Cyberbullying – Social Media Legality

Is Social Media Really Worth It?

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

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

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

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

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

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

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

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

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

“Is Cyberbullying the Newest Form of Police Brutality?”

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

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

Transparency

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

New Jersey Open Public Records

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

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

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

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

New York’s Open Public Records

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

California’s Open Public Records

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

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

Safety and Public Information

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

Satisfied Warrant

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

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

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

Scope of Influence

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

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

Time

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

Live-Streaming Drunk Driving Leads to an Arrest

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

Family Advocating

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

Instagram Selfies with Drugs, Money and Stolen Guns

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

Bank Robbery Selfies

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

Food Post Becomes the Smoking Gun

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

Wanted Man Turns Himself in After Facebook Challenge With Donuts

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

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

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

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

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

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?

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:

Do you spend a lot of time thinking about social media or planning to use social media?
Do you feel urges to use social media more and more?
Do you use social media to forget about personal problems?
Do you often try to reduce the use of social media without success?
Do you become restless or troubled if unable to use social media?
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.

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.

“There Oughta be a Law”

In February 2015, two young men dared Parker Drake to jump into a frigid ocean for virtual entertainment. Parker, who doctors diagnosed as having autism spectrum disorder, first “met” the men through twitter. After several exchanges the young men took Parker to the ocean, “for laughs” dared him to jump in and then videotaped Parker’s struggle to return to shore. The men published the video on Facebook, you could hear them laugh as Parker battled the waves.

Upon discovering the tape, Manasquan, NJ Municipal Court officials charged the men with “endangering the welfare of an incompetent person.” The problem, however, is that because 19 year old Parker voluntarily jumped into the ocean, the men had not, in fact, committed a crime.

The case is another example of a moral wrong failing to translate into a legal wrong. Sadly, laws do not exist to punish those who use social media for bullying; just consider the events that prompted Tyler Clementi to jump off the George Washington Bridge. With this unfortunate event, Parker’s mother joins the rank of parents who fail to see justice in the courts for reprehensible harms committed against their children.

The response to the Parker Drake event, much like the response to many social media wrongs for which the criminal law offers no retribution, is both outrage and frustration. Parker’s mother is seeking justice in the civil courts. The politicians have weighed in too. Just last week several New Jersey lawmakers announced their intention to draft a law aimed atpunishing individuals who victimized disabled persons.

The law is not well suited for punishment of harms like the one that happened to Parker. Our Constitution often stands as a roadblock between justice for social media wrongs and the right to voice opinions and ideas. First Amendment concerns prevent punishing many types of speech, particularly outside of the classroom. And then there are issues of “void for vagueness.” A law that punishes those who exploit the developmentally disabled leaves open to interpretation what constitutes “exploitation.” (and I suspect defendants charged in a crime such as this might try to escape punishment by challenging whether his or her “victim” was developmentally disabled.”)

I am interested in seeing the legislation New Jersey law makers propose. My hope is that they can walk the fine line between justice and free speech. The lawyer in me, however, suspects that the bill will never make it to the Governor’s desk; as we have seen too many times before, regulating social media bullying in the courts is a nearly impossible task.

Should we add Doxx to the Lexicon?

Emily Bazelon’s most recent NY Times Magazine article, The Online Avengers, details the activities of a group of individuals who “scour the internet for personal data” of bullies and then “publicly link that information to the perpetrator’s transgressions.” This practice of trolling the internet for transgressions is known as “doxxing.” The article focuses in particular attention to a man named Ash, who, together with a woman named Katherine, created an online group called OpAntiBullying. Although the group never met in person, and never met the victims for whom they championed, they worked together, for a while at least, to publicly shame adolescent bullies. One focus of the article is the infighting that eventually occurred among the small group of “do-gooders,” highlighting the fragile bond between zealots brought together by a common cause, and the way in which their united enthusiasm lead to an equally fevered undoing.

What struck me most about the article, was the use of the word doxx, which I hadn’t heard before. A cursory google search suggests the word has yet to gain much traction. Urbandictionary.com defines doxx as exposing someone’s true identity. A practice, the site suggests “is one of the scummiest things someone can do on the internet.” In contrast, Emily Bazelon profiles doxxing in a more positive manner. In her article Bazelon credits doxxing with bringing down the defendants in the Steubenville sexual assault case and with bringing awareness to a similar assault in Canada.

Doxxers are hackers. In most instances, a doxx can only occur if one breaks into someone’s twitter account, or instagram feed, finding incriminating comments or pictures. Consequently, most doxxers are anonymous, as was the case in the article.

But the practice and the goals of doxxers create a dichotomoy with which I am not sure I am comfortable. While a doxxers goal is more laudable, the conduct necessary to reach his or her goal is often illegal. Its a little like Robin Hood, committing a crime to achieve a better good. I am not sure how I come out on this, though I suspect I fall on the side of legality (would one expect otherwise from a lawyer?)

Regardless, I suspect doxx will become a word uttered with increasing frequency in the coming year. Thoughts, examples or opinions on doxx are greatly welcomed.

Another Cyberbullying Case Resulting in Suicide; WHO IS TO BLAME?

by Pat VanHall

In the fallout of the recent suicide of 12-year-old Rebecca Sedwick, from Lakeland Florida, the finger pointing has begun. Police, after making two arrests of a 14-year-old and a 12-year-old, believe the relentless bullies are to blame. The parents of one of the two alleged bullies (who both face felony charges) are deflecting blame to Facebook claiming a hack of their daughter’s account. The father of the younger of the two arrested bullies has been quoted in saying that “he wishes he could have done more” but his lack of social media savvy prevented him from knowing about the bullying. The school district, which “did all it could” to stop the bullying in school, claims it didn’t know about the cyberbullying. All of this, in light of bullying legislation already enacted in Florida which was amended as of July 1, 2013 to include cyberbullying. So what else can we do?

Across the country states are taking direct aim at cyberbullying and new bills (Wisconsin passed such a bill on October 10^th) look to add cyberbullying, texting, and social media language to fully encompass this issue. The main question still remains; will more criminalization of cyberbullying help? Will tweens and teens be deterred by threat of legal consequences? It clearly didn’t help in Florida. I think the bigger problem that schools face is how they will go about monitoring a student’s account once a report of bullying has been made. In my opinion there still remains an enormous divide among generations when it comes to social media know-how. This is my own generalization, but I believe the percentage of students in middle school that are not proficient with at least one type social media (Facebook, Twitter, MySpace, and the like) probably isn’t that far off from the percentage of middle school teachers that are proficient with one or more of the platforms.
The parents of the bullies in this case are a prime example of this dilemma. One parent wishes he knew more about Facebook so he could have done something to prevent it. The other set of parents is claiming a Facebook hack of their daughter’s account insisting that they check her account every day. Both statements seem highly unlikely based on some of the posts the media has shown taken from their daughters account (pictured in the gallery here). So how do we expect teachers and school administrators to be able to monitor the students’ accounts if the parents are unsuccessful in doing so? Facebook used to have age limits (which they clearly cannot revert to) and they do have parental controls, but do parents even know about them? Should there be an age limit that requires parental consent and monitoring for a pre-teen to set up an account? Would that help? I’m not sure what the answer is, but tragic cyberbullying examples like Rebecca Sedwick are indications that things are not getting any better.

Tag: Cyberbullying

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