an unwelcome online environment. This would be in stark contrast to the Congress’s original intent in the creation of the CDA, to protect children from seeing indecent posts on the internet.

FUTURE CHANGE..?

Because of the intricacy of the internet, and the archaic nature of CDA 230, there are many differing opinions as to how to successfully fix the problems the section creates. There are also many fears about the consequences of getting rid of the legislation. Are there any revisions you can think of that could successfully deal with the republicans main concern, censorship? Can you think of any solutions for dealing with the democrats concern of limiting the spread of misinformation. Do you think there is any chance that section 230 will be repealed altogether? If the legislation were to be repealed, would new legislation need to be created to replace CDA 230?

AI Avatars: Seeing is Believing

Have you ever heard of deepfake? The term deepfake comes from “deep learning,” a set of intelligent algorithms that can learn and make decisions on their own. By applying deep learning, deepfake technology replaces faces from the original images or videos with another person’s likeness.

What does deep learning have to do with switching faces?

Basically, deepfake allows AI to learn automatically from its data collection, which means the more people try deepfake, the faster AI learns, thereby making its content more real.

Deepfake enables anyone to create “fake” media.

How does Deepfake work?

First, an AI algorithm called an encoder collects endless face shots of two people. The encoder then detects similarities between the two faces and compresses the images so they can be delivered. A second AI algorithm called a decoder receives the package and recovers it to reconstruct the images to perform a face swap.

Another way deepfake uses to swap faces is GAN, or a generative adversarial network. A GAN adds two AI algorithms against each other, unlike the first method where encoder and decoder work hand in hand.
The first algorithm, the generator, is given random noise and converts it into an image. This synthetic image is then added to a stream of real photos like celebrities. This combination of images gets delivered to the second algorithm, the discriminator. After repeating this process countless times, the generator and discriminator both improve. As a result, the generator creates completely lifelike faces.

For instance, Artist Bill Posters used deepfake technology to create a fake video of Mark Zuckerberg , saying that Facebook’s mission is to manipulate its users.

Real enough?

How about this. Consider having Paris Hilton’s famous quote, “If you don’t even know what to say, just be like, ‘That’s hot,’” replaced by Vladimir Putin, President of Russia. Those who don’t know either will believe that Putin is a Playboy editor-in-chief.

Yes, we can all laugh at these fake jokes. But when something becomes overly popular, it has to come with a price.

Originally, deepfake was developed by an online user of the same name for the purpose of entertainment, as the user had put it.

Yes, Deepfake meant pornography.

The biggest problem of deepfake is that it is challenging to detect the difference and figure out which one is the original. It has become more than just superimposing one face onto another.

Researchers found that more than 95% of deepfake videos were pornographic, and 99% of those videos had faces replaced with female celebrities. Experts explained that these fake videos lead to the weaponization of artificial intelligence used against women, perpetuating a cycle of humiliation, harassment, and abuse.

How do you spot the difference?

As mentioned earlier, the algorithms are fast learners, so for every breath we take, deepfake media becomes more real. Luckily, research showed that deepfake faces do not blink normally or even blink at all. That sounds like one easy method to remember. Well, let’s not get ahead of ourselves just yet. When it comes to machine learning, nearly every problem gets corrected as soon as it gets revealed. That is how algorithms learn. So, unfortunately, the famous blink issue already had been solved.

But not so fast. We humans may not learn as quickly as machines, but we can be attentive and creative, which are some qualities that tin cans cannot possess, at least for now.
It only takes extra attention to detect Deepfake. Ask these questions to figure out the magic:

Does the skin look airbrushed?
Does the voice synchronize with the mouth movements?
Is the lighting natural, or does it make sense to have that lighting on that person’s face?

For example, the background may be dark, but the person may be wearing a pair of shiny glasses reflecting the sun’s rays.

Oftentimes, deepfake contents are labeled as deepfake because creators want to display themselves as artists and show off their works.
In 2018, a software named Deeptrace was developed to detect deepfake contents. A deeptrace lab reported that deepfake videos are proliferating online, and its rapid growth is “supported by the growing commodification of tools and services that lower the barrier for non-experts—from well-maintained open source libraries to cheap deepfakes-as-a-service websites.”

The pros and cons of deepfake

It may be self-explanatory to name the cons, but here are some other risks deepfake imposes:

Destabilization: the misuse of deepfake can destabilize politics and international relations by falsely implicating political figures in scandals.
Cybersecurity: the technology can also negatively influence cybersecurity by having fake political figures incite aggression.
Fraud: audio deepfake can clone voices to convince people to believe that they are talking to actual people and induce them into giving away private information.

Well then, are there any pros to deepfake technology other than having entertainment values? Surprisingly, a few:

Accessibility: deepfake creates various vocal personas that can turn text into speech, which can help with speech impediments.
Education: deepfake can deliver innovative lessons that are more engaging and interactive than traditional lessons. For example, deepfake can bring famous historical figures back to life and explain what happened during their time. Deepfake technology, when used responsibly, can be served as a better learning tool.
Creativity: instead of hiring a professional narrator, implementing artificial storytelling using audio deepfake can tell a captivating story and let its users do so only at a fraction of the cost.

If people use deepfake technology with high ethical and moral standards on their shoulders, it can create opportunities for everyone.

Case

In a recent custody dispute in the UK, the mother presented an audio file to prove that the father had no right to take away their child. In the audio, the father was heard making a series of violent threats towards his wife.

The audio file was compelling evidence. When people thought the mother would be the one to walk out with a smile on her face, the father’s attorney thought something was not right. The attorney challenged the evidence, and it was revealed through forensic analysis that the audio was tailored using a deepfake technology.

This lawsuit is still pending. But do you see any other problems in this lawsuit? We are living in an era where evidence tampering is easily available to anyone with the Internet. It would require more scrutiny to figure out whether evidence is altered.

Current legislation on deepfake.

The National Defense Authorization Act for Fiscal Year 2021 (“NDAA”), which became law as Congress voted to override former President Trump’s veto, also requires the Department of Homeland Security (“DHS”) to issue an annual report for the next five years on manipulated media and deepfakes.

So far, only three states took action against deepfake technology.
On September 1, 2019, Texas became the first state to prohibit the creation and distribution of deepfake content intended to harm candidates for public office or influence elections.
Similarly, California also bans the creation of “videos, images, or audio of politicians doctored to resemble real footage within 60 days of an election.”
Also, in 2019, Virginia banned deepfake pornography.

What else does the law say?

Deep fakes are not illegal per se. But depending on the content, a deepfake can breach data protection law, infringe copyright and defamation. Additionally, if someone shares non-consensual content or commits a revenge porn crime, it is punishable depending on the state law. For example, in New York City, the penalties for committing a revenge porn crime are up to one year in jail and a fine of up to $1,000 in criminal court.

Henry Ajder, head of threat intelligence at Deeptrace, raised another issue: “plausible deniability,” where deepfake can wrongfully provide an opportunity for anyone to dismiss actual events as fake or cover them up with fake events.

What about the First Amendment rights?

The First Amendment of the U.S. Constitution states:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

There is no doubt that injunctions against deepfakes are likely to face First Amendment challenges. The First Amendment will be the biggest challenge to overcome. Even if the lawsuit survives, lack of jurisdiction over extraterritorial publishers would inhibit their effectiveness, and injunctions will not be granted unless under particular circumstances such as obscenity and copyright infringement.

How does defamation law apply to deepfake?

How about defamation laws? Will it apply to deepfake?

Defamation is a statement that injures a third party’s reputation. To prove defamation, a plaintiff must show all four:

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.

As you can see, deepfake claims are not likely to succeed under defamation because it is difficult to prove that the content was intended to be a statement of fact. All that the defendant will need to protect themselves from defamation claims is to have the word “fake” somewhere in the content. To make it less of a drag, they can simply say that they used deep”fake” to publish their content.

Pursuing a defamation claim against nonconsensual deepfake pornography also poses a problem. The central theme of the claim is the nonconsensual part, and our current defamation law fails to address whether or not the publication was consented to by the victim.

To reflect our transformative impact of artificial intelligence, I would suggest making new legislation to regulate AI-backed technology like deepfake. Perhaps this could lower the hurdle that plaintiffs must face.
What are your suggestions in regards to deepfake? Share your thoughts!

Is your data protected? By who? What rights do you have over your personal information once it has entered the world wide web?

– Who doesn’t protect your data?
– History of the “data” or personal information legislation
– A July 2021 update on the start of legislation regarding data protection on the internet
– What you can do to protect your data for now.

Ever since the 2018 publicized Facebook data breach, I have been curious about what data exactly can be stored, used and “understood” by computer algorithms and what the legal implications may be. At first, I was excited about this as a new tool. I tend to shop and look for things that are, at least branded as sustainably sourced and environmentally friendly. For me, the idea that I would only be advertised these types of items, no plastics that may off gas sounded great to me. It wasn’t until I heard some of my peers’ concerns before I seriously questioned the dangers of data collection and how this information could be used to harm.

Social media websites, commerce websites and mobile apps have become integral parts in many of our everyday lives. We use them to connect with friends online, find like-minded people through virtual groups from across the world. These sites are used to share private, work, and “public” information. The data collected from social media can be looked at as a tool or an invasion of privacy. User data collection could give us access to knowledge which allows us to learn more about our human nature. For example, this data can tell us about different demographics and how users use each platform. However, it also raises new issues on what should be private, and who owns the data created by user usage (the platform/company or individual using it).

What are our governments doing to protect our data – personal information- rights? Do individuals even have data rights over their personal information on the internet? If so, how will these rights be protected or regulated for? And how will legislation attempt to regulate businesses? These are all questions that I have wondered about and hope to start to answer here. After watching Mark Zuckerberg explain to congressmen how companies make money on the internet, while remaining fre, I had little faith that our legal system would catch up to how companies and computer programmers are using these new technologies. Many large social media companies remain free making money selling the data and virtual advertising space, which has its own legal issues. Would you rather pay for Facebook, Instagram, Twitter, Snapchat ect., or allow them to sell your data? If we demand regulation and privacy for our data we may need to make this choice.

Privacy on the Internet

Federally in the United States, this area of law is unregulated territory, leaving it up to the tech and social media companies for now. However, some states are starting to create their own laws. See the pictures below.

How has the government regulated these areas thus far?

There are no general consumer privacy and security laws in the federal government legislation. However, as you may remember the US government imposed a whopping $5 billion dollar penalty for Facebook’s data breach. The order also required “Facebook to restructure its approach to privacy… and establishes strong new mechanisms to ensure that Facebook executives are accountable for the decisions they make about privacy, and that those decisions are subject to meaningful oversight” (FTC). This was under the Federal Trade Commission Act (FTC).

This act, past in 1914, created a government agency and prohibited companies from engaging in “unfair or deceptive acts or practises” (section 5 FTC). It protected consumers from misleading or boldly false advertising by some of America’s largest leading consumer brands (Federal Trade Commission Overview).

Interesting here is why Facebook had to pay a settlement under the Federal Trade Commission act. Under the Federal Trade commission act only companies which, “boldly false advertise,” “mislead,” or “misrepresent.” Facebook told consumers that the site did not sell their data and that users could restrict access Facebook had to data if they set it up by clicking certain boxes. The opposite was true. Facebook did not violate any internet privacy laws (there weren’t any). In this case, a 20th century legislation created, in large, to protect consumers from companies selling fake merchandise. If Facebook had said nothing about data privacy on their website they wouldn’t have been liable for anything. Since this case, more legal regulations have been introduced.

US Privacy Act of 1974

In order to understand where the legal field will go it is important to understand the history of US Privacy Rights. This act restricted what data, of personal information, US government agencies could store on their (first) computer databases. This act also gave individual’s certain rights, such as the right to access any of the data that is held by government agencies, and the right to correct any errors. It also restricted what and how the information was shared between federal and non-federal agencies, allowing it only under specific circumstances.

HIPAA, GLBA, COPPA

These three acts further protect individuals personal information.

HIPAA, the Health Insurance portability and Accountability Act, was put in place to regulate health insurance and protect people’s personal health information. This act laid down certain ground rules for confidentiality requirements. (HIPAA for Professionals).

The Gramm-Leach- Bliley Act (GLBA), passed in 1999, protects nonpublic personal information, defined as “any information collected about an individual in connection with providing a financial product or service, unless that information is otherwise publicly available.”

The Children’s Online Privacy Protection Act (CPPA), enacted in 1998,regulates the personal information that is collected from minors. The law “imposes certain requirements on operators of websites or online services directed to (or have actual knowledge of) children under 13 years of age.”

Worldwide Internet Data Privacy

Currently, the US does not have any federal level consumer data privacy or security law. According to the “United Nations Conference on Trade and Development, 107 countries have data privacy rules in place including 66 developing nations.”

The European Union passed the General Data Protection Regulation in 2018. This law went through a long legislative process, the data privacy and security rights law was officially approved in 2016 and went into effect May 2018. It put specific obligations on data processors and the cloud. The regulation also hopes to give individuals the ability to sue processors of data directly for damages, limit and minimize the retention of data that is kept by default and give consumers the right to correct incorrect information. The GDPR also requires explicit consent when consumers give their data. “Processing personal data is generally prohibited, unless it is expressly allowed by law, or the data subject has consented to the processing.”

THE U.S.’s strictest state so far:

So far only three states, California, Colorado and Virginia have actually enacted comprehensive consumer data privacy laws according to the National Conference of State Legislatures as of July 22, 2021. The closest US law to the EU’s GDPR, is California’s Consumer Privacy Act (currently U.S.’s strictest regulation on internet data privacy). In California this act requires businesses to clearly state what types of personal data will be collected from consumers and how this information will be used, managed, shared, and sold by companies or entities doing business with and compiling information about California Residents (CCPA AND GDPR Comparison chart.) This “landmark law” secures new privacy rights for California consumers, including:

The right to know about the personal information a business collects about them and how it is used and shared;
The right to delete personal information collected from them (with some exceptions);
The right to opt-out of the sale of their personal information; and
The right to non-discrimination for exercising their CCPA rights. (Office of Attorney General on the CCPA).

New York State Privacy Law Update June 2021

In the New York legislature there were a number of privacy bills that were pending, including the “It’s Your Data Act,” the “New York Privacy Act,” the “Digital Fairness Act,” and the “New York Data Accountability and Transparency Act.” Most of the bills never made it out of committee.

US LEGISLATION TRACKER

The “It’s Your Data Act” proposed to provide protections and transparency in the collection, use, retention, and sharing of personal information.

From the New York State Senate Summary:

“The ‘NY Privacy Act’ proposed to enact would require companies to disclose their methods of identifying personal information, to place special safeguards around data sharing, and to allow consumers to obtain the names of all entities with whom their information is shared”, creating a special account to fund a new Office of Privacy and Data Protection. It is currently on the floor calendar, and no action has yet been taken on it.

The definition of personal information here is – “any information related to an identified or identifiable person” – includes a very extensive list of identifiers: biometric, email addresses, network information and more.

What are Data Privacy Rights which have been identified thus far?

Provisions in Chart

CONSUMER RIGHTS

The right of access to personal information collected or shared – The right for a consumer to access from a business/data controller the information or categories of information collected about a consumer, the information or categories of information shared with third parties, or the specific third parties or categories of third parties to which the information was shared; or, some combination of similar information.
The right to rectification — The right for a consumer to request that incorrect or outdated personal information be corrected but not deleted.
The right to deletion — The right for a consumer to request deletion of personal information about the consumer under certain conditions.
The right to restriction of processing — The right for a consumer to restrict a business’s ability to process personal information about the consumer.
The right to data portability — The right for a consumer to request personal information about the consumer be disclosed in a common file format.
The right to opt out of the sale of personal information — The right for a consumer to opt out of the sale of personal information about the consumer to third parties.
The right against automated decision making — A prohibition against a business making decisions about a consumer based solely on an automated process without human input.
A consumer private right of action — The right for a consumer to seek civil damages from a business for violations of a statute.

BUSINESS OBLIGATIONS

“A strict opt-in for the sale of personal information of a consumer less than a certain age” — A restriction placed on a business to treat consumers under a certain age with an opt-in default for the sale of their personal information.
Notice/transparency requirements — An obligation placed on a business to provide notice to consumers about certain data practices, privacy operations, and/or privacy programs.
Mandated risk assessment — An obligation placed on a business to conduct formal risk assessments of privacy and/or security projects or procedures.
A prohibition on discrimination against a consumer for exercising a right — A prohibition against a business treating a consumer who exercises a consumer right differently than a consumer who does not exercise a right.
A purpose/processing limitation — prohibits the collection/processing of personal information except for a specific purpose.
A strict opt-in for the sale of personal information of a consumer less than a certain age
Notice/transparency requirements
Mandated risk assessment
A prohibition on discrimination against a consumer for exercising a right
A purpose/processing limitation

While many rights and obligations are starting to be recognized, again, there is not yet legislation to protect them.

So, what can you do to protect yourself?

1. Update and Optimize Your Privacy Settings.

Review what apps have access to facebook data and what they can do with the access

Delete access for all apps you no longer use or need

Share with Care. Be aware that when you post a picture or message, you may be inadvertantly sharing personal details and sensitive data with strangers.
Block “supercookies” trails – Supercookies are bits of data that can be stored on your computer like advertising networks. They are a “ — a much more invasive type of behavior-tracking program than traditional cookies that is also harder to circumvent.” supercookies are harder to detect and get rid of because they hide in various places and can’t be automatically deleted. A supercookie owner can capture a ton of your unique personal data like your identity, behavior, preferences, how long you’re online, when you’re most active and more. Supercookies can communicate across different websites, stitching together your personal data into a highly detailed profile.
Set up Private email Identity
Update your softwares – many software companies release updates which patch bugs and vulnerabilities in the app when they are discovered
Use App lockers – App lockers provide an extra level of security for apps and work
Encrypt your data – There are free apps available to encrypt or scramble data so that it can not be read without a key.
“Create long and unique passwords for all counts and use multi-factor authentication whenever possible”. This additional layer of security makes it harder for hackers to get into your accounts. (Data Privacy Senate).

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.

Should Social Media Be Used as a Sentencing Tool?

Mass Incarceration in the US – A Costly Issue

The United States has a costly over-incarceration issue. As of May 2021, the United States has the highest rate of incarceration in the world with 639 prisoners per 100,000 of the national population. New York State alone has more prisoners than the entire country of Canada. In 2016, the US Government spent over $88 billion on prisons, jails, parole, and probation systems. Not to mention the social cost of incarcerating nearly 1% of our entire adult population. Alternative sentences can provide a substitute for costly incarceration.

What Are Alternative Sentences?

Typically, punishment for a crime is imprisonment. Alternative sentences are sentences other than imprisonment, such as:

community service,
drug rehabilitation programs,
probation, and
mental health programs.

While many generalizations about alternative sentences cannot be made, as the results vary by program and location, alternative sentences can and do keep people out of the overcrowded, problematic prison system in the US.

Could Social Media Play a Part in Alternative Sentencing?

In June 2021, a tourist in Hawaii posted a video of herself on TikTok touching a monk seal. The video went viral, and copycats hopped on the trend of poking wildlife for views. Hawaiian people, outraged, called for enforcement action and local media outlets echoed their call. Eventually, the Hawaii Governor released a statement that people who messed with local wildlife would be “prosecuted to the fullest extent of the law.”

There are essentially three avenues of prosecution for interfering with wildlife: in federal court, state court, or civil court through the National Oceanic and Atmospheric Administration. Disturbing wildlife is a misdemeanor under federal law, but it’s a felony under state law, with a maximum penalty of five years in prison and a $10,000 fine. However, enforcement is unlikely, even after the Governor’s proclamation. Additionally, when enforcement does take place, it often happens out of the public eye. This imbalance of highly publicized crime and underpublicized enforcement led to a suggestion by Kauai Prosecuting Attorney Justin Kollar.

Kollar suggested sentencing criminals like the Hawaiian tourist to community service that would be posted on social media. Kollar looked to Hawaii’s environmental court as a potential model. Established in 2014 for the purpose of adjudicating environmental and natural resource violations, the environmental court has more sentencing tools at its disposal. For example, the court can sentence people to work with groups that do habitat restoration.

According to Kollar, requiring criminal tourists to take time out from their vacation to work with an environmental group — and possibly publicizing the consequence on social media — would not only be a more productive and just penalty, it would also create a positive and contrite image to spread across the internet. The violators would have an opportunity to become more educated and understand the harm they caused. Kollar wants people to learn from their mistakes, address the harm they caused, and take responsibility for their actions.

In an age when many crimes are visible on social media, what would be the pros and cons of using social media as a sentencing tool?

Some Pros and Cons of Using Social Media as a Sentencing Tool

In law school, we’re taught the theories of punishment, but not the consequences of punishment. While it’s important to think about the motivation for punishment, it’s equally, if not more, important to think about what happens because of punishment. In the case of using social media as a sentencing tool, there would likely be pros and cons.

One pro of using social media to publicize enforcement would be a rebalancing of the scale of crime v. enforcement publicity. This rebalance could help prevent vigilante justice from occurring when there is too big of a perceived gap between crime and enforcement. For example, when the TikToker posted her crime, she began to receive death threats. Many Hawaiians are fed up with their environment being exploited for financial profits. The non-enforcement and bold display of a wildlife crime led them to want to take matters into their own hands. In a situation like this, society does not benefit, the criminal does not learn from or take responsibility for their actions, and the victim is not helped.

An alternative sentence of wildlife-related community service publicized on social media could have benefited society because there is justice being done in a publicly known way that does not contribute to costly mass incarceration; helped the criminal learn from and take responsibility for their actions without being incarcerated; and, helped the victim, the environment, via the actual work done.

Additionally, this type of sentence falls into the category of restorative justice. Restorative Justice (RJ) is “a system of criminal justice which focuses on the rehabilitation of offenders through reconciliation with victims and the community at large.” The social media addition to an alternative sentence could provide the reconciliation with the “community at large” piece of the RJ puzzle. This would be a large pro, as RJ has been shown to lower recidivism rates and help victims.

While these pros are appealing, it is important to keep in mind that social media is a powerful tool that can facilitate far-reaching and lasting stigmatization of people. Before the age of social media and Google, a person’s criminal record could only be found in state-sponsored documents or small write-ups in a newspaper. As social scientists Sarah Lageson and Shadd Maruna put it, “although these records were “public,” they often remained in practical obscurity due to access limitations.” Today, any discretion, or presumed and unproven discretion in the case of online mug shots and police use of social media, can be readily found with a quick search. This can increase recidivism rates and make it harder for people with a criminal record to build relationships, find housing, and gain employment. The consequences of a readily available criminal record result in punishments not fitting to many crimes, as stigmatization is a part of punishment. Using social media as a sentencing tool could make the stigmatization situation worse, a huge con.

Perhaps there is a middle ground. To protect people from long-term stigmatization, faces and other identifying features could be blurred prior to publication. Similarly, identifying information, like names, could be excluded from the posts. By keeping the perpetrators anonymous, the scale of crime v. enforcement publicity could be rebalanced, the community aspect of RJ could be accomplished, and harmful stigmatization could be avoided. To completely avoid the possibility of stigmatization via social media postings, the program coordinators could post adjacent content. For example, they could post a before and after of the service project, completely leaving out the violators, while still publicizing enforcement.

Any iteration of the idea to use social media as a sentencing tool should be studied intensely regarding its consequences related to society, the criminal, and the victim, as it is a new idea.

Do you think social media should be used as a sentencing tool?

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.”