Blurred Boundaries: The multidimensional convergence of Social Media’s Impact on Privacy, Speech and Employment Law

Are employees and employers operating in a universe without realizing the density of the fog that obscures the boundaries of the employee-employer relationship in cyberspace because the Supreme Court prefers to decide cases on narrower grounds?

Due to narrow rulings, examining decisions beyond employment law may yield analysis that can serve as temporary guideposts for employers and employees while monitoring the developing landscape.

Over a decade ago, the unanimous Supreme Court did just that. In City of Ontario, Cal. v. Quon, the Court avoided addressing the employee privacy issue by deciding that employer acted reasonably, thereby justified their non-investigatory search of an employer-issued pager in 2002. The employee brought an action for deprivation of civil rights under 42 U.S.C. § 1983. The § 1983 claim requires a governmental actor to deprive a constitutional right while acting under the color of law. The government, as the employer, issued a policy covering emails and Internet usage, but it was not specific to text messages. However, a supervisor verbally put all employees on notice that text would be considered emails, despite the difference between the technology used during transmission. Some of the non-work-related messages sent during working hours were sexual. Despite both the District Court and the Court of Appeals for the Ninth Circuit decided that the employee had an expectation of privacy in the text messages, the Supreme Court avoided addressing that issue while finding the search constitutional.

Since most of today’s labor force has never carried a pager, the more relevant aspect of this decision is the Court forecasting the “rapid changes in the dynamics of communication and information transmission” which may be evident “in the technology itself but in what society accepts as proper behavior.” How right they were, I could not have predicted the explosion of technology. Because emerging technology’s role in society was unclear, detailing the constitutionality of other actions could have been risky. Last month this preference was reinforced. However, definitive holdings could have become the foundation upon which employers and employees could make educated decisions while technology’s role in society becomes more evident. Like an airplane flying out of cloud cover, suddenly the landscape becomes visible.

The Court had the foresight that cell phone communications would become essential in self-expression that it would require employers to communicate clear policies. However, the challenge lies in setting clear policies when privacy and protected speech boundaries are not clearly defined but obscured in the fog created by balancing tests established in other speech cases.

One such landmark ruling is the 1969 “school arm-band case” during the Vietnam War. In Tinker v. Des Moines Independent Community School Dist., the Court separately analyzed the time, place, and type of be¬havior/communication. Tinker’s substantial disruption analysis requires that the prohibition on speech needs to be due to something other than just the desire to avoid discomfort and unpleasantness.

The Court in Young v. American Mini Theatres, Inc. established that speech cannot be suppressed just because society finds the content offensive. Likewise, in Skinner v. Railway Labor Executives’ Ass’n, the Court also found that the amendments to the constitution also applied to the government when performing non-criminal functions.
Likewise, the Court ruled in Treasury Employees v. Von Raab that not only did the Fourth Amendment apply to the government as an employer but that the issue of privacy applies to private-sector employees as well.

More recently, Justice Stevens addressed a public employee’s expectation of privacy in his concurring opinion in Quon. He highlighted the significant issue: there “lacks tidy distinctions between workplace and private activities.” Today’s social media and society’s view have further blurred the boundaries to the point of non-existence.

Just last month, the Supreme Court had an opportunity to establish bright lines that would have further clarified the legal landscape of social media. The rule could have applied to the employer-employee relationship. In Mahanoy Area School District v. B.L., the Court held that the school violated the student’s free speech rights because the school’s special interests did not overcome the student’s right to freedom of expression. The decision was based primarily on the time of the speech, the location from where B.L. made it, the content, and the target audience. The school’s interests also focused on preventing disruption in the facility.

Justice Alito, in his concurrence, explains that it is not prudent to establish a general First Amendment rule for off-premise student speech but rather to examine the analytical framework. While this approach serves the parties of this case and is of some value to other students, it is so narrowly tailored that it may have little precedence in other speech disputes.

Rather than a bright-line rule, the Court is building a boundary fence around the First Amendment one panel at a time. While the legal community functions within this ever-changing reality, society pays the burden until clarity is achieved.

  The Court’s lesson from Mahanoy might be that regulations on student speech raises serious First Amendment concerns; school offi¬cials should proceed cautiously before venturing into this territory. That same caution may be prudent for both the private sector and public sector employers. Social media’s impact is not limited to situations where a person’s post impacts their employment. One example, among many, is Amy Cooper, the Central Park 911 caller, who was immediately fired for racism and later charged with filing a false police report. She has since filed a civil suit against her employer.

Unfortunately, the Court’s preference to dispose of cases narrowly while avoiding addressing all the possible issues creates tension between different interpretations until the Court adds the last panel completing the boundary fence around the First Amendment. Until then, we will have to consider how the courts will decide issues within the employment arena, such as the termination of Amy Cooper or any law enforcement officer firings due to social media posts.

Will the Courts find that employees, like students, do not “shed their constitutional rights to freedom of speech or expression” at the workplace gate in the era of social media?

Is Cyberbullying the Newest Form of Police Brutality?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How One Teenager’s Snapchat Shaped Students Off-Campus Free Speech Rights

Did you ever not make your high school sports team or get a bad grade on an exam? What did you do to blow off steam? Did you talk to your friends or parents about it or write in your journal about it? When I was in High school- some of my classmates would use Twitter or Snapchat to express themselves. However, the rates for the use of smartphones and social media were much lower than they are today. For instance, today high school students use their smartphones and social media at an incredibly high rate compared to when I was in high school almost ten years ago. In fact, according to Pew Research Center, 95% of teenagers have access to smartphones and 69% of teenagers use Snapchat. This is exactly why the recent Supreme Court decision on Mahanoy Area School District v. B.L. is more important than ever, as it pertains to student’s free speech rights and how much power schools have in controlling their student’s off-campus speech.  Further, this decision is even more necessary because the last time the Supreme Court ruled on student’s free speech was over fifty years ago in Tinker v. Des Moines, way before anyone had smartphones or social media. Therefore, the latest decision by the Supreme Court will shape the future of the power of school districts and the first Amendment rights for students for maybe the next fifty years.

 

The main issue in Mahanoy Area School District v. B.L. is whether public schools can discipline students over something they said off-campus. The facts in this case, occurred when Levy, was a sophomore at Mahoney Area School District. Levy didn’t make the varsity cheerleading team; naturally, she was upset and frustrated about the situation. So, that weekend, Levy was at the convenience store in town with a friend. Levy and the friend took a Snap Chat with their middle finger raised with the caption “F- School, F-Softball, F-Cheerleading, F-Everything” and sent it to her Snap Chat friends. Then, the picture was screenshotted and shown to the cheerleading coach. Which lead to Levy being suspended from the cheerleading team for one year.

 

Furthermore, Levy and her parents did not agree with the suspension and the school’s involvement in Levy’s off-campus speech. Therefore, Levy and her parents filed a lawsuit claiming their suspension violated Levy’s First Amendment free speech rights. Levy sued the school under 42 U.S.C. § 1983 alleging (1) that her suspension from the team violated the First Amendment; (2) that the school and team rules were overbroad and viewpoint discriminatory; and (3) that those rules were unconstitutionally vague. The district court granted summary judgment in favor of Levy, stating that the school had violated her First Amendment rights. The U.S. Court of Appeals for the Third Circuit affirmed the district court decision. The Mahoney School District petitioned for a writ of certiorari.

 

In an 8-1 decision the Supreme Court ruled in favor of Levy. The Supreme Court held that the Mahoney Area School District violated Levy’s First Amendment rights by punishing her for using vulgar language that criticized the school on social media. The Supreme Court noted numerous reasons why they ruled in favor of Levy. Additionally, The Supreme Court noted the importance of schools monitoring and punishing some off-campus speech. Such as, speech and behavior that is “serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students.” This is more necessary than ever before due to the increase in online bullying and harassment; that can impact the day-to-day activities of the school and the development of minors.

 

While it’s important in some circumstances for schools to monitor and address off-campus speech. The Supreme Court noted three reasons that would limit schools from interfering with student’s off-campus speech. First, a school, concerning off-campus speech, will rarely stand in loco parentis. Therefore, schools do not have more authority than parents. Especially not for off-campus speech. The parent is the authority figure; and will decide to discipline or not in most activities in their child’s life, especially what happens outside of school. This is important because parents have the authority to raise and discipline their children the way they believe, not based on the school district’s beliefs.

 

Second, “from the student perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day.” There would be no boundaries or limitations to what the school district would be allowed to discipline their students on. For instance, what if a group of students on a Saturday night decided to make a Tik Tok, and during the Tik Tok, the students curse and use vulgar language, would they be in trouble? If there were no limits to what the school could punish for off-campus speech, then those students could be in trouble for their Tik Tok video. Therefore, it’s important that the Supreme Court made this distinction to protect the student Frist Amendment rights.

 

Finally, the third reason is the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off-campus.” For instance, the Supreme Court stated that if schools did not protect their students’ unpopular opinions, this would limit and ruin the student’s ability to express themselves and schools are a place for students to learn and create their own opinion- even if that opinion differs from the school’s. To conclude, this would severely impact the student’s ability to think for themselves and create their own opinion, and respect other’s opinions that differ from their own.

 

Overall, I agree with the Supreme Court’s decision in this case. I believe it’s essential to separate in-school speech and off-campus speech. However, the only time off-campus speech should be monitored and addressed by the school is if there is bullying, harassing, or threatening language against the school, groups, or individuals at the school. With that being said, the Supreme Court noted three very important reasons as to why the public schools cannot have full control of students’ off-campus speech. All three of these reasons are fair and justifiable to protect the parents and students from being overly controlled by the school. To conclude, there is still a lot of questions and uncertainty, especially since technology is rapidly advancing and new social media platforms emerging frequently. I am curious if the Supreme Court will rule on a similar within the next fifty years and how this will impact schools in the next few years.

 

Do you agree with the Supreme Court decision and how do you see this ruling impacting public schools over the next few years?

Is social media promoting or curbing Asian hate?

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

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

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

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

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

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

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

 

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?

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

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

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

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

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

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

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

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

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

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

 

What would you do to help curtail this social dilemma?

Has Social Media Become the Most Addictive Drug We Have Ever Seen?

Before we get started, I want you to take a few minutes and answer the following questions to yourself:

  1. Do you spend a lot of time thinking about social media or planning to use social media?
  2. Do you feel urges to use social media more and more?
  3. Do you use social media to forget about personal problems?
  4. Do you often try to reduce the use of social media without success?
  5. Do you become restless or troubled if unable to use social media?
  6. Do you use social media so much that it has had a negative impact on your job or studies?

How did you answer these questions?  If you answered yes to more than three of these questions then according to the Addiction Center you may have or be developing a Social Media Addiction.  Research has shown that there is an undeniable link between social media use, negative mental health, and low self-esteem.  Negative emotional reactions are not only produced due to the social pressure of sharing things with others but also the comparison of material things and lifestyles that these sites promote.
On Instagram and Facebook, users see curated content – advertisements and posts that are specifically designed to appeal to you based on your interests.  Individuals today unlike any other time in history are seeing how other people live, and how their lifestyles differ significantly from their own.  This sense of self-worth is what is being used to curate information, children at a young age are being taught that if you are not a millionaire then you are not successful, and they are creating barometers of success based on invisible benchmarks, this is leading to an increase in suicide and depression among young adults.

Social Media has become a stimulant whose effects mimic that of someone addicted to gambling, and recreational drugs.  It has been shown that retweets, likes, and shares from these sites affect the dopamine part of the brain that becomes associated with reward. “[I]t’s estimated that people talk about themselves around 30 to 40% of the time; however, social media is all about showing off one’s life and accomplishments, so people talk about themselves a staggering 80% of the time. When a person posts a picture and gets positive social feedback, it stimulates the brain to release dopamine, which again rewards that behavior and perpetuates the social media habit.”  “Chasing the high”, is a common theme among individuals with addictive personalities, and when you see people on Social Media posting every aspect of their lives, from the meal they ate to their weekend getaway, and everything in between, that is what your chasing, but the high is the satisfaction of other people liking your post.  We have all been there you post a picture or a moment of great importance in your life, and the likes and reactions start pouring in, the reaction you garner from that love, differs significantly from the reaction you get when there is no reaction.  A recent Harvard study showed that “the act of disclosing information about oneself activates the same part of the brain that is associated with the sensation of pleasure, the same pleasure that we get from eating food, getting money or having even had sex.” Our brains have become to associate self-disclosure with being a rewarding experience.  Ask yourself when was the last time you posted something about a family or friend who died, why was this moment of sadness worth sharing with the world?  Researchers in this Harvard Study found that “when people got to share their thoughts with a friend or family member, there was a larger amount of activity in the reward region of their brain, and less of a reward sensation when they were told their thoughts would be kept private.”

“The social nature of our brains is biologically based,” said lead researcher Matthew Lieberman, Ph.D., a UCLA professor of psychology and psychiatry and biobehavioral sciences. This in itself helps you to understand where Social Media has gone to, it has evolved into a system that takes advantage of our biological makeup, “although Facebook might not have been designed with the dorsomedial prefrontal cortex in mind, the social network is very much in sync with how our brains are wired.” There is a reason when your mind is idling the first thing it wants to do is to check Social Media, Liberman one of the founders of the study of social cognitive neuroscience explains that “When I want to take a break from work, the brain network that comes on is the same network we use when we’re looking through our Facebook timeline and seeing what our friends are up to. . . That’s what our brain wants to do, especially when we take a break from work that requires other brain networks.”

This is a very real issue, that has very real consequences.  The suicide rate for children and teens is rising.  According to a September 2020 report by the U.S. Department of Health and Human Services, the suicide rate for pediatric patients rose 57.4% from 2007 to 2018. It is the second-largest cause of death in children, falling short only of accidents.  Teens in the U.S. who spend more than 3 hours a day on social media may be at a heightened risk for mental health issues, according to a 2019 study in JAMA Psychiatry. The study, which was adjusted for previous mental health diagnoses, concludes that while adolescents using social media more intensively have an increased risk of internalizing problems or reporting mental health concerns, more research is needed on “whether setting limits on daily social media use, increasing media literacy, and redesigning social media platforms are effective means of reducing the burden of mental health problems in this population.” Social Media has become a coping mechanism for some to deal with their stress, loneliness, or depression.  We have all come into contact with someone who posts their entire life on social media, and more often than not we might brush it off, even make a crude joke, but in fact, this is someone who is hurting and looking for help in a place that does not offer any solitude.

I write about this to emphasize a very real, and dangerous issue that is growing worse every single day.  For far too long Social Media have hidden behind a shield of immunity.

Section 230, a provision of the 1996 Communications Decency Act that shields social media companies from liability for content posted by their users and allows them to remove lawful but objectionable posts.  Section 230 states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230)

In 1996 when this Law was introduced and passed, the internet was still in its infancy, and no one at that time could have ever envisioned how big it would become.  At this point, Social Media Corporations operate in an almost Omnipotent capacity.  Creating their governing boards, and moderators to filter out negative information.  However, while the focus is often on the information being put out by the users what gets ignored is how that same information gets directed to the consumer.  You see Facebook, Snap Chat, Twitter, even YouTube, rely on the consumer commonly known as “influencers” to direct posts, and information to the consumer also known as the “User”, to direct advertisement and product placement.  To accomplish their goals which at the end of the day is the same as anyone Corporation to create a profit, information is directed at a person that will keep their attention.  At this point, there are little to no regulations, on how information is directed at an individual.  For instance, the FCC has rules in place that “limits the number of time broadcasters, cable operators, and satellite providers can devote to advertisements during children’s programs.” however, there are no such rules when dealing with children, there is only one such case in which the FTC has levied any fines for directed content at Children. Yet this suit was based more on  the notion that Google through their subsidiary YouTube “illegally collected personal information from children without their parents’ consent.”  When dealing with an advertisement for children Google itself sets the parameters.

Social Media has grown too large for itself and has far outgrown its place as a private entity that cannot be regulated.  The FCC was created in 1934 to replace the outdated Federal Radio Commission an outdated entity.  Therefore, just as it was recognized in 1934 that technology calls for change, today we need to call on Congress to regulate Social Media, it is not too farfetched to say that our Children and our Children’s futures depend on this.

In my next blog, I will post how regulation on Social Media could look and explain in more detail how Social Media has grown too big for itself.

 

 

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.

Snapchat’s “Speed Filter” Fuels Fatalities

Upon its launch in 2011, the mobile app known as “Snapchat” quickly gained downloads, now totaling 265 million daily active Snapchat users worldwide. Snapchat revolutionized the social media world with the introduction of filters – debuting “smart filters” to capture time, speed, and temperature in 2013, followed by “Geofilters” in August 2014 and “Discover” and “Lenses” in January 2015.

Snapchat in 2013

While filters can provide fun visual effects and cool color edits, the “speed filter” drew criticism early on for encouraging yet another distraction on the road for young drivers. Newly licensed teens could hardly wait to get in the driver’s seat and snap a selfie overlayed with vehicle speed in real time. The widespread belief is that users would earn a virtual trophy through the apps reward system for snapping speeds over 100 miles per hour (mph) – further fueling the recklessness.

img: The Odyssey

Concerns were raised early on regarding the dangers of the speed filter, and Snap responded by attaching a “Do Not Snap and Drive” disclaimer in 2016. Despite the company’s minimal efforts to limit the use of the feature while driving, life-threatening and fatal car accidents linked to the filter prevailed.

 

Studies indicate that Snapchat leads the list of apps most distracting for young drivers, and more than a third of teens surveyed admitted to Snapping while driving. The National Highway Transportation Safety Administration reports nearly 26,004 deaths due to distracted driving accidents between 2012 and 2019. By 2018, distraction-related fatalities increased by 10% – killing 2,841 people and injuring 400,000 more. Drivers under the age of 19 account for the largest proportion of distracted driving fatalities.

One of the earliest accidents involving the filter occurred in September 2015, with 18-year-old Christal McGee behind the wheel of her father’s Mercedes. McGee admitted to grabbing her phone and using the filter to see how fast she could go. The Atlanta-teen doubled the speed limit at roughly 113 mph before colliding with an Uber driver who was just beginning his night shift. As a result of the accident, the Uber driver was hospitalized for months and suffered a traumatic brain injury. He sued both McGee and Snapchat for negligence damages, alleging equal responsibility by Snapchat for the crash because they failed to delete the miles per hour filter after it was cited in similar accidents prior to the September 2015 crash.

Likewise, an incident occurred in late 2016 when 22-year-old Pablo Cortes posted a Snapchat video with the speed filter, accelerating from 82 mph to 115.6 mph. Just nine minutes later, Cortes lost control and struck a minivan – killing both himself and his 19-year-old passenger, Jolie Bartolome, as well as a mother and two of her children.

In the past, Snapchat has not faced liability for incidents arising out of the speed filter due to the Communications Decency Act (CDA). Section 230 of the CDA states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230). Congress established the CDA in 1996, with the intent to better regulate pornographic material on the Internet. With the growth of social media, it serves as a powerful tool that shields tech companies and social media platforms from potential liability for content posted by their users.

However, just last month the Court of Appeals for the Ninth Circuit unanimously held that the CDA does not shield the creators of Snapchat from claims. The lawsuit in Lemmon v. Snap arises out of an incident that occurred May of 2017, fatally wounding three young boys. The 17-year-old driver and his two buddies used the speed filter to record a high of 123 mph, just before hitting a tree at 113 mph. The parents of the deceased teens filed a lawsuit in 2019, alleging the “negligent design” of the Snap Inc. app contributed to the crash by encouraging speeding. The trial judge erroneously dismissed the case in 2020, citing the immunity social media companies enjoy under the CDA.

In departing from the district court’s decision, the Ninth Circuit applied the three-prong test set forth in Barnes v. Yahoo!, Inc. (2009) to assess whether Section 230 would apply to immunize Snap from the claims. As such, CDA immunity will shield Snap from liability only if  “(1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.” (quoting Barnes). In thoughtfully analyzing each of the three prongs, the Court reversed the district court’s dismissal of the lawsuit and remanded it for further proceedings.

This new recognition rests on the fact that the suit is not about what someone posted to Snapchat, but rather negligence in the design of the app overall. The decision is a huge turning point in Internet law and regulation because it establishes that an internet company can be held liable for products with a defective design. Although the language of Section 230 grants broad discretion, Lemmon is a clear demonstration that Internet immunity has its limits and is not guaranteed. While the ruling is among the minority that have rejected CDA immunity to design claims against internet platforms, this radical departure from earlier decisions opens the door to future legal challenges to CDA immunity by alleging injury based on how the website’s design affected the user, rather than how the user’s content affected a third party.

Skip to toolbar