Privacy on Social Media?

Privacy on Social Media - Law of Mass Communications

History of Legal Issue

• During the 1990s, the first noticeable privacy laws were emerging. The Electronic Privacy Information Center (OPIC) was established to protect the privacy of Internet users and resolve issues regarding civil liberties.

• In the 2000s came the California Online Privacy Protection Act of 2003. This became a law on July 1, 2004. It was concerning education and student information. It stated that whatever information was gathered, it had to inform its user. The user also needed to have the option to edit the information provided. Even though it seems far away from privacy on social media, this is where the idea of privacy on the Internet began. In the end, everything starts with an idea.

• In the present day, The US legislators are considering “The Right to Be Forgotten,” and its possible inclusion in the United States’ legislative system, and its effects on privacy.

Established by the European Union, “The Right to Be Forgotten,” is the idea for people to "determine the development of their life in an autonomous way, without being perpetually or periodically stigmatized as a consequence of a specific action performed in the past.”

The legal “issue” of privacy became famous with the massive growth of the World Wide Web thanks to more affordable computers, faster Internet access, and its attractive social media platforms. According to Sage Journals, “In 2015, the Pew Research Center reported that 90% of young American adults aged 18–29 use social media, compared to 12% in 2005, an increase of 750%.”

In order to be able to grasp the information provided, I will only use Facebook as an example of how issues of privacy started to shift to social media and the Internet. At first, Facebook was a place to share ideas with a small group of people. With time, many of the posts were automatically made public. This is how users were forced to share their private information with the public, and how the public started to have easy access to delicateinformation about others. Finally, that’s how privacy cases on the Internet and social media started to appear in court.

Where does the law stand?

Cases like Katz v. United States set the mood and tone for the expectation of privacy. Today, the “Katz Test” exists to help extend our right to privacy to other communication systems like the Internet and social media. In an article by the New York Journal, it states that:

“The New York Court of Appeals has issued an unequivocal declaration that even materials deemed ‘private by a Facebook user are subject to discovery, if they contain material relevant to the issues in controversy in litigation.”

Therefore, many of the parameters that involve privacy and social media are being set “as we go.” It is difficult to present a clear and definite idea of where this law stands. All we know are facts like the following:

1. Freedom of speech is still protected, but there is more freedom on the Internet because not everyone with an opinion can be found. For example, you will find many more racism on the web than you will on television or on the streets.

2. Private social media platforms like Facebook are not required to perform like a government agency would. Therefore, the First Amendment does not apply to what Facebook chooses to do. Yet, many cases allow Facebook posts to be used in court. This is exactly where there is a gray area, and the law is not clearly defined, especially because Facebook makes up a large portion of expression on the Internet.

3. One case that I will discuss later, placed a boundary to the expectations of privacy one could have on the web. This creates expectations that courts will take action to protect privacy on the Internet.

4. Information found on Google or social media can be used in court, but it will be on a case-by-case basis.

5. Privacy settings on social media accounts are not completely private, because all information is stored in your account and on the “cloud.”

6. Once you publish something on social media, the content is no longer yours, especially in the sense that it can be manipulated or interpreted in a different way.

Case I

BLAND V. ROBERTS, No. 12-1671 (4th Cir. Sept. 18, 2013)

“Employees of the Sheriff’s Department were fired for liking a political opponent of the current Sheriff.” Then, The Court of Appeals said that a “like” is still “speech,” so it is protected by the First Amendment. This is another gray area involving privacy, because your social media account should be a “personal” matter and should not be respected. But, what if your opinions are in conflict with your job? I think this case is important because it’s showing us that we need to adapt to this new era, and understand that our private space is smaller today. I believe we need to filter what we post and only express opinions when your opinion is all you represent, not when it contradicts the image of the company you work for. Reporters or professionals on television are a great example of this:

Current Event I - Jemele Hill

Jemele Hill, a host for SportsCenter on ESPN, was reprimanded her for several posts she made using her Twitter account. She posted:

“Donald Trump is a white supremacist who has largely surrounded himself w/other white supremacists.” Later added another comment saying: “Trump is the most ignorant, offensive president of my lifetime. His rise is a direct result of white supremacy. Period.” And a last post saying: “He is unqualified and unfit to be president. He is not a leader. And if he were not white, he never would have been elected.” ESPN was clear about the fact that this is not their take on the president, and that they are not in agreement with Jemele Hill’s comments.

I used this current event as a way to show how I believe speech matters on social media. A Tweet can be used against someone without violating the privacy of the user; because after all, your words represent you. I think that her comments matter because she, in part, represents ESPN, and her comments should be kept on a professional note.

Case II

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)

“A person has a constitutionally protected reasonable expectation of privacy when they have both a subjective expectation of privacy and that expectation is one that society recognizes as reasonable.”

This case brings me to the question: “what is the reasonable expectation of privacy if there is no media literacy?” The education system does not provide courses for students or adults that are new to social media to understand the relevance of a social media profile. Yet, many social media cases are part of the court system today. Many people start by filling out the information to create a profile, not understanding the impact it could have in their lives. Facebook clearly doesn't warn you that everything could be used in court if there is a subpoena. I would consider this to be a gap in the law and in the education system. If a person is not well informed, how can they be accountable for it? Some people might post on social media thinking no one will read, similar to a diary.

What I Would Change

Therefore, one of the things I would change about this law would be to deal more with education than law itself. The law should require “express” courses or tests on media literacy before creating an account on any social media platform. This reminds me of the cigarette packaging that comes with pictures of deteriorated lungs that have been diagnosed with cancer. Companies started telling the public what cigarettes could do to the lungs before anyone could open the box. In the same way, all social media platforms should be required to inform users of the risks in an effective way. Effective means that the users take the time to learn the information, and that there is no doubt that they understand the information. An analogy of this would be the “captcha.” You are required to enter a code on certain websites to let the website know that you are a human and not a computer. The education system of the United States should also be modified to today’s society and issues. Media literacy is a fairly new term and should be considered of extreme importance in high schools, and perhaps even in middle schools. There should be courses that include information such as What is Social Media?

• Listing the types of social media platforms

• What they were intended to do,

• The collateral “damage” involved (Facebook Depression, addiction).

• How to avoid or deal with Facebook Depression and its other possible effects.

• Also, self-esteem and happiness courses.

I remember that UF offered a trip to Italy last semester to the UF Journalism and Communications students. There, they offered a coursed called “Happiness.” This is where I got the idea to include courses like this that will motivate students and prevent them from being affected by the negative sides of social media. I believe that by studying this area, people will be able to use social media and not let social media use them. Many motivational speakers are criticizing the effects of social media platforms in young adults, but no one is focusing on how to fix it. Going to a psychologist is not the solution. I believe in solving the problems by investing in education: a kind of education that teaches students how to love themselves and how to give value to their lives, regardless of the problems they experience at home.

To conclude, this case brought new parameters to measure what our right to privacy is regarding intangible communication systems like social media. But, I don’t believe there is clarity in its definition yet.

Case III

UNITED STATES V. HAMBRICK, 2000 WL 1062039 (4th Cir. Aug. 3 2000)

On March 14, 1998, a police officer signed in to a website with a false identity to investigate possible sex offenders. The police officer found a man who “sought to entice a fourteen-year-old boy to leave New Hampshire” and move in with him. The police officer was able to get a subpoena to find the offender’s exact location through the Internet provider. The court allowed the police officer to gather the information to arrest the offender.

This case is important because the government shows that the well-being of children in the United States comes before privacy on the Internet. There should be no privacy for sexual offenders. I think that this application of the law using information form the internet is outstanding and it helps society. The idea that the Constitution does not protect any kind of sexual abuse is admirable. I don't think it would be as easy as this to find the location sexual offenders if there was more protection of privacy on the internet.

What I would Change

There should be a request to the government to completely eliminate sex or sexual abuse on any level of the web. Although these websites circulate unimaginable amounts of money, they should be eliminated by the government. The government should have the power to issue a warrant to first, search for the locations of the publishers, and then reveal their identities. There is a lot of damage produced by these websites with human trafficking and child pornography, so the law should help stop all of it. If there is someone who can create these hidden websites, then there should be someone with the ability to find them. It’s a matter of having enough desire to change everything.

Case IV

U.S. V. MEREGLIDO, 2012 WL 3264501, (2012)

This case was a grand jury investigation where the government requested a search warrant for the contents of the defendant’s Facebook account. The Defendant felt his Fourth Amendment rights were being violated. The government obtained information from the defendant’s “friend” on Facebook. This way, it is not a violation of privacy or any individual right.

“When a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment.” The physical world of privacy, as we know it, is translating into the digital world. Not only are books turning into ebooks, newspapers becoming online articles; but our own lives are now part of what is called “the cloud”. Facebook stores all the information a user enters: including activities, messages, likes, pictures, and videos. There is an option to download all of the data stored from your personal account. This case shows how important it is to filter the information you are providing to the social media platforms. This is an important case in determining the future of privacy overall. We will probably see many laws being adapted to the digital world preventing these options to download stored information that was thought to be deleted by the user. These laws that will be clear in their descriptions and parameters when a “Facebook case” comes around. A change in users’ knowledge of these “downloadable” options is crucial to the protection of privacy.

Case V

MUNSTER V. GROCE, 2005 WL 1364662, (Ind.App., June 8, 2005)

Court admonishes Plaintiff for not using Google to find a defendant:

In this case, it’s clear that, if you don’t use Google or social media to search for information, then your work is not being done correctly. My question is: How accurate is the information on the web? I recently checked information about myself during the week of the Module that required students to find public records. I found that some of the information was correct. Information such as my family members and my age. There was an address that was published as being my current address, when in reality, it was from many years ago. I don’t think that the court should rely on Facebook or Google searches because many people create “fake” accounts. I have created accounts on different mobile Apps and websites that will only let you download them if you give them your information. This is where many people, including myself, don’t enter their correct date of birth or mailing address. Many times, when you search for people, dating apps are the first to appear. This is the exact place where people avoid adding real information about themselves. I disagree with the outcome of this case, because even if we are in a digital world today, any search you make will not be 100% accurate; especially if it’s information that will be used in court.

I believe that providing public records through a government website is not a violation of privacy; requesting information from private platforms and offering outdated information about an individual: is a violation of privacy to me.

What I Would Change

The courts should only rely on public records or wait until a new “universal” website is created, where the information provided can be certified and confirmed as being “current.” This way, there will be no doubt about the validity of your Internet search, and the court cannot admonish you because it will be information retrieved from a website that is accepted by the government and the court.

Current Event II - Effects of Speech on Privacy

Facebook decided to change its free speech laws or “content moderation rules” when allowing or removing posts from users. Before this announcement, Facebook had a set of rules about what people could post regarding “graphic violence, hate speech, or child exploitation.” The problem is that there was nothing clear or public about how they decided which contents would stay, and which ones would be removed. There was no link or public statement declaring what counts as these offenses. According to the article: “Facebook still doesn’t have a meaningful vehicle for users to directly comment on the policies that are governing their online speech, and the speech they see on the platform. As a result, Facebook is still not truly accountable to all of its users.”

All we know is that Facebook will change this and will be more “strict” with its rules, but there isn’t a website to see how they will filter these posts. Moderators who work for Facebook decide;

and if you complain about the removal of a post, it will just go through the system of the same

moderators again. This makes users even more confused about what they are allowed to post.

• If Facebook is a private platform, then its content should not be considered in court cases.

• If Facebook is not accountable for its users, users shouldn’t be accountable for their posts.

• If there isn’t a clear regulation of speech through Facebook, the privacy of any user is in danger, because anyone can post anything about anyone.

What I Would Change

Make Facebook accountable, this way they will feel more responsible and offer better guidelines. As a result, privacy of users will be more protected through “speech” or posts from other users.

In The Future…

Many more cases will define the idea of privacy in social media platforms.

1. The government will fully incorporate the Internet and social media platforms as part of the First and Fourth Amendments.

2. There will be more regulation and more privacy options offered by websites.

3. The privacy policy of social media platforms will be interactive. Users will be able to learn the information about privacy in videos or interactive content that will then test them before they create an account. This way there is a bigger chance that users will retain the information once they create their profile.

4. Media Literacy will grow as a concept and will be installed in the education system.

5. Media Literacy will bring less cases of privacy and defamation to courts. Especially cases that never get to reach the court because there is not enough evidence of violation of privacy.

6. Social media platforms will have more accountability for its users.

7. More information from the web about individuals will be used in court.

References

Can Social Media Affect Your Legal Case? (2018, March 30). Retrieved from https://www.belllawfirm.com/2018/02/20/social-media-legal-case/

Court of Appeals Declares Facebook 'Private Data' and Other Social Media Subject to Discovery | New York Law Journal. (2018, February 26). Retrieved from https://www.law.com/newyorklawjournal/2018/02/26/court-of-appeals-declares-facebook-private-data-and-other-social-media-subject-to-discovery/

Engineering Sociality in a Culture of Connectivity - Oxford Scholarship. (2014, November 4). Retrieved from http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199970773.001.0001/acprof-9780199970773-chapter-1

The History of Data Privacy in Social Data and its Milestones. (2015, February 26). Retrieved from http://blog.datasift.com/2015/02/26/the-history-of-data-privacy-in-social-data-and-its-milestones/

Opinion | Facebook Released Its Content Moderation Rules. Now What? (2018, June 9). Retrieved from https://www.nytimes.com/2018/04/26/opinion/facebook-content-moderation-rules.html?%20rref=collection%2Ftimestopic%2FFreedom%20of%20Speech%20and%20%20Expression&action=click&contentCollection=timestopics®ion=stream&module=stream_%20unit&version=latest&contentPlacement=4&pgtype=collection

Privacy and Social Media | Business Law Section. (2014, January 3). Retrieved from https://www.americanbar.org/publications/blt/2014/01/03a_claypoole.html

Social Media Privacy Law Developments - Restricting Employer Access - FindLaw. (n.d.). Retrieved from https://technology.findlaw.com/modern-law-practice/social-media-privacy-law-developments-restricting-employer-acce.html

Social Media Users’ Legal Consciousness About Privacy - Katharine Sarikakis, Lisa Winter, 2017. (2017, February 1). Retrieved from http://journals.sagepub.com/stoken/default+domain/cem2tUGgXY37eEjBqIfA/full

Social Media, Privacy and Scams - 3 Recent Cases That Highlight the Need to Take Care. (2015, August 8). Retrieved from https://www.socialmediatoday.com/news/social-media-privacy-and-scams-3-recent-cases-that-highlight-the-need-to/454720/

Staff, V. (n.d.). ESPN Reprimands Jemele Hill For Calling Trump ‘White Supremacist’. Retrieved from https://variety.com/2017/tv/news/espn-jemele-hill-trumo-white-supremacist-1202556517/

This Court Case Is Bad News for Social Media Privacy. (n.d.). Retrieved from https://www.bloomberg.com/view/articles/2018-04-05/facebook-cambridge-analytica-and-a-new-free-speech-ruling