Category: Social Media, YouTube, Money, Profits, Child Labor Laws

Trapped in Virtual Reality!

Millions of people went crazy for Pokemon GO in 2016, venturing into private and public locations to catch Pokemon characters that were only visible to them. The game Pokémon GO was the first to introduce the public to the concept of augmented reality (AR).

AR users can see the real world as it is, but with visible digital images overlayed such that the images appear to be part of the real environment.

There’s also virtual reality, which goes beyond augmented reality (VR). Users can enter a virtual environment and move around and interact with it as if it were the real world by wearing a headset.

“Around 25 million people in the United States consider themselves to be active video gamers. The sector is worth $30 billion in the United States and $90 billion globally. It has its own popular television network, Twitch.tv, and in 2015, the finals of a League of Legends tournament drew more viewers than the NBA basketball finals. In the last year, over $1 billion in income was produced by Pokémon Go alone.”

AR and VR, on the other hand, raise legal issues for courts, businesses, and users. People will use AR and VR to kill and die, and some have already done so. They will harm themselves as well as others. Players have already fallen down a cliff or walked into oncoming traffic while playing Pokémon GO. Some will take advantage of the technology to threaten or scam others. To determine who is to blame, courts will need to grasp the technology and how it varies from the world before it.

CRIMES. In the real world, people sexually harass strangers and expose themselves indecently; there’s no reason why they wouldn’t do it in virtual reality. They are undoubtedly more likely to do so if they believe it will be difficult for law authorities to apprehend them. That ambition, though, may be difficult to fulfill. Extradition’s additional hurdles are likely to outweigh the greater ease of proving. As a result, traditional police forces may effectively ignore numerous VR street crimes. Suspension or exclusion from the virtual reality environment will most likely be the consequences. Participants who have been kicked off can simply re-enter by generating a new user ID.

The exhibitionist would almost probably be charged with indecent exposure or public lewdness if this happened in real life. Is it possible to apply the same law to virtual reality? Would you expect police forces to welcome the prospect of extraditing a person from another state or county simply because their internet avatar is nude? Because the exchanges may occur in multiple physical jurisdictions, it will be more difficult to regulate them effectively. As a result, police arrests and prosecutions will become more expensive, and law enforcement will be less willing to intervene. This is especially true in circumstances where there appears to be no “real” harm. As a result, police will be less likely to take this issue seriously, leaving VR users to fend for themselves.

We may see crimes and other issues occur in VR without the legal system doing anything about it since enforcement will be too tough for the less serious crimes that are likely to be witnessed in VR and AR. To the layperson, virtual reality is merely a game. Courts and police departments may determine that the wrongdoing took place within the game or server and is a personal matter. The VR data will be owned by commercial corporations, who will impose terms of use that bind users and disclaim liability for harm. As a result, police will be even more hesitant to act. The capacity of VR and AR operators to contractually waive liability, together with 47 U.S.C. 230, will certainly deter lawsuits against them.

Virtual reality and augmented reality will also test our understanding of what constitutes speech, which is protected by the First Amendment, and what constitutes non-speech activity that requires regulation. Is nudity on a drive-in screen, speech, the same as indecent exposure, conduct? In the physical world, the basic distinction between words and actions makes sense because we believe that the harm that words may inflict at a distance is generally smaller and easier to avoid than the harm that physical touch can cause.

Virtual reality and augmented reality, on the other hand, are designed to make conveyed pictures and sounds feel as real as possible. They challenge our perception of reality because they blur the cognitive boundaries between imagery and physical existence. People react as if they’ve been slapped in the face when they receive a virtual slap. The reaction is intuitive; it is not based on actual physical contact, but it seems real in a way that words or images outside of VR do not.

With respect to injury in the actual and virtual worlds, VR and AR will offer legal challenges that may necessitate adjusting existing doctrines or changing legal laws. Now, I’d like to pose a question to you. Virtual reality isn’t “real” in the traditional sense. We see data that has been stitched together to create artificial audio and video. It does, however, feel real in a way that is difficult to explain until you’ve experienced it. The same might be said about augmented reality if it can overlay vibrant and lifelike representations of people and objects over the real-world reality we experience. Do you think we should punish specific types of conduct if a VR/AR misconduct experience feels genuine and has significant emotional and physiological consequences? How would you differentiate between virtual reality and physical wrongdoing in terms of punishment?

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.

Is There Such a Thing as Off-Campus Anymore?

The Supreme Court will soon decide Mahanoy Area School District v. B.L., which raises the issue of whether the First Amendment prohibits public school officials from regulating off-campus student speech.   The issue arose from an incident involving Brandi Levy (B.L.), who, after learning she had not made her school’s Varsity Cheerleading squad, posted a picture of herself on Snapchat with the caption “Fuck school fuck softball fuck cheer fuck everything.”  She made the post on a weekend while hanging out at a local convenience store.
Levy thought the post would disappear after 24 hours, and only about 250 people saw the post during that time. But one person took a screenshot of the post and showed it to the school’s cheerleading coaches.  The coaches decided Levy’s snap violated team and school rules, which Levy had acknowledged before joining the team, and she was suspended from the school’s junior varsity cheerleading team for a year.Levy and her parents sued the school under 42 U.S.C. § 1983, arguing that the school’s suspension violated her First Amendment right to free speech and that the school disciplinary rules were overly broad. The district court granted summary judgment in B.L.’s favor, ruling that the school had violated her First Amendment rights. The U.S. Court of Appeals for the Third Circuit affirmed.   On January 8, 2021, the Supreme Court took certiorari.  It heard the case on April 28, 2021.The case presents the first post-Internet decision concerning regulated school speech.  The last time the Court heard a case concerning the regulation of speech on school property was in 1969 when in Tinker v. Des Moines Independent Community School District, the Court ruled that students’ First Amendment Rights do not end when they enter the school-house door.  In that case, the Court overruled a high school policy that prohibited students from wearing armbands on campus in protest of the Vietnam War.  According to the Tinker Court, schools cannot regulate student speech unless there is a material and substantial disruption to the school or student body.When framed in the context of Tinker, Mahanoy School District seems a pretty straightforward case for the court to decide.  The question under Tinker becomes whether Levy’s Snapchat posed a substantial disruption to the school.  And quite frankly, although disrespectful, the post was not disruptive.The issue, however, is much bigger!

The Internet has given rise to considerable cyberbullying among students.  Quite often the bullying occurs off-campus but is targeted at fellow students or administrators.  The Third Circuit has previously considered and found in favor of free speech in two instances where students bullied school principals.  Lisa S. Blatt, the attorney for the School Board, summed it up best during oral arguments; “When it comes to the Internet,” Blatt argued, “things like time and geography are meaningless.”   Levy’s case presents the Court with the thorny issue of where the school steps start in our current virtual world.

Levy posted her Snapchat in 2017.  At that time, schools were grappling with how to handle off-campus cyberbullying between classmates.  Many authorities agree that under the Tinker standard, school officials can intervene if the off-campus speech has created or could create a substantial disruption or interference at school.  Students have a right to feel secure on campus, and therefore a school has the power to discipline off-campus speech, even at the expense of a student’s right to free speech.  Courts have applied this holding in a way that was favorable to the school to instances involving Internet chatter.  In Rosario v. Clark County School Dist., a 2013 District Court upheld a school administration’s decision to discipline and punish a student for tweets a minor made while at a restaurant about a basketball coach who dismissed him from the team.  In Kowalski v. Berkeley Cnty. Schs.,  the Fourth Circuit ruled that a school did not violate a student’s free speech rights by suspending her for creating and posting to a webpage that ridiculed fellow students.

On the other hand, in instances where students could prove in court that their off-campus social media did not substantially disrupt the school the student has prevailed.  Consider, for example, Layshock v. Hermitage School Dist., in which the full Third Circuit ruled that the school infringed on a student’s First Amendment rights by suspending him for posting an online parody of the principle.  The Court ruled the same way on almost the same set of facts in J.S. v. Blue Mountain School Dist. But to date, among Federal Circuit Courts, only the Third Circuit has sided with the school in instances of off-campus online speech. And even those cases suggest that there are instances where a school can appropriately infringe on a student’s First Amendment Rights.  In response to J.S. and Layshock, Judge Kent Jordan of the Third Circuit stated: “The issue is whether the Supreme Court’s decision in Tinker, can be applied to off-campus speech. I believe it can, and no ruling coming out today is to the contrary.”

The Supreme Court could easily punt in this case; decide whether Levy’s Snapchat disrupted on-campus activities and leave it at that.  But in this instance, the Court should not miss the opportunity to discuss the more significant issue of what rules should apply given the very real issue of blurred school boundaries.  Especially since these boundaries have become even more blurred with the Pandemic.  Living rooms and bedrooms across the country have become virtual classrooms.  It seems impossible to suggest in today’s wired world that, as attorney Blatt suggests, there are any geographical boundaries to school. Prohibiting schools from regulating speech outside brick-and-mortar school buildings provides schools with the opportunity to prevent the severest of cyberbullying.   On the other hand, expanding a schools’ reach threatens the very foundation of our constitution.

The Supreme Court decided Tinker well before the Internet was integral to our homes. Mahanoy Area School Dist. v. B.L., offers the Court the opportunity to provide much-needed guidance to school administrators who walk a tight balance between respecting First Amendment Rights and protecting the right of their students to learn in a conducive educational environment.  Defining that guidance is the difficult part and with three new members of SCOTUS,  it is hard to decide which way they may rule.

How do you think the Court should rule and what would your ruling be if you were a Supreme Court Justice?

 

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