social media

False Assumptions Behind the Current Drive to Regulate Social Media

In the early days of the Internet, citing concerns about pedophiles and hackers, parents would worry about their children’s engagement on unfamiliar platforms. Now, those same parents have Facebook accounts and get their news from Twitter. However, one look at a newspaper shows op-eds aplenty castigating the platforms that host an ever-growing share of our social lives.

The Federal Election Commission Is Bad Enough

Chris Hughes, a founder of Facebook, has proposed Congress create a new agency to “create guidelines for acceptable speech on social media.”

As Hughes notes, this proposal “may seem un-American.” That’s because it is. At the very least, Hughes’ plan contravenes the past fifty years of American constitutional jurisprudence, and the deeply held values that undergird it. Let’s examine his case for such a momentous change.

Keep Government Away From Twitter

Twitter recently re-activated Jesse Kelly’s account after telling him that he was permanently banned from the platform. The social media giant informed Kelly, a conservative commentator, that his account was permanently suspended “due to multiple or repeat violations of the Twitter rules.” Conservative pundits, journalists, and politicians criticized Twitter’s decision to ban Kelly, with some alleging that Kelly’s ban was the latest example of perceived anti-conservative bias in Silicon Valley.

Thrown in Jail for Surfing the Web

Lester Packingham beat a parking ticket and celebrated on his Facebook page by proclaiming, “God is good! … Praise be to GOD, WOW! Thanks JESUS!” For this post, he was sentenced to prison—because he was a registered sex offender and a North Carolina statute bans such people from accessing a wide variety of websites. (Packingham took “indecent liberties with a minor” when he was 21, receiving a suspended sentence and probation, which he had completed.)

Secret Policy to Ignore Social Media? Not So Fast

There is a supposed “secret policy” that prevented consular and immigration officers from checking Tashfeen Malik’s social media accounts where she wrote about jihad (possibly under a pseudonym or in personal messages).  If her statements were discovered then she would have been denied a visa, preventing the atrocity.  This is getting a lot of attention on blogs and Secretary Jeh Johnson responded by saying that there are certain limits that probably apply to personal messages although he’s unclear. 

After following this controversy, I heard from six different immigration attorneys that there is no such secret policy and their clients’ routinely have their social media accounts checked by immigration officials – or at least have heard of it happening. 

Senate Intelligence Committee Ends Efforts To Turn Social Media Companies Into Government Spies

Earlier this year, Senator Diane Feinstein (D-CA) inserted language into the annual Intelligence Authorization bill that would have forced social media companies like Twitter to act as de facto law enforcement agents and censors of the users of their service. The language in question read as follows:

SEC. 603. Requirement to report terrorist activities and the unlawful distribution of information relating to explosives.

(a) Duty To report.—Whoever, while engaged in providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce, obtains actual knowledge of any terrorist activity, including the facts or circumstances described in subsection (c) shall, as soon as reasonably possible, provide to the appropriate authorities the facts or circumstances of the alleged terrorist activities.

(b) Attorney General determination.—The Attorney General shall determine the appropriate authorities under subsection (a).

(c) Facts or circumstances.—The facts or circumstances described in this subsection, include any facts or circumstances from which there is an apparent violation of section 842(p) of title 18, United States Code, that involves distribution of information relating to explosives, destructive devices, and weapons of mass destruction.

(d) Protection of privacy.—Nothing in this section may be construed to require an electronic communication service provider or a remote computing service provider—

(1) to monitor any user, subscriber, or customer of that provider; or

(2) to monitor the content of any communication of any person described in paragraph (1).

In a social media context, what constitutes “terrorist activity”? And how would a social media company “obtain knowledge” of undefined “terrorist activity” absent active monitoring of all of is users?

Feinstein’s proposal was constitutionally dubious and wildly impractical. It also generated strong opposition from social media and tech companies, the privacy and civil liberties community, and some of her own Senate colleagues.

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