Social Media Has Gone Wild

Increasing technological advances and consumer demands have taken shopping to a new level. You can now buy clothes, food, and household items from the comfort of your couch, and in a few clicks: add to cart, pay, ship, and confirm. Not only are you limited to products sold in nearby stores, but shipping makes it possible to obtain items internationally. Even social media platforms have shopping features for users, such as Instagram Shopping, Facebook Marketplace, and WhatsApp. Despite its convenience, online shopping has also created an illegal marketplace for wildlife species and products.

Wildlife trafficking is the illegal trading or sale of wildlife species and their products. Elephant ivory, rhinoceros horns, turtle shells, pangolin scales, tiger furs, and shark fins are a few examples of highly sought after wildlife animal products. As social media platforms expand, so does wildlife trafficking.

Wildlife Trafficking Exists on Social Media?

Social media platforms make it easier for people to connect with others internationally. These platforms are great for staying in contact with distant aunts and uncles, but it also creates another method for criminals and traffickers to communicate. It provides a way to remain anonymous without having to meet in-person, which makes it harder for law enforcement to identify a user’s true identity. Even so, can social media platforms be held responsible for making it easier for criminals to commit wildlife trafficking crimes?

Thanks to Section 230 of the Communications Decency Act, the answer is most likely: no.

Section 230 provides broad immunity to websites for content a third-party user posts on the website. Even when a user posts illegal content on a website, the website cannot be held liable for such content. However, there are certain exceptions where websites have no immunity. It includes human and sex trafficking. Although these carve-outs are fairly new, it is clear that there is an interest in protecting people vulnerable to abuse.

So why don’t we apply the same logic to animals? Animals are also a vulnerable population. Many species are unmatched to guns, weapons, traps, and human encroachment on their natural habitats. Similar to children, animals may not have the ability to understand what trafficking is or even the physical strength to fight back. Social media platforms, like Facebook, attempt to combat the online wildlife trade, but its efforts continue to fall short.

How is Social Media Fighting Back?

In 2018, the World Wildlife Fund and 21 tech companies created the Coalition to End Wildlife Trafficking Online. The goal was to reduce illegal trade by 80% by 2020. While it is difficult to measure whether this goal is achievable, some social media platforms have created new policies to help meet this goal.

“We’re delighted to join the coalition to end wildlife trafficking online today. TikTok is a space for creative expression and content promoting wildlife trafficking is strictly prohibited. We look forward to partnering with the coalition and its members as we work together to share intelligence and best-practices to help protect endangered species.”

–Luc Adenot, Global Policy Lead, Illegal Activities & Regulated Goods, TikTok

In 2019, Facebook banned the sale of animals altogether on its platform. But this did not stop users. A 2020 report showed a variety of illegal wildlife was for sale on Facebook. This clearly shows the new policies were ineffective. Furthermore, the report stated:

“29% of pages containing illegal wildlife for sale were found through the ‘Related Pages’ feature.”

This suggests that Facebook’s algorithm purposefully connects users to pages and similar content based on a user’s interest. Algorithms incentivize users to rely and depend on wildlife trafficking content. They will continue to use social media platforms because it does half of the work for them:

- - Facilitating communication
  - Connecting users to potential buyers
  - Connecting users to other sellers
  - Discovering online chat groups
  - Discovering online community pages

This fails to reduce wildlife trafficking outreach. Instead, it accelerates visibility of this type of content to other users. Does Facebook’s algorithms go beyond Section 230 immunity?

Under these circumstances, Facebook maintains immunity. In Gonzalez v. Google LLC, the court explains how websites are not liable for user content when the website employs content-neutral algorithms. This means that a website did nothing more than program an algorithm to present similar content to a user’s interest. The website did not offer direct encouragement to publish illegal content, nor did it treat the content differently from other user content.

What about when a website profits from illegal posts? Facebook receives a 5% selling fee for each shipment sold by a user. Since illegal wildlife products are rare, these transactions are highly profitable. A pound of ivory can be worth up to $3,300. If a user sells five pounds of ivory from endangered elephants on Facebook, the platform would profit $825 from one transaction. The Facebook Marketplace algorithm is similar to the algorithm based on user interest and engagement. Here, Facebook’s algorithm can push illegal wildlife products to a user who has searched for similar products. Yet, if illegal products are constantly pushed and successful sales are made, Facebook then benefits and makes a profit off these transactions. Does this mean that Section 230 will continue to protect Facebook when it profits from illegal activity?

Evading Detection

Even with Facebook’s prohibited sales policy, users get creative to avoid detection. A simple search of “animals for sale” led me to a public Facebook group. Within 30 seconds of scrolling, I found a user selling live coral, and another user selling an aquarium system with live coral, and live fish. The former reads: Leather $50. However, the picture shows a live coral in a fish tank. Leather identifies the type of coral it is, without saying it’s coral. Even if this was fake coral, a simple Google search shows a piece of fake coral is worth less than $50. If Facebook is failing to prevent users from selling live coral and live fish, it is most likely failing to prevent online wildlife trafficking on its platform.

Another method commonly used to evade detection is when users post a vague description or a photo of an item and include the words “pm me” or “dm me.” These are abbreviations for “private message me” or “direct message me.” It is a quick way to direct interested users to personally reach out to the individual and discuss details in a private chat. It is a way to communicate outside of the leering public eye. Sometimes a user will offer alternative contact methods, such as a personal phone number or an email address. This transitions the interaction off of or to a new social media platform.

Due to high profitability, there are lower stakes when transactions are conducted anonymously online. Social media platforms are great for concealing a user’s identity. Users can use fake names to maintain anonymity behind their computer and phone screen. There are no real consequences for using a fake name when the user is unknown. Nor is there any type of identity verification to truly discover the user’s true identity. Even if a user is banned, the person can create a new account under a different alias. Some users are criminals tied to organized crime syndicates or terrorist groups. Many users operate outside of the United States and are overseas, which makes it difficult to locate them. Thus, social media platforms incentivize criminals to hide among various aliases with little to lose.

Why Are Wildlife Products Popular?

Wildlife products have a high demand for human benefit and use. Common reasons why humans value wildlife products include:

Do We Go After the Traffickers or the Social Media Platform?

Taking down every single wildlife trafficker, and users that facilitate these transactions would be the perfect solution to end wildlife trafficking. Realistically, it’s too difficult to identify these users due to online anonymity and geographical limitations. On the other hand, social media platforms continue to tolerate these illegal activities.

Here, it is clear that Facebook is not doing enough to stop wildlife trafficking. With each sale made on Facebook, Facebook receives a percentage. Section 230 should not protect Facebook when it reaps the benefits of illegal transactions. This takes it a step too far and should open Facebook to the market of: Section 230 liability.

Should Facebook maintain Section 230 immunity when it receives proceeds from illegal wildlife trafficking transactions? Where do we draw the line?

Mental Health Advertisements on #TikTok

The stigma surrounding mental illness has persisted since the mid-twentieth century. This stigma is one of the many reasons why 60% of adults with a mental illness often go untreated. The huge treatment disparity demonstrates a significant need to spread awareness and make treatment more readily available. Ironically, social media, which has been ridiculed for its negative impact on the mental health of its users, has become a really important tool for spreading awareness about and de-stigmatizing mental health treatment.

The content shared on social media is a combination of users sharing their experiences with a mental health condition and companies who treat mental health using advertisements to attract potential patients. At the first glance, this appears to be a very powerful way to use social media to bridge treatment gaps. However, it highlights concerns over vulnerable people seeing content and self-diagnosing themselves with a condition that they might not have and undergoing unnecessary, and potentially dangerous, treatment. Additionally, they might fail to undergo needed treatment because they are overlooking the true cause of their symptoms due to the misinformation they were subjected to.

Attention Deficit Hyperactivity Disorder (“ADHD”) is an example of a condition that social media has jumped on. #ADHD has 14.5 billion views on TikTok and 3 million posts on Instagram. Between 2007 and 2016, diagnoses of ADHD increased by 123%. Further, prescriptions for stimulants, which treat ADHD, have increased 16% since the pandemic. Many experts are attributing this, in large part, to the use of social media in spreading awareness about ADHD and the rise of telehealth companies that have emerged to treat ADHD during the pandemic. These companies have jumped on viral trends with targeted advertisements that oversimplify what ADHD actually looks like and then offers treatment to those that click on the advertisement.

The availability and reliance of telemedicine grew rapidly during the COVID-19 pandemic and many restrictions regarding telehealth were suspended. This created an opening in the healthcare industry for these new companies. ‘Done’ and ‘Cerebral’ are two examples of companies that have emerged during the pandemic to treat ADHD. These companies attract, accept, and treat patients through a very simplistic procedure: (1) social media advertisements, (2) short online questionnaire, (2) virtual visit, and (3) prescription.

Both Done and Cerebral have utilized social media platforms like Instagram and TikTok to lure potential patients to their services. The advertisements vary, but they all highlight how easy and affordable treatment is by emphasizing convenience, accessibility, and low cost. Accessing the care offered is as simple as swiping up on an advertisements that appear as users are scrolling on the platform. These targeted ads depict images of people seeking treatment, taking medication, and having their symptoms go away. Further, these companies utilize viral trends and memes to increase the effectiveness of the advertisements, which typically oversimplify complex ADHD symptoms and mislead consumers.

While these companies are increasing healthcare access for many patients due to the low cost and virtual platform, this speedy version of healthcare is blurring the line between offering treatment to patients and selling prescriptions to customers through social media. Further, medical professionals are concerned with how these companies are marketing addictive stimulants to young users, and, yet, remain largely unregulated due to outdated guidelines on advertisements for medical services.

The advertising model utilized by these telemedicine companies emphasize a need to modify existing laws to ensure that these advertisements are subjected to the FDA’s unique oversight to protect consumers. These companies are targeting young consumers and other vulnerable people to self-diagnose themselves with misleading information as to the criteria for a diagnosis. There are eighteen symptoms of ADHD and the average person meets at least one or two of those in the criteria, which is what these ads are emphasizing.

Advertisements in the medical sphere are regulated by either the FDA or the FTC. The FDA has unique oversight to regulate the marketing of prescription drugs by manufacturers and drug distributors in what is known as direct-to-consumer (“DTC”) drug advertising. The critics of prescription drug advertisements highlight the negative impact that DTC advertising has on the patient-provider relationship because patients go to providers expecting or requesting particular prescription treatment. In order to minimize these risks, the FDA requires that a prescription drug advertisement must be truthful, present a fair balance of the risks and benefits associated with the medications, and state an approved used of the medication. However, if the advertisement does not mention a particular drug or treatment, it eludes the FDA’s oversight.

Thus, the marketing of medical services, which does not market prescription drugs, is regulated only by the Federal Trade Commission (“FTC”) in the same manner as any other consumer good, which just means that the advertisement must not be false or misleading.

The advertisements these Telehealth companies are putting forward demonstrate that it is time for the FDA to step in because they are combining medical services and prescription drug treatment. They use predatory tactics to lure consumers into believing they have ADHD and then provide them direct treatment on a monthly subscription basis.

The potential for consumer harm is clear and many experts are pointing to the similarities between the opioid epidemic and stimulant drugs. However, the FDA has not currently made any changes to how they regulate advertising in light of social media. The laws regarding DTC drug advertising were prompted in part by the practice of self-diagnosis/self-medication by consumers and the false therapeutic claims made by manufacturers. The telemedicine model these companies are using is emphasizing these exact concerns by targeting consumers, convincing them they have a specific condition, and then offering the medication to treat it after quick virtual visit. Instead of patients going to their doctors requesting a specific prescription that may be inappropriate for a patient’s medical needs, patients are going to the telehealth providers that only prescribe a particular prescription that may also be inappropriate for a patient’s medical needs.

Through the use of social media, diagnosis and treatment with addictive prescription drugs can be initiated by an interactive advertisement in a manner that was not possible when the FDA made the distinctions that these types of advertisements would not be subject to its oversight. Thus, to protect consumers, it is vital that telemedicine advertisements are subjected to a more intrusive monitoring than consumer goods. This will require the companies making these advertisements to properly address the complex symptoms associated with conditions like ADHD and give fair balance to the harms of treatment.

According to the Pew Research Center, 69% of adults and 81% of teens in the United States use social media. Further, about 48% of Americans get their information regularly from social media. We often talk about misinformation in politics and news stories, but it’s permeating every corner of the internet. As these numbers continue to grow, it’s crucial to develop new methods to protect consumers, and regulating these advertisements is only the first step.

Is it HIGH TIME we allow Cannabis Content on Social Media?

Is it HIGHT TIME we allow Cannabis Content on Social Media?

The Cannabis Industry is Growing like a Weed

Social media provides a relationship between consumers and their favorite brands. Just about every company has a social media presence to advertise its products and grow its brand. Large companies command the advertising market, but smaller companies and one-person startups have their place too. The opportunity to expand your brand using social media is limitless to just about everyone. Except for the cannabis industry. With the developing struggle between social media companies and the politics of cannabis, comes an onslaught of problems facing the modern cannabis market. With recreational marijuana use legal in 21 states and Washington, D.C., and medical marijuana legal in 38 states, it may be time for this community to join the social media metaverse.

We know now that algorithms determine how many followers on a platform see a business’ content, whether or not the content is permitted, and whether the post or the user should be deleted. The legal cannabis industry has found itself in a similar struggle to legislators with social media giants ( like Facebook, Twitter, and Instagram) for increased transparency about their internal processes for filtering information, banning users, and moderating its platform. Mainstream cannabis businesses have been prevented from making their presence known on social media in the past, but legitimate businesses are being placed in a box with illicit drug users and prevented from advertising on public social media sites. The Legal cannabis industry is expected to be worth over $60 billion by 2024, and support for federal legalization is at an all-time high (68%). Now more than ever, brands are fighting for higher visibility amongst cannabis consumers.

Recent Legislation Could Open the Door for Cannabis

The question remains, whether the legal cannabis businesses have a place in the ever-changing landscape of the social media metaverse. Marijuana is currently a Schedule 1 narcotic on the Controlled Substances Act (1970). This categorization of Marijuana as Schedule 1 means that it has no currently accepted medical use and has a high potential for abuse. While that definition was acceptable when cannabis was placed on the DEAs list back in 1971, there has been evidence presented in opposition to that decision. Historians note, overt racism, combined with New Deal reforms and bureaucratic self-interest is often blamed for the first round of federal cannabis prohibition under the Marihuana Tax Act of 1937, which restricted possession to those who paid a steep tax for a limited set of medical and industrial applications. The legitimacy of cannabis businesses within the past few decades based on individual state legalization (both medical and recreational) is at the center of debate for the opportunity to market as any other business has. Legislation like the MORE act (Marijuana Opportunity Reinvestment and Expungement) which was passed by The House of Representatives gives companies some hope that they can one day be seen as legitimate businesses. If passed into law, Marijuana will be lowered or removed from the schedule list which would blow the hinges off the cannabis industry, legitimate businesses in states that have legalized its use are patiently waiting in the wings for this moment.

States like New York have made great strides in passing legislation to legalize marijuana the “right” way and legitimize business, while simultaneously separating themselves from the illegal and dangerous drug trade that has parasitically attached itself to this movement. The Marijuana Regulation and Tax Act (MRTA) establishes a new framework for the production and sale of cannabis, creates a new adult-use cannabis program, and expands the existing medical cannabis and cannabinoid (CBD) hemp programs. MRTA also established the Office of Cannabis Management (OCM), which is the governing body for cannabis reform and regulation, particularly for emerging businesses that wish to establish a presence in New York. The OCM also oversees the licensure, cultivation, production, distribution, sal,e and taxation of medical, adult-use, and cannabinoid hemp within New York State. This sort of regulatory body and structure are becoming commonplace in a world that was deemed to be like the “wild-west” with regulatory abandonment, and lawlessness.

But, What of the Children?

In light of all the regulation that is slowly surrounding the Cannabis businesses, will the rapidly growing social media landscape have to concede to the demands of the industry and recognize their presence? Even with regulations cannabis exposure is still an issue to many about the more impressionable members of the user pool. Children and young adults are spending more time than ever online and on social media. On average, daily screen use went up among tweens (ages 8 to 12) to five hours and 33 minutes from four hours and 44 minutes, and to eight hours and 39 minutes from seven hours and 22 minutes for teens (ages 13 to 18). This group of social media consumers is of particular concern to both the legislators and the social media companies themselves. MRTA offers protection from companies advertising with the intent of looking like common brands marketed to children. Companies are restricted to using their name and their logo, with explicit language that the item inside of the wrapper has cannabis or Tetrahydrocannabinol (THC) in it. MRTA restrictions along with strict community guidelines from several social media platforms and government regulations around the promotion of marijuana products, many brands are having a hard time building their communities’ presence on social media. The cannabis companies have resorted to creating their own that promote the content they are being prevented from blasting on other sites. Big-name rapper and cannabis enthusiast, Berner who created the popular edible brand “Cookies”, has been approached to partner with the creators to bolster their brand and raise awareness. Unfortunately, the sites became what mainstream social media sites feared in creating their guideline, an unsavory haven for illicit drug use and other illegal behavior. One of the pioneer apps in this field Social Club was removed from the app store after multiple reports of illegal behavior. The apps have since been more internally regulated but have not taken off like the creators intended. Legitimate cannabis businesses are still being blocked from advertising on mainstream apps.

These Companies Won’t go Down Without a Fight

While cannabis companies aren’t supposed to be allowed on social media sites, there are special rules in place if a legal cannabis business were to have a presence on a social media site. Social media is the fastest and most efficient way to advertise to a desired audience. With appropriate regulatory oversight and within the confines of the changing law, social media sites may start to feel pressure to allow more advertising from cannabis brands.

A Petition has been generated to bring META, the company that owns Facebook and Instagram among other sites, to discuss the growing frustrations and strict restrictions on their social media platforms. The petition on Change.org has managed to amass 13,000 signatures. Arden Richard, the founder of WeedTube, has been outspoken about the issues saying “This systematic change won’t come without a fight. Instagram has already begun deleting posts and accounts just for sharing the petition,”. He also stated, “The cannabis industry and community need to come together now for these changes and solutions to happen,”. If not, he fears, “we will be delivering this industry into the hands of mainstream corporations when federal legalization happens.”

Social media companies recognize the magnitude of the legal cannabis community because they have been banning its content nonstop since its inception. However, the changing landscape of the cannabis industry has made their decision to ban their content more difficult. Until federal regulation changes, businesses operating in states that have legalized cannabis will be force banned by the largest advertising platforms in the world.

I Knew I Smelled a Rat! How Derivative Works on Social Media can “Cook Up” Infringement Lawsuits

If you have spent more than 60 seconds scrolling on social media, you have undoubtably been exposed to short clips or “reels” that often reference different pop culture elements that may be protected intellectual property. While seemingly harmless, it is possible that the clips you see on various platforms are infringing on another’s copyrighted work. Oh Rats!

What Does Copyright Law Tell Us?

Copyright protection, which is codified in 17 U.S.C. §102, extends to “original works of authorship fixed in any tangible medium of expression”. It refers to your right, as the original creator, to make copies of, control, and reproduce your own original content. This applies to any created work that is reduced to a tangible medium. Some examples of copyrightable material include, but are not limited to, literary works, musical works, dramatic works, motion pictures, and sound recordings.

Additionally, one of the rights associated with a copyright holder is the right to make derivative works from your original work. Codified in 17 U.S.C. §101, a derivative work is “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work’.” This means that the copyright owner of the original work also reserves the right to make derivative works. Therefore, the owner of the copyright to the original work may bring a lawsuit against someone who creates a derivative work without permission.

Derivative Works: A Recipe for Disaster!

The issue of regulating derivative works has only intensified with the growth of cyberspace and “fandoms”. A fandom is a community or subculture of fans that’s built itself up around one specific piece of pop culture and who share a mutual bond over their enthusiasm for the source material. Fandoms can also be composed of fans that actively participate and engage with the source material through creative works, which is made easier by social media. Historically, fan works have been deemed legal under the fair use doctrine, which states that some copyrighted material can be used without legal permission for the purposes of scholarship, education, parody, or news reporting, so long as the copyrighted work is only being used to the extent necessary. Fair use can also apply to a derivative work that significantly transforms the original copyrighted work, adding a new expression, meaning, or message to the original work. So, that means that “anyone can cook”, right? …Well, not exactly! The new, derivative work cannot have an economic impact on the original copyright holder. I.e., profits cannot be “diverted to the person making the derivative work”, when the revenue could or should have gone to original copyright holder.

With the increased use of “sharing” platforms, such as TikTok, Instagram, or YouTube, it has become increasingly easier to share or distribute intellectual property via monetized accounts. Specifically, due to the large amount of content that is being consumed daily on TikTok, its users are incentivized with the ability to go “viral” instantaneity, if not overnight, as well the ability to earn money through the platform’s “Creator Fund.” The Creator Fund is paid for by the TikTok ads program, and it allows creators to get paid based on the amount of views they receive. This creates a problem because now that users are getting paid for their posts, the line is blurred between what is fair use and what is a violation of copyright law. The Copyright Act fails to address the monetization of social media accounts and how that fits neatly into a fair use analysis.

Ratatouille the Musical: Anyone Can Cook?

Back in 2020, TikTok users Blake Rouse and Emily Jacobson were the first of many to release songs based on Disney-Pixar’s 2007 film, Ratatouille. What started out as a fun trend for users to participate in, turned into a full-fledged viral project and eventual tangible creation. Big name Broadway stars including André De Shields, Wayne Brady, Adam Lambert, Mary Testa, Kevin Chamberlin, Priscilla Lopez, and Tituss Burgess all participated in the trend, and on December 9, 2020, it was announced that Ratatouille was coming to Broadway via a virtual benefit concert.

Premiered as a one-night livestream event in January 1 2021, all profits generated from the event were donated to the Entertainment Community Fund (formerly the Actors Fund), which is a non-profit organization that supports performers and workers in the arts and entertainment industry. It initially streamed in over 138 countries and raised over $1.5 million for the charity. Due to its success, an encore production was streamed on TikTok 10 days later, which raised an additional $500,000 for the fund (totaling $2 million). While this is unarguably a derivative work, the question of fair use was not addressed here because Disney lawyers were smart enough not to sue. In fact, they embraced the Ratatouille musical by releasing a statement to the Verge magazine:

“Although we do not have development plans for the title, we love when our fans engage with Disney stories. We applaud and thank all of the online theatre makers for helping to benefit The Actors Fund in this unprecedented time of need.”

Normally, Disney is EXTREMELY strict and protective over their intellectual property. However, this small change of heart has now opened a door for other TikTok creators and fandom members to create unauthorized derivative works based on others’ copyrighted material.

Too Many Cooks in the Kitchen!

Take the “Unofficial Bridgerton Musical”, for example. In July of 2022, Netflix sued content creators Abigail Barlow and Emily Bear for their unauthorized use of Netflix’s original series, Bridgerton. The Bridgerton Series on Netflix is based on the Bridgerton book series by Julia Quinn. Back in 2020, Barlow and Bear began writing and uploading songs based on the Bridgerton series to TikTok for fun. Needless to say, the videos went viral, thus prompting Barlow and Bear to release an entire musical soundtrack based on Bridgerton. They even went so far as to win the 2022 Grammy Award for Best Musical Album.

On July 26, Barlow and Bear staged a sold-out performance with tickets ranging from $29-$149 at the New York Kennedy Center, and also incorporated merchandise for sale that included the “Bridgerton” trademark. Netflix then sued, demanding an end to these for-profit performances. Interestingly enough, Netflix was allegedly initially on board with Barlow and Bear’s project. However, although Barlow and Bear’s conduct began on social media, the complaint alleges they “stretched fanfiction way past its breaking point”. According to the complaint, Netflix “offered Barlow & Bear a license that would allow them to proceed with their scheduled live performances at the Kennedy Center and Royal Albert Hall, continue distributing their album, and perform their Bridgerton-inspired songs live as part of larger programs going forward,” which Barlow and Bear refused. Netflix also alleged that the musical interfered with its own derivative work, the “Bridgerton Experience,” an in-person pop-up event that has been offered in several cities.

Unlike the Ratatouille: The Musical, which was created to raise money for a non-profit organization that benefited actors during the COVID-19 pandemic, the Unofficial Bridgerton Musical helped line the pockets of its creators, Barlow and Bear, in an effort to build an international brand for themselves. Netflix ended up privately settling the lawsuit in September of 2022.

Has the Aftermath Left a Bad Taste in IP Holder’s Mouths?

The stage has been set, and courts have yet to determine exactly how fan-made derivative works play out in a fair use analysis. New technologies only exacerbate this issue with the monetization of social media accounts and “viral” trends. At a certain point, no matter how much you want to root for the “little guy”, you have to admit when they’ve gone too far. Average “fan art” does not go so far as to derive significant profits off the original work and it is very rare that a large company will take legal action against a small content creator unless the infringement is so blatant and explicit, there is no other choice. IP law exists to protect and enforce the rights of the creators and owners that have worked hard to secure their rights. Allowing content creators to infringe in the name of “fair use” poses a dangerous threat to intellectual property law and those it serves to protect.

Update Required: An Analysis of the Conflict Between Copyright Holders and Social Media Users

Opening

For anyone who is chronically online as yours truly, in one way or another we have seen our favorite social media influencers, artists, commentators, and content creators complain about their problems with the current US Intellectual Property (IP) system. Be it that their posts are deleted without explanation or portions of their video files are muted, the combination of factors leading to copyright issues on social media is endless. This, in turn, has a markedly negative impact on free and fair expression on the internet, especially within the context of our contemporary online culture. For better or worse, interaction in society today is intertwined with the services of social media sites. Conflict arises when the interests of copyright holders clash with this reality. They are empowered by byzantine and unrealistic laws that hamper our ability to exist as freely as we do in real life. While they do have legitimate and fundamental rights that need to be protected, such rights must be balanced out with desperately needed reform. People’s interaction with society and culture must not be hampered, for that is one of the many foundations of a healthy and thriving society. To understand this, I venture to analyze the current legal infrastructure we find ourselves in.

Current Relevant Law

The current controlling laws for copyright issues on social media are the Copyright Act of 1976 and the Digital Millennium Copyright Act (DMCA). The DMCA is most relevant to our analysis; it gives copyright holders relatively unrestrained power to demand removal of their property from the internet and to punish those using illegal methods to get ahold of their property. This broad law, of course, impacted social media sites. Title II of the law added 17 U.S. Code § 512 to the Copyright Act of 1976, creating several safe harbor provisions for online service providers (OSP), such as social media sites, when hosting content posted by third parties. The most relevant of these safe harbors to this issue is 17 U.S. Code § 512(c), which states that an OSP cannot be liable for monetary damages if it meets several requirements and provides a copyright holder a quick and easy way to claim their property. The mechanism, known as a “notice and takedown” procedure, varies by social media service and is outlined in their terms and conditions of service (YouTube, Twitter, Instagram, TikTok, Facebook/Meta). Regardless, they all have a complaint form or application that follows the rules of the DMCA and usually will rapidly strike objectionable social media posts by users. 17 U.S. Code § 512(g) does provide the user some leeway with an appeal process and § 512(f) imposes liability to those who send unjustifiable takedowns. Nevertheless, a perfect balance of rights is not achieved.

The doctrine of fair use, codified as 17 U.S. Code § 107 via the Copyright Act of 1976, also plays a massive role here. It established a legal pathway for the use of copyrighted material for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” without having to acquire right to said IP from the owner. This legal safety valve has been a blessing for social media users, especially with recent victories like Hosseinzadeh v. Klein, which protected reaction content from DMCA takedowns. Cases like Lenz v. Universal Music Corp further established that fair use must be considered by copyright holders when preparing for takedowns. Nevertheless, failure to consider said rights by true copyright holders still happens, as sites are quick to react to DMCA complaints. Furthermore, the flawed reporting systems of social media sites lead to abuse by unscrupulous actors faking true ownership. On top of that, such legal actions can be psychologically and financially intimidating, especially when facing off with a major IP holder, adding to the unbalanced power dynamic between the holder and the poster.

The Telecommunications Act of 1996, which focuses primarily on cellular and landline carriers, is also particularly relevant to social media companies in this conflict. At the time of its passing, the internet was still in its infancy. Thus, it does not incorporate an understanding of the current cultural paradigm we find ourselves in. Specifically, the contentious Section 230 of the Communication Decency Act (Title V of the 1996 Act) works against social media companies in this instance, incorporating a broad and draconian rule on copyright infringement. 47 U.S. Code § 230(e)(2) states in no uncertain terms that “nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.” This has been interpreted and restated in Perfect 10, Inc. v. CCBill LLC to mean that such companies are liable for user copyright infringement. This gap in the protective armor of Section 230 is a great concern to such companies, therefore they react strongly to such issues.

What is To Be Done?

Arguably, fixing the issues around copyright on social media is far beyond the capacity of current legal mechanisms. With ostensibly billions of posts each day on various sites, regulation by copyright holders and sites is far beyond reason. It will take serious reform in the socio-cultural, technological, and legal arenas before a true balance of liberty and justice can be established. Perhaps we can start with an understanding by copyright holders not to overreact when their property is posted online. Popularity is key to success in business, so shouldn’t you value the free marketing that comes with your copyrighted property getting shared honestly within the cultural sphere of social media? Social media sites can also expand their DMCA case management teams or create tools for users to accredit and even share revenue with, if they are an influencer or content creator, the copyright holder. Finally, congressional action is desperately needed as we have entered a new era that requires new laws. That being said, achieving a balance between the free exchange of ideas and creations and the rights of copyright holders must be the cornerstone of the government’s approach to socio-cultural expression on social media. That is the only way we can progress as an ever more online society.

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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?

#ad : The Rise of Social Media Influencer Marketing

#Ad : The rise of social media influence marketing.

When was the last time you bought something from a billboard or a newspaper? Probably not recently. Instead, advertisers are now spending their money on digital market platforms. And at the pinnacle of these marketing platforms are influencers. Since millennial, generation Y, and generation Z consumers spend so much time consuming user-generated content, the creator begins to become their acquaintance and could even be categorized as a friend. Once that happens, the influencer has more power to do what their name suggests and influence the user to purchase. This is where our current e-commerce market is headed.

Imagine this:

If a person you know and trust suggests you try a brand new product, you would probably try it. Now, if that same person were to divulge to you that they were paid to tell you all about how wonderful this product is, you would probably have some questions about the reality of their love for this product, right?

Lucky for us consumers, the Federal Trade Commission (FTC) has established an Endorsement Guide so we can all have that information when we are being advertised to by our favorite social media influencers.

The times have changed, quickly.

Over the past 8 years, there has been a resounding shift in the way companies market their products, to the younger generation specifically. The unprecedented changes throughout the physical and digital marketplace have forced brands to think thoroughly through their strategies on how to reach the desired consumer. Businesses are now forced to rely on digital and social media marketing more than they ever have before.

With the rise of social media and apps like Vine, and Tik Tok, came a new metaverse with almost untapped potential for marketing. This was the way companies would be able to reach this younger generation of consumers, you know, the ones with their heads craned over a phone and their thumbs constantly scrolling. These were the people that advertisers had trouble reaching, until now.

What the heck is an “ Influencer”?

The question “What is an influencer?” has become standard in conversations among social media users. We know who they are, but the term is very loosely defined. Rachel David, a popular, YouTube personality, defined it with the least ambiguity as “Someone like you and me, except they chose to consistently post stuff online”. This definition seems harmless enough until you understand that it is much more nuanced than that and these individuals are being paid huge sums of money to push products that they most likely don’t use themselves, despite what their posts may say. The reign of celebrity-endorsed marketing is shifting to a new form of celebrity called an “Influencer”. High-profile celebrities were too far removed from the average consumer. A new category emerged with the rise of social media use, and the only difference between a celebrity and a famous influencer is…relatability. Consumers could now see themselves in the influencer and would default to trusting them and their opinion.

One of the first instances we saw influencers flexing their advertising muscle was the popular app Vine .Vine was a revolutionary app and frankly existed before its time. It introduced the user to a virtual experience that matched their dwindling attention span. Clips were no more than 6 seconds long and would repeat indefinitely until the user swiped to the next one. This short clip captured the user’s attention and provided that much-needed dopamine hit. This unique platform began rising in popularity, rivaling other apps like the powerhouse of user engagement, YouTube. Unlike YouTube, however, Vine required less work on the shorter videos, and more short videos were produced by the creator. Since the videos were so short, the consumers wanted more and more videos (content), which opened the door for other users to blast their content, creating an explosion of “Vine Famous” creators. Casual creators were now, almost overnight, amassing millions of followers, followers they can now influence. Vine failed to capitalize on its users and its inability to monetize on its success, it ultimately went under in 2016. But, what happened to all of those influencers? They made their way to alternate platforms like YouTube, Instagram, and Facebook taking with them their followers and subsequently their influencer status. These popular influencers went from being complete strangers to people the users inherently trusted because of the perceived transparency into their daily life.

Here come the #ads.

Digital marketing was not introduced by Vine, but putting a friendly influencer face behind the product has some genesis there. Consumerism changed when social media traffic increased. E-commerce rose categorically when the products were right in front of the consumer’s face, even embedded into the content they were viewing. Users were watching advertisements and didn’t even care. YouTube channels that were dedicated solely to reviewing different products and giving them a rating became an incredibly popular genre of video. Advertisers saw content becoming promotion for a product and the shift from traditional marketing strategies took off. Digital, inter-content advertising was the new way to reach this generation.

Now that influencer marketing is a mainstream form of marketing, the prevalence of the FTC Endorsement Guide has amplified. Creators are required to be transparent about their intentions in marketing a product. The FTC guide suggests ways influencers can effectively market the product they are endorsing while remaining transparent about their motivations to the user. The FTC guide provides examples of how and when to disclose the fact that a creator is sponsoring or endorsing a particular product that must be followed to avoid costly penalties. Most users prefer to have their content remain as “on brand” as possible and will resort to the most surreptitious option and choose to disguise the “#ad” within a litany of other relevant hashtags.

The age of advertising has certainly changed right in front of our eyes, literally. As long as influencers remain transparent about their involvement with the products they show in their content, consumers will inherently trust them and their opinion on the product. So sit back, relax, and enjoy your scrolling. But, always be cognizant that your friendly neighborhood influencer may have monetary motivation behind their most recent post.

Miracles Can Be Misleading

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

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

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

Who Is In Charge?

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

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

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

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

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

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

What Else Can We Do?

Currently, the FTC, utilizing its authority under the Act, is the main legal recourse for removing these deceitful advertisements from social media. Unfortunately, social media platforms, such as Facebook, Twitter, Instagram, etc., cannot be liable for the post of other users. Under section 230 of the Communications Decency Act, “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” That means, social media platforms cannot be held responsible for the misleading advertisements of MWLP; regardless of if the advertisement is through an influencer or the companies own social media page and regardless of the collateral consequences that these advertisements create.

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

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.”

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?

Tag: Instagram