Censorship – Social Media Legality

Shadow Banning Does(n’t) Exist

Shadow Banning Doesn’t Exist

#mushroom

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

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

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

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

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

#Shadowbanning

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

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

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

#Shadowbanningisacoverup?

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

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

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

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

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

The short answer is: It’s inappropriate.

But users want to know: what makes it inappropriate?

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

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

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

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

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

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

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

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

Free speech, should it be so free?

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

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

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

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

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

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

Private or not private, that is the question.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tag: Censorship

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