Tag: Social Media

Privacy Please: Privacy Law, Social Media Regulation and the Evolving Privacy Landscape in the US

Social media regulation is a touchy subject in the United States.  Congress and the White House have proposed, advocated, and voted on various bills, aimed at protecting and guarding people from data misuse and misappropriation, misinformation, harms suffered by children, and for the implications of vast data collection. Some of the most potent concerns about social media stem from use and misuse of information by the platforms- from the method of collection, to notice of collection and use of collected information. Efforts to pass a bill regulating social media have been frustrated, primarily by the First Amendment right to free speech. Congress has thus far failed to enact meaningful regulation on social media platforms.

The way forward may well be through privacy law. Privacy laws give people some right to control their own personhood including their data, right to be left alone, and how and when people see and view them. Privacy laws originated in their current form in the late 1800’s with the impetus being one’s freedom from constant surveillance by paparazzi and reporters, and the right to control your own personal information. As technology mutated, our understanding of privacy rights grew to encompass rights in our likeness, our reputation, and our data. Current US privacy laws do not directly address social media, and a struggle is currently playing between the vast data collection practices of the platforms, immunity for platforms under Section 230, and private rights of privacy for users.

There is very little Federal Privacy law, and that which does exist is narrowly tailored to specific purposes and circumstances in the form of specific bills. Somes states have enacted their own privacy law scheme, California being on the forefront, Virginia, Colorado, Connecticut, and Utah following in its footsteps. In the absence of a comprehensive Federal scheme, privacy law is often judge-made, and offers several private rights of action for a person whose right to be left alone has been invaded in some way. These are tort actions available for one person to bring against another for a violation of their right to privacy.

Privacy Law Introduction

Privacy law policy in the United States is premised on three fundamental personal rights to privacy:

  1. Physical right to privacy- Right to control your own information
  2. Privacy of decisions– such as decisions about sexuality, health, and child-rearing. These are the constitutional rights to privacy. Typically not about information, but about an act that flows from the decision
  3. Proprietary Privacy – the ability to protect your information from being misused by others in a proprietary sense.

Privacy Torts

Privacy law, as it concerns the individual, gives rise to four separate tort causes of action for invasion of privacy:

  1. Intrusion upon Seclusion- Privacy law provides a tort cause of action for intrusion upon seclusion when someone intentionally intrudes upon the reasonable expectation of seclusion of another, physically or otherwise, and the intrusion is objectively highly offensive.
  2. Publication of Private Facts- One gives publicity To a matter concerning the Private life of another that is not of legitimate concern to the public, and the matter publicized would be objectively highly offensive. The first amendment provides a strong defense for publication of truthful matters when they are considered newsworthy.
  3. False Light – One who gives publicity to a matter concerning another that places the other before the public in a false light when The false light in which the other was placed would be objectively highly offensive and the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
  4. Appropriation of name and likeness- Appropriation of one’s name or likeness to the defendant’s own use or benefit. There is no appropriation when a persona’s picture is used to illustrate a non-commercial, newsworthy article. This is usually commercial in nature but need not be. The appropriation could be of “identity”. It need not be misappropriation of name, it could be the reputation, prestige, social or commercial standing, public interest, or other value on the plaintiff’s likeness.

These private rights of action are currently unavailable for use against social media platforms because of Section 230 of the Decency in Communications Act, which provides broad immunity to online providers for posts on their platforms. Section 230 prevents any of the privacy torts from being raised against social media platforms.

The Federal Trade Commission (FTC) and Social Media

Privacy law can implicate social media platforms when their practices become unfair or deceptive to the public through investigation by the Federal Trade Commission (FTC). The FTC is the only federal agency with both consumer protection and competition jurisdiction in broad sectors of the economy. FTC investigates business practices where those practices are unfair or deceptive. FTC Act 15 U.S.C S 45- Act prohibits “unfair or deceptive acts or practices in or affecting commerce” and grants broad jurisdiction over privacy practices of businesses to the FTC. Trade practice is unfair if it causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and is not outweighed by countervailing benefits to consumers or competition. A deceptive act or practice is a material representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.

Critically, there is no private right of action in FTC enforcement. The FTC has no ability to enforce fines for S5 violations but can provide injunctive relief. By design, the FTC has very limited rulemaking authority, and looks to consent decrees and procedural, long-lasting relief as an ideal remedy. The FTC pursues several types of misleading or deceptive policy and practices that implicate social media platforms: notice and choice paradigms, broken promises, retroactive policy changes, inadequate notice, and inadequate security measures. Their primary objective is to negotiate a settlement where the company submits to certain measures of control of oversight by the FTC for a certain period of time. Violations of the agreements could yield additional consequences, including steep fines and vulnerability to class action lawsuits.

Relating to social media platforms, the FTC has investigated misleading terms and conditions, and violations of platform’s own policies. In Re Snapchat, the platform claimed that user’s posted information disappeared completely after a certain period of time, however, through third party apps and manipulation of user’s posts off of the platform, posts could be retained. The FTC and Snapchat settled, through a consent decree, to subject Snapchat to FTC oversight for 20 years.

The FTC has also investigated Facebook for violation of its privacy policy. Facebook has been ordered to pay a $5 billion penalty and to submit to new restrictions and a modified corporate structure that will hold the company accountable for the decisions it makes about its users’ privacy to settle FTC charges claiming that they violated a 2012 agreement with the agency.

Unfortunately, none of these measures directly give individuals more power over their own privacy. Nor do these policies and processes give individuals any right to hold platforms responsible for being misled by algorithms using their data, or for intrusion into their privacy by collecting data without allowing an opt-out.

Some of the most harmful social media practices today relate to personal privacy. Some examples include the collection of personal data, the selling and dissemination of data through the use of algorithms designed to subtly manipulate our pocketbooks and tastes, collection and use of data belonging to children, and the design of social media sites to be more addictive- all in service of the goal of commercialization of data.

No current Federal privacy scheme exists. Previous Bills on Privacy have been few and narrowly tailored to relatively specific circumstances and topics like healthcare and medical data protection by HIPPA, protection of data surrounding video rentals as in the Video Privacy Protection Act, and narrow protection for children’s data in Children’s Online Protection Act. All the schemes are outdated and fall short of meeting the immediate need of broad protection of widely collected and broadly utilized data from social media.

Current Bills on Privacy

Upon request from some of the biggest platforms, outcry from the public, and the White House’s request for Federal Privacy regulation, Congress appears poised to act. The 118th Congress has pushed privacy law as a priority in this term by introducing several bills related to social media privacy. There are at least ten Bills currently pending between the House of the Senate addressing a variety of issues and concerns from Children’s data privacy to the minimum age for use and designation of a new agency to monitor some aspects of privacy.

S744– The Data Care Act of 2023 aims to protect social media user’s data privacy by imposing fiduciary duties on the platforms. The original iteration of the bill was introduced in 2021 and failed to receive a vote. It was re-introduced in March of 2023 and is currently pending. Under the act, social media platforms would have the duty to reasonably secure user’s data from access, refrain from using the data in a way that could foreseeably “benefit the online service provider to the detriment of the end user” and to prevent disclosure of user’s data unless the party is also bound by these duties. The bill authorizes the FTC and certain state officials to take enforcement actions upon breach of those duties. The states would be permitted to take their own legal action against companies for privacy violations. The bill would also allow the FTC to intervene in the enforcement efforts by imposing fines for violations.

H.R.2701 – Perhaps the most comprehensive piece of legislation on the House floor is the Online Privacy Act. In 2023, the bill was reintroduced by democrat Anna Eshoo after an earlier version on the bill failed to receive a vote and died in Congress. The Online Privacy Act aims to protect users by providing individuals rights relating to the privacy of their personal information. The bill would also provide privacy and security requirements for treatment of personal information. To accomplish this, the bill established a new agency – the Digital Privacy Agency- which would be responsible for enforcement of the rights and requirements. The new individual rights in privacy are broad and include the rights of access, correction, deletion, human review of automated decision, individual autonomy, right to be informed, and right to impermanence, amongst others. This would be the most comprehensive plan to date. The establishment of a new agency with a task specific to administration and enforcement of privacy laws would be incredibly powerful. The creation of this agency would be valuable irrespective of whether this bill is passed.

HR 821– The Social Media Child Protection Act is a sister bill to one by a similar name which originated in the Senate. This bill aims to protect children from the harms of social media by limiting children’s access to it. Under the bill, Social Media platforms are required to verify the age of every user before accessing the platform by submitting a valid identity document or by using another reasonable verification method. A social media platform will be prohibited from allowing users under the age of 16 to access the platform. The bill also requires platforms to establish and maintain reasonable procedures to protect personal data collected from users. The bill affords for a private right of action as well as state and FTC enforcement.

S 1291–The Protecting Kids on Social Media Act is similar to its counterpart in the House, with slightly less tenacity. It similarly aims to protect children from social media’s harms. Under the bill, platforms must verify its user’s age, not allow the user to use the service unless their age has been verified, and must limit access to the platform for children under 12. The bill also prohibits retention and use of information collected during the age verification process. Platforms must take reasonable steps to require affirmative consent from the parent or guardian of a minor who is at least 13 years old for the creation of a minor account, and reasonably allow access for the parent to later revoke that consent. The bill also prohibits use of data collected from minors for algorithmic recommendations. The bill would require the Department of Commerce to establish a voluntary program for secure digital age verification for social media platforms. Enforcement would be through the FTC or state action.

S 1409– The Kids Online Safety Act, proposed by Senator Blumenthal of Connecticut, also aims to protect minors from online harms. This bill, as does the Online Safety Bill, establishes fiduciary duties for social media platforms regarding children using their sites. The bill requires that platforms act in the best interest of minors using their services, including mitigating harms that may arise from use, sweeping in online bullying and sexual exploitation. Social media sites would be required to establish and provide access to safeguards such as settings that restrict access to minor’s personal data and granting parents the tools to supervise and monitor minor’s use of the platforms. Critically, the bill establishes a duty for social media platforms to create and maintain research portals for non-commercial purposes to study the effect that corporations like the platforms have on society.

Overall, these bills indicate Congress’s creative thinking and commitment to broad privacy protection for users from social media harms. I believe the establishment of a separate body to govern, other than the FTC which lacks the powers needed to compel compliance, to be a necessary step. Recourse for violations on par with the EU’s new regulatory scheme, mainly fines in the billions, could help.

Many of the bills, for myriad aims, establish new fiduciary duties for the platforms in preventing unauthorized use and harms for children. There is real promise in this scheme- establishing duty of loyalty, diligence and care for one party has a sound basis in many areas of law and would be more easily understood in implementation.

The notion that platforms would need to be vigilant in knowing their content, studying its affects, and reporting those effects may do the most to create a stable future for social media.

The legal responsibility for platforms to police and enforce their policies and terms and conditions is another opportunity to further incentivize platforms. The FTC currently investigates policies that are misleading or unfair, sweeping in the social media sites, but there could be an opportunity to make the platforms legally responsible for enforcing their own policies, regarding age, against hate, and inappropriate content, for example.

What would you like to see considered in Privacy law innovation for social media regulation?

Social Media, Minors, and Algorithms, Oh My!

What is an algorithm and why does it matter?

Social media algorithms are intricately designed data organization systems aimed at maximizing user engagement by sorting and delivering content tailored to individual preferences. At their core, social media algorithms collect and subsequently use extensive user data, employing machine learning techniques to better understand and predict user behavior. Social media algorithms note and analyze hundreds of thousands of data points, including past interactions, likes, shares, content preferences, time spent viewing content, and social connections to curate a personalized feed for each user. Social media algorithms are designed this way to keep users on the site, thus giving the site more time to put advertisements on the user’s feed and drive more profits for the social media site in question. The fundamental objective of an algorithm is to capture and maintain user attention, expose the user to an optimal amount of advertisements, and use data from users to curate their feed to keep them engaged for longer.

Addiction comes in many forms

One key element contributing to the addictiveness of social media is the concept of variable rewards. Algorithms strategically present a mix of content, varying in type and engagement level, to keep users interested in their feed. This unpredictability taps into the psychological principle of operant conditioning, where intermittent reinforcement, such as receiving likes, comments, or discovering new content, reinforces habitual platform use. Every time a user sees an entertaining post or receives a positive notification, the brain releases dopamine, the main chemical associated with addiction and addictive behaviors. The constant stream of notifications and updates, fueled by algorithmic insights and carefully tailored content suggestions, can create a sense of anticipation in users for their next dopamine fix, which encourages users to frequently update and scan their feeds to receive the next ‘reward’ on their timeline. The algorithmic and numbers-driven emphasis on user engagement metrics, such as the amount of likes, comments, and shares on a post, further intensifies the competitive and social nature of social media platforms, promoting frequent use.

Algorithms know you too well

Furthermore, algorithms continuously adapt to user behavior through real-time machine learning. As users engage with content, algorithms will analyze and refine their predictions, ensuring that the content remains compelling and relevant to the user over time. This iterative feedback loop further deepens the platform’s understanding of individual users, creating a specially curated and highly addictive feed that the user can always turn to for a boost of dopamine. This heightened social aspect, coupled with the algorithms’ ability to surface content that resonates deeply with the user, enhances the emotional connection users feel to the platform and their specific feed, which keeps users coming back time after time. Whether it be from seeing a new, dopamine-producing post, or posting a status that receives many likes and shares, every time one opens a social media app or website, it can produce seemingly endless new content, further reinforcing regular, and often unhealthy use.

A fine line to tread

As explained above, social media algorithms are key to user engagement. They are able to provide seemingly endless bouts of personalized content and maintain users’ undivided attention through their ability to understand the user and the user’s preferences in content. This pervasive influence extends to children, who are increasingly immersed in digital environments from an early age. Social media algorithms can offer constructive experiences for children by promoting educational content discovery, creativity, and social connectivity that would otherwise be impossible without a social media platform. Some platforms, like YouTube Kids, leverage algorithms to recommend age-appropriate content tailored to a child’s developmental stage. This personalized curation of interest-based content can enhance learning outcomes and produce a beneficial online experience for children. However, while being exposed to age-appropriate content may not harm the child viewers, it can still cause problems related to content addiction.

‘Protected Development’

Children are generally known to be naïve and impressionable, meaning full access to the internet can be harmful for their development, as they may take anything they see at face value. The American Psychological Association has said that, “[d]uring adolescent development, brain regions associated with the desire for attention, feedback, and reinforcement from peers become more sensitive. Meanwhile, the brain regions involved in self-control have not fully matured.” Social media algorithms play a pivotal role in shaping the content children can encounter by prioritizing engagement metrics such as likes, comments, and shares. In doing this, social media sites create an almost gamified experience that encourages frequent and prolonged use amongst children. Children also have a tendency to intensely fixate on certain activities, interests, or characters during their early development, further increasing the chances of being addicted to their feed.

Additionally, the addictive nature of social media algorithms poses significant risks to children’s physical and mental well-being. The constant stream of personalized content, notifications, and variable rewards can contribute to excessive screen time, impacting sleep patterns and physical health. Likewise, the competitive nature of engagement metrics may result in a sense of inadequacy or social pressure among young users, leading to issues such as cyberbullying, depression, low self-esteem, and anxiety.

Stop Addictive Feeds Exploitation (SAFE) for Kids

The New York legislature has spotted the anemic state of internet protection for children and identified the rising mental health issues relating to social media in the youth.  Announced their intentions at passing laws to better protect kids online. The Stop Addictive Feeds Exploitation (SAFE) for Kids Act is aimed explicitly at social media companies and their feed-bolstering algorithms. The SAFE for Kids Act is intended to “protect the mental health of children from addictive feeds used by social media platforms, and from disrupted sleep due to night-time use of social media.”

Section 1501 of The Act would essentially prohibit operators of social media sites from providing addictive, algorithm-based feeds to minors without first obtaining parental permission. Instead the default feed on the program would be a chronologically sorted main timeline, one more popular in the infancy of social media sites. Section 1502 of The Act would also require social media platforms to obtain parental consent before allowing notifications between the hours of 12:00 AM and 6:00 AM and creates an avenue for opting out of access to the platform between the same hours. The Act would also provide a limit on the overall number of hours a minor can spend on a social media platform. Additionally, the Act would authorize the Office of the Attorney General to bring a legal action to enjoin or seek damages/civil penalties of up to $5,000 per violation and allow any parent/guardian of a covered minor to sue for damages of up to $5,000 per user per incident, or actual damages, whichever is greater.

A sign of the times

The Act accurately represents the growing concerns of the public in its justification section, where it details many of the above referenced problems with social media algorithms and the State’s role in curtailing the well-known negative effects they can have on a protected class. The New York legislature has identified the problems that social media addiction can present, and have taken necessary steps in an attempt to curtail it.

Social media algorithms will always play an intricate role in shaping user experiences. However, their addictive nature should rightfully subject them to scrutiny, especially in their effects among children. While social media algorithms offer personalized content and can produce constructive experiences, their addictive nature poses significant risks, prompting legislative responses like the Stop Addictive Feeds Exploitation (SAFE) for Kids Act.  Considering the profound impact of these algorithms on young users’ physical and mental well-being, a critical question arises: How can we effectively balance the benefits of algorithm-driven engagement with the importance of protecting children from potential harm in the ever evolving digital landscape? The SAFE for Kids Act is a step in the right direction, inspiring critical reflection on the broader responsibility of parents and regulatory bodies to cultivate a digital environment that nurtures healthy online experiences for the next generation.

 

Destroying Defamation

The explosion of Fake News spread among social media sites is destroying a plaintiff’s ability to succeed in a defamation action. The recent proliferation of rushed journalism, online conspiracy theories, and the belief that most stories are, in fact, “Fake News” have created a desert of veracity. Widespread public skepticism about even the most mainstream social media reporting means plaintiffs need help convincing jurors that third parties believed any reported statement to be true. Such proof is necessary for a plaintiff to prove the elements of defamation.

Fake News Today

Fake News is any journalistic story that knowingly and intentionallyincludes untrue factual statements. Today, many speak of Fake News as a noun. There is no shortage of examples of Fake News and its impact.

      • Pizzagate: During the 2016 Presidential Election, Edgar Madison Welch, 28, read a story on (then) Facebook that Hilary Clinton was running a child trafficking ring out of the basement of a pizzeria. Welch, a self-described vigilante, shot open a locked door of the pizzeria with his AR-15.
      • A study by three MIT scholars found that false news stories spread faster on Twitter than true stories, with the former being 70% more likely to be retweeted than the latter.
      • During the defamation trial of Amber Heard and Johnny Depp, a considerable number of “Fake News” reports circulated across social media platforms, particularly TikTok, Twitter, and YouTube, attacking Ms. Heard at a disproportionality more significant rate than Mr. Depp.

 

What is Defamation?

To establish defamation, a plaintiff must show the defendant published a false assertion of fact that damages the plaintiff’s reputation. Hyperbolic language or other indications that a statement was not meant to be taken seriously are not actionable. Today’s understanding that everything on the Internet is susceptible to manipulation destroys defamation.

Because the factuality of a statement is a question of law, a plaintiff must first convince a judge that the offending statement is fact and not opinion. Courts often find that Internet and social media statements are hyperbole or opinion. If a plaintiff succeeds in persuading the judge, then the issue of whether the statement defamed the plaintiff heads to the jury. A jury faced with defamation must determine whether the statement of fact harmed the defendant’s reputation or livelihood to the extent that it caused the plaintiff to incur damages. The prevalence of Fake News creates another layer of difficulty for the Internet plaintiff, who must convince the jury that the statement was true.

Defamation’s Slow and Steady Erosion

Since the 1960s, the judiciary has limited plaintiffs’ ability to succeed in defamation claims. The decisions in Sullivan v. New York Times and Gertz increased the difficulty for public figures, and those with limited public figure status, to succeed by requiring them to prove actual malice against a defendant, a standard higher than the mere negligence standard allowed for individuals who are not of community interest.

The rise of Internet use, mainly social media, presents plaintiffs with yet another hurdle. Plaintiffs can only succeed if the challenged statement is fact, not opinion. However, judges find that statements made on the Internet are opinions and not points. The combined effect of Supreme Court limitations on proof and the increased belief that social media posts are mostly opinions has limited the plaintiff’s ability to succeed in a defamation claim.

Destroying Defamation

If the Supreme Court and social media have eroded defamation, Fake News has destroyed it. Today, convincing a jury that a false statement purporting to be fact has defamed a plaintiff is difficult given the dual issues of society’s objective mistrust of the media and the understanding that information on the Internet is generally opinion, not fact. Fake News sows confusion and makes it almost impossible for jurors to believe any statement has the credibility necessary to cause harm.

To be clear, in some instances, fake News is so intolerable that a jury will find for the plaintiffs. A Connecticut jury found conspiracy theorist Alex Jones liable for defamation based on his assertion that the government had faked the Sandy Hook shootings.

But often, plaintiffs are unsuccessful where the challenged language is conflated with untruths. Fox News successfully defended itself against a lawsuit claiming that it had aired false and deceptive content about the coronavirus, even though its reporting was, in fact, untrue.

Similarly, a federal judge dismissed a defamation case against Fox News for Tucker Carlson’s report that the plaintiff had extorted then-President Donald Trump. In reaching its conclusion, the judge observed that Carlson’s comments were rhetorical hyperbole and that the reasonable viewer “‘arrive[s] with the appropriate amount of skepticism.”‘ Reports of media success in defending against defamation claims further fuel media mistrust.

The current polarization caused by identity politics is furthering the tendency for Americans to mistrust the media. Sarah Palin announced that the goal of her recent defamation case against The New York Times was to reveal that the “lamestream media” publishes “fake news.”

If jurors believe that no reasonable person could credit a challenged statement as accurate, they cannot find that the statement the plaintiff asserts is defamatory caused harm. An essential element of defamation is that the defendant’s remarks damaged the plaintiff’s reputation. The large number of people who believe News is fake, the media’s rush to publish, and external attacks on credible journalism have created a problematization of truth among members of society. The potential for defamatory harm is minimal when every news story is questionable. Ultimately, the presence of Fake News is a blight on the tort of defamation and, like the credibility of present-day news organizations, will erode it to the point of irrelevance.

Is there any hope for a world without Fake News?

 

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.

Most trafficked animal-the Pangolin

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?

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.

 

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.

 

Image: Freepik.com

https://www.freepik.com/free-vector/flat-design-intellectual-property-concept-with-woman-laptop_10491685.htm#query=intellectual%20property&position=2&from_view=keyword”>Image by pikisuperstar

Social Media Addiction

Social Media was created as an educational and informational resource for American Citizens. Nonetheless, it has become a tool for AI bots and tech companies to predict our next moves by manipulating our minds on social media apps. Section 230 of the Communications Decency Act helped create the modern internet we use today. However, it was initially a 1996 law that regulated online pornography. Specifically, Section 230 provides legal immunity from liability for internet services and users for content posted online. Tech companies do not just want to advertise to social media users but instead want to predict a user’s next move. The process of these manipulative tactics used by social media apps has wreaked havoc on the human psyche and destroyed the social aspects of life by keeping people glued to a screen so big tech companies can profit off of it. 

Social media has changed a generation for the worse, causing depression and sometimes suicide, as tech designers manipulate social media users for profit. Social media companies for decades have been shielded from legal consequences for what happens on their platforms. However, due to recent studies and court cases, this may be able to change and allow for big tech social media companies to be held accountable. A former Facebook employee, France Haugen, a whistleblower to the Senate, stated not to trust Facebook as they knowingly pushed products that harm children and young adults to further profits, which Section 230 cannot sufficiently protect. Haugen further states that researchers at Instagram (a Facebook-owned Social Media App) knew their app was worsening teenagers’ body images and mental health, even as the company publicly downplayed these effects.

There is a California Bill, Social Media Platform Duty to Children Act, that aims to make tech firms liable for Social media Addiction in children; this would allow parents and guardians to use platforms that they believe addicted children in their care through advertising, push notifications and design features that promote compulsive use, particularly the continual consumption of harmful content on issues such as eating disorders and suicide. This bill would hold companies accountable regardless of whether they deliberately designed their products to be addictive.

Social Media addiction is a psychological, behavioral dependence on social media platforms such as Instagram, Snapchat, Facebook, TikTok, bereal, etc. Mental Disorders are defined as conditions that affect ones thinking, feeling, mood, and behaviors. Since the era of social media, especially from 2010 on, doctors and physicians have had a hard time diagnosing patients with social media addiction and mental disorders since they seem to go hand in hand. Social Media addiction has been seen to improve mood and boost health promotions with ads. However, at the same time, it can increase the negative aspects of activities that the youth (ages 13-21) take part in. Generation Z (“Zoomers”) are people born in the late 1990s to 2010s with an increased risk of social media addiction, which has been linked to depression. 

A study measured the Difficulties in Emotion Regulation Scale (“DEES”) and Experiences in Close Relationships (“ECR”) to characterize the addictive potential that social media communication applications have based on their measure of the brain. The first measure in the study was a six-item short scale consisting of DEES that was a 36-item, six-factor self-report measure of difficulties, assessing

  1. awareness of emotional responses,
  2. lack of clarity of emotional reactions,
  3. non-acceptance of emotional responses,
  4. limited access to emotion regulation strategies perceived as applicable,
  5. difficulties controlling impulses when experiencing negative emotions, and
  6. problems engaging in goal-directed behaviors when experiencing negative emotions. 

The second measure is ECR-SV which includes a twelve-item test evaluating adult attachment. The scale comprised two six-item subscales: anxiety and avoidance. Each item was rated on a 7-point scale ranging from 1 = strongly disagree to 7 = strongly agree, which is another measure of depression, anxiety, and mania were DSM-5. The results depict that scoring at least five of the nine items on the depression scale during the same two-week period classified depression. Scoring at least three of the six symptoms on the anxiety scale was to sort anxiety. Scoring at least three of the seven traits in the mania scale has classified mania. 

The objectives of these studies were to clarify that there is a high prevalence of social media addiction among college students and confirms statistically that there is a positive relationship between social media addiction and mental disorders by reviewing previous studies. 

The study illustrates that there are four leading causes of social media abuse: 1)The increase in depression symptoms have occurred in conjunction with the rise of smartphones since 2007, 2) Young people, especially Generation Z, spend less time connecting with friends, and they spend more time connecting with digital content. Generation Z is known for quickly losing focus at work or study because they spend much time watching other people’s lives in an age of information explosion. 3) An increase in depression is low self-esteem when they feel negative on Social Media compared to those who are more beautiful, more famous, and wealthier. Consequently, social media users might become less emotionally satisfied, making them feel socially isolated and depressed. 4) Studying pressure and increasing homework load may cause mental problems for students, therefore promoting the matching of social media addiction and psychiatric disorders. 

The popularity of the internet, smartphones, and social networking sites are unequivocally a part of modern life. Nevertheless, it has contributed to the rise of depressive and suicidal symptoms in young people. Shareholders of social media apps should be more aware of the effect their advertising has on its users. Congress should regulate social media as a public policy matter to prevent harm, such as depression or suicide among young people. The best the American people can do is shine a light on the companies that exploit and abuse their users, to the public and to congress, to hold them accountable as Haugen did. There is hope for the future as the number of bills surrounding the topic of social media in conjunction with mental health effects has increased since 2020. 

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. 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.

 

 

 

 

Jonesing For New Regulations of Internet Speech

From claims that the moon landing was faked to Area 51, the United States loves its conspiracy theories. In fact, a study sponsored by the University of Chicago found that more than half of Americans believe at least one conspiracy theory. While this is not a new phenomenon, the increasing use and reliance on social media has allowed misinformation and harmful ideas to spread with a level of ease that wasn’t possible even twenty years ago.

Individuals with a large platform can express an opinion that creates a harm to the people that are personally implicated in the ‘information’ being spread. Presently, a plaintiff’s best option to challenge harmful speech is through a claim for defamation. The inherent problem is that opinions are protected by the First Amendment and, thus, not actionable as defamation.

This leaves injured plaintiffs limited in their available remedies because statements in the context of the internet are more likely to be seen as an opinion. The internet has created a gap where we have injured plaintiffs and no available remedy. With this brave new world of communication, interaction, and the spread of information by anyone with a platform comes a need to ensure that injuries sustained by this speech will have legal recourse.

Recently, Alex Jones lost a defamation claim and was ordered to pay $965 million to the families of the Sandy Hook victims after claiming that the Sandy Hook shooting that occurred in 2012 was a “hoax.” Despite prevailing at trial, the statements that were the subject of the suit do not fit neatly into the well-established law of defamation, which makes reversal on appeal likely.

The elements of defamation require that the defendant publish a false statement purporting it to be true, which results in some harm to the plaintiff. However, just because a statement is false does not mean that the plaintiff can prove defamation because, as the Supreme Court has recognized, false statements still receive certain First Amendment protections. In Milkovich v. Lorain Journal Co., the Court held that “imaginative expression” and “loose, figurative, or hyperbolic language” is protected by the First Amendment.

The characterization of something as a “hoax” has been held by courts to fall into this category of protected speech. In Montgomery v. Risen, a software developer brought a defamation action against an author who made a statement claiming that plaintiff’s software was a “hoax.” The D.C. Circuit held that characterization of something as an “elaborate and dangerous hoax” is hyperbolic speech, which creates no basis for liability. This holding was mirrored by several courts including the District Court of Kansas in Yeagar v. National Public Radio, the District Court of Utah in Nunes v. Rushton, and the Superior Court of Delaware in Owens v. Lead Stories, LLC.

The other statements made by Alex Jones regarding Sandy Hook are also hyperbolic language. These statements include: “[i]t’s as phony as a $3 bill”, “I watched the footage, it looks like a drill”, and “my gut is… this is staged. And you know I’ve been saying the last few months, get ready for big mass shootings, and then magically, it happens.” While these statements are offensive and cruel to the suffering families, it is really difficult to characterize them as something objectively claimed to be true. ‘Phony’, ‘my gut is’, ‘looks like’, and ‘magically’ are qualifying the statement he is making as a subjective opinion based on his interpretation of the events that took place.

It is indisputable that the statements Alex Jones made caused harm to these families. They have been subjected to harassment, online abuse, and death threats from his followers. However, no matter how harmful these statements are, that does not make it defamation. Despite this, a reasonable jury was so appalled by this conduct that they found for the plaintiffs. This is essentially reverse jury nullification. They decided that Jones was culpable and should be held legally responsible even if there is no adequate basis for liability.

The jury’s determination demonstrates that current legal remedies are inadequate to regulate potentially harmful speech that can spread like wildfire on the internet. The influence that a person like Alex Jones has over his followers establishes a need for new or updated laws that hold public figures to a higher standard even when they are expressing their opinion.

A possible starting point for regulating harmful internet speech at a federal level might be through the commerce clause, which allows Congress to regulate instrumentalities of commerce. The internet, by its design, is an instrumentality of interstate commerce by enabling for the communication of ideas across state lines.

Further, the Federal Anti-Riot Act, which was passed in 1968 to suppress civil rights protestors might be an existing law that can serve this purpose. This law makes it a felony to use a facility of interstate commerce to (1) incite a riot; or (1) to organize, promote, encourage, participate in, or carry on a riot. Further, the act defines riot as:

 [A] public disturbance involving (1) an act or acts of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result in, damage or injury to the property of any other person or to the person of any other individual or (2) a threat or threats of the commission of an act or acts of violence by one or more persons part of an assemblage of three or more persons having, individually or collectively, the ability of immediate execution of such threat or threats, where the performance of the threatened act or acts of violence would constitute a clear and present danger of, or would result in, damage or injury to the property of any other person or to the person of any other individual.

Under this definition, we might have a basis for holding Alex Jones accountable for organizing, promoting, or encouraging a riot through a facility (the internet) of interstate commerce. The acts of his followers in harassing the families of the Sandy Hook victims might constitute a public disturbance within this definition because it “result[ed] in, damage or injury… to the person.” While this demonstrates one potential avenue of regulating harmful internet speech, new laws might also need to be drafted to meet the evolving function of social media.

In the era of the internet, public figures have an unprecedented ability to spread misinformation and incite lawlessness. This is true even if their statements would typically constitute an opinion because the internet makes it easier for groups to form that can act on these ideas. Thus, in this internet age, it is crucial that we develop a means to regulate the spread of misinformation that has the potential to harm individual people and the general public.

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