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Whitelist for Thee, but Not for Me: Facebook File Scandals and Section 230 Solutions

November 6, 2021
Data, Economics, Privacy, Social Media, Social Welfare, Uncategorized

Warren Sexson, MJLST Staffer

When I was in 7^th grade, I convinced my parents to let me get my first social media account. Back in the stone age, that phrase was synonymous with Facebook. I never thought too much of how growing up in the digital age affected me, but looking back, it is easy to see the cultural red flags. It came as no surprise to me when, this fall, the Wall Street Journal broke what has been dubbed “The Facebook Files,” and in them found an internal study from the company showing Instagram is toxic to teen girls. While tragic, this conclusion is something many Gen-Zers and late-Millennials have known for years. However, in the “Facebook Files” there is another, perhaps even more jarring, finding: Facebook exempts many celebrities and elite influencers from its rules of conduct. This revelation demands a discussion of the legal troubles the company may find itself in and the proposed solutions to the “whitelisting” problem.

The Wall Street Journal’s reporting describes an internal process by Facebook called “whitelisting” in which the company “exempted high-profile users from some or all of its rules, according to company documents . . . .” This includes individuals from a wide range of industries and political viewpoints, from Soccer mega star Neymar, to Elizabeth Warren, and Donald Trump (prior to January 6^th). The practice put the tech giant in legal jeopardy after a whistleblower, later identified as Frances Haugen, submitted a whistleblower complaint with the Securities and Exchange Commission (SEC) that Facebook has “violated U.S. securities laws by making material misrepresentations and omissions in statements to investors and prospective investors . . . .” See 17 CFR § 240.14a-9 (enforcement provision on false or misleading statements to investors). Mark Zuckerberg himself has made statements regarding Facebook’s neutral application of standards that are at direct odds with the Facebook Files. Regardless of the potential SEC investigation, the whitelist has opened up the conversation regarding the need for serious reform in the big tech arena to make sure no company can make lists of privileged users again. All of the potential solutions deal with 47 U.S.C. § 230, known colloquially as “section 230.”

Section 230 allows big tech companies to censor content while still being treated as a platform instead of a publisher (where they would incur liability for what is on their website). Specifically, § 230(c)(2)(A) provides that no “interactive computer service” shall be held liable for taking action in good faith to restrict “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable [content] . . . .” It is the last phrase, “otherwise objectionable,” that tech companies have used as justification for removing “hate speech” or “misinformation” from their platform without incurring publisher like liability. The desire to police such speech has led Facebook to develop stringent platform rules which has in turn created the need for whitelisting. This brings us to our first proposal, eliminating the phrase “otherwise objectionable” from section 230 itself. The proposed “Stop the Censorship Act of 2020” brought by Republican Paul Gosar of Arizona does just that. Proponents argue that it would force tech companies to be neutral or lose liability protections. Thus, no big tech company would ever create standards stringent enough to require a “whitelist” or an exempted class, because the standard is near to First Amendment protections—problem solved! However, the current governing majority has serious concerns about forced neutrality, which would ignore problems of misinformation or the mental health effects of social media in the aftermath of January 6^th.

Elizabeth Warren, similar to a recent proposal in the House Judiciary Committee, takes a different approach: breaking up big tech. Warren proposes passing legislation to limit big tech companies in competing with small businesses who use the platform and reversing/blocking mergers, such as Facebook purchasing Instagram. Her plan doesn’t necessarily stop companies from having whitelists, but it does limit the power held by Facebook and others which could in turn, make them think twice before unevenly applying the rules. Furthermore, Warren has called for regulators to use “every tool in the toolbox,” in regard to Facebook.

Third, some have claimed that Google, Facebook, and Twitter have crossed the line under existing legal doctrines to become state actors. So, the argument goes, government cannot “induce” or “encourage” private persons to do what the government cannot. See Norwood v. Harrison, 413 U.S. 455, 465 (1973). Since some in Congress have warned big tech executives to restrict what they see as bad content, the government has essentially co-opted the hand of industry to block out constitutionally protected speech. See Railway Employee’s Department v. Hanson, 351 U.S. 225 (1956) (finding state action despite no actual mandate by the government for action). If the Supreme Court were to adopt this reasoning, Facebook may be forced to adopt a First Amendment centric approach since the current hate speech and misinformation rules would be state action; whitelists would no longer be needed since companies would be blocked from policing fringe content. Finally, the perfect solution! The Court can act where Congress cannot agree. I am skeptical of this approach—needless to say, such a monumental decision would completely shift the nature of social media. While Justice Thomas has hinted at his openness to this argument, it is unclear if the other justices will follow suit.

All in all, Congress and the Court have tools at their disposal to combat the disturbing actions taken by Facebook. Outside of potential SEC violations, Section 230 is a complicated but necessary issue Congress must confront in the coming months. “The Facebook Files” have exposed the need for systemic change in social media. What I once used to use to play Farmville, has become a machine that has rules for me, but not for thee.

21st Century Problem: Authentication of Prisoner Facebook Status Updates

March 6, 2013
Criminal Law, Internet, Social Media

by Eric Maloney, UMN Law Student, MJLST Staff

Facebook has become a part of everyday life for people around the world. According to Mark Zuckerberg and Co., over one billion people (yes, with a “B”) are active on Facebook every month, with an average of more than 600 million active users every day in December 2012. Disregarding bogus or duplicate accounts, that means roughly one-seventh of the entire human population is active on Facebook every month (with the world population currently sitting somewhere in the neighborhood of seven billion people).

Apparently, Facebook has become so commonplace and ingrained in the daily routine of some that they feel the need to use the social networking service from the privacy of their prison cells.

A Harlem gang member named Devin Parsons has decided to cooperate with the government against fellow members of his gang, and is currently incarcerated while trial is pending. Instead of having the usual prison contraband smuggled in, he obtained a mobile phone and used it to post Facebook status updates under an assumed name. According to Trial Judge William H. Pauley III:

In some posts, Parsons reflected on his life in jail:

“everybody wanna live but don’t wanna die”;
“Life is crazy thay only miss yu ifyu dead or in jail”; and
“G.o.n.e”

In others, Parsons posted about his cooperation:

“I’m not tellin on nobody from HARLEM but I can give up some bx n****s that got bodys”; and
“be home sooner then yaH hereing 101[.]”

While not exactly “Letter from Birmingham Jail,” Parsons was surprisingly bold about disclosing the fact of his cooperation and about the risk of getting caught with a banned cell phone by the prison administration. The gang against which Parsons is testifying is charged with multiple counts of narcotics trafficking and murder, among other things.

One of the defendants in the case, Melvin Colon, sought to compel the disclosure of these postings under the Brady rule, which requires the government to release evidence to the defense before trial if the evidence is favorable to the defendant. Judge Pauley held that the government was not obligated to turn these postings over to Colon; for various reasons, the government was never in actual possession of the Facebook statuses and therefore had no duty to disclose under Brady.

This case highlights the continually growing relevance that Facebook and other social media data has in legal proceedings. In fact, this is not even the first ruling about Facebook in this case; the defendant Colon had earlier moved to suppress his own Facebook postings which the prosecution sought to introduce. Judge Pauley denied this motion as well, holding that Colon’s sharing of the postings with his Facebook “friends” meant he lacked a reasonable expectation of privacy in them.

A background issue in this case was the idea of authenticity of the Facebook poster; because Parsons was posting under a fake name, both sides were unaware of his conduct until after the account had already been deactivated. While not contested here, ensuring that the Facebook information originated from the user is an increasingly important evidentiary consideration as more and more of this data is used in both civil and criminal contexts.

Professor Ira P. Robbins laid out a possible framework for authenticating social networking evidence in his Minnesota Journal of Law, Science & Technology article “Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence.” While voicing significant concerns about the current lack of a required nexus between the online content and its real-life poster, he proposed detailed admissions criteria for social network postings. He offered several factors to be examined by judges in making rulings about such data, including who owns the account, how secure the account is, and how / when the post in question was created.

As Facebook and other social networking information becomes increasingly important to the outcomes of legal cases, a framework like this is essential to bring our procedures in line with the nature of 21st century evidence and to ensure our system continues to meet Due Process standards. Digital evidence is largely unexplored territory for jurists and scholars alike, and it’s my hope that evidentiary standards like those proposed by Professor Robbins are seriously considered by the legal community.

Time for a New Approach to Cyber Security?

February 18, 2013
Cyber Security, Internet, Law Enforecement

by Kenzie Johnson, UMN Law Student, MJLST Managing Editor

The recent announcements by several large news outlets including the New York Times, Washington Post, Bloomberg News, and the Wall Street Journal reporting that they have been the victims of cyber-attacks have yet again brought cyber security into the news. These attacks reportedly all originated in China and were aimed at monitoring news reporting of Chinese issues. In particular, the New York Times announced that Chinese hackers persistently attacked their servers for a period of four months and obtained passwords for reporters and other Times employees. The Times reported that the commencement of the attack coincided with a story it published regarding mass amounts of wealth accumulated by the family of Chinese Prime Minister Wen Jiabao.

It is not only western news outlets that are the targets of recent cyber-attacks. Within the past weeks, the United States Department of Energy and Federal Reserve both announced that hackers had recently penetrated their servers and acquired sensitive information.

This string of high-profile cyber-attacks raises the need for an improved legal and response structure to deal with the growing threat of cyber-attacks. In the forthcoming Winter 2013 issue of Minnesota Journal of Law, Science, and Technology, Susan W. Brenner discusses these issues in an article entitled “Cyber-Threats and the Limits of Bureaucratic Control.” Brenner discusses the nature, causes, and consequences of cyber-threats if left unchecked. Brenner also analyzes alternative approaches to the United States’ current cyber-threat control regime, criticizes current proposals for improvements to the current regime, and proposes alternative approaches. As illustrated by these recent cyber-attacks, analysis of these issues is becoming more important to protect sensitive government data as well as private entities from cyber-threats.

Six Strikes and You’re Out: Can a New RIAA Policy Solve Old Online File Sharing Problems?

December 4, 2012
Intellectual Property, Internet, Social Media

by Ian Birrell

Since at least 1999 when Napster was originally launched, internet piracy, or downloading copyrighted materials (especially songs, videos, and games,) has been a contentious activity. The Recording Industry Association of America (RIAA) has historically taken a very public and aggressive stance by finding individuals associated with IP addresses matching those where this “file sharing” is coming from. After finding such a target, the RIAA would send a letter demanding a settlement for thousands of dollars or threatening litigation, risky and expensive to the target, despite a potentially very small monetary value of downloaded material. The RIAA suits, which have continued for a number of years, include a number of well publicized absurd claims.

This journal has written on the RIAA policies before. In 2008, we published a student note by Daniel Reynolds named The RIAA Litigation War on File Sharing and Alternatives more Compatible with Public Morality. Reynolds argued then that the policies were ineffective and unconscionable and urged change.

Change is coming. Later this year, after a number of years in development, a number of major carriers are planning to institute a “six-strikes” plan. This is a voluntary agreement between ISPs and certain content providers (the government is not involved,) and is made to target peer-to-peer downloading. The plan has a notice phase, an acknowledgement phase, and a mitigation phase. Under the plan, a private carrier – say, Time Warner – will first notify a user that there has been an allegation of illegal copyright activity, then force a user who may be infringing (and who may or may not own the account) to acknowledge having received such notices, before the user finally suffers consequences. These consequences can include throttling of internet speed or having popular websites blocked.

Proponents point to a few positives under this proposal, including the user’s right to appeal to an independent arbitrator (for a $35 fee.) Additionally, though lawsuits are still permitted by copyright holders, the hope is that the system will educate the public about copyright infringement and that, on notice that their behavior is illegal, infringement will at least slow down. Ron Wheeler, a Senior VP at Fox, said that, “This system is not designed to produce lawsuits–it’s designed to produce education.”

Unfortunately, a lack of education may not be the underlying problem. Reynolds noted that, even in 2004, awareness of the (il)legality of file sharing was widespread. And increasing awareness may not sharply decrease infringement. Critics further note that, despite the safeguards, penalties are ultimately based on accusations rather than definite findings of infringement. If the system ultimately works, though, it may be worth the headaches for both sides. Consumers will not be able to infringe (as much) but the public will also not suffer suits against twelve-year-olds for sharing music.

Growth of Social Media Outpaces Traditional Evidence Rules

November 14, 2012
Internet, Litigation, Social Media

by Sabrina Ly

Evidence from social networking websites is increasingly involved in a litany of litigation. Although the widespread use of social media can lead to increased litigation, as well as increasing the cost of litigation, use of social media has assisted lawyers and police officers in proving cases and solving crimes. In New Jersey, for example, two teenage brothers were arrested and charged with murder of a twelve year-old girl. What led to the two teenagers’ arrest was evidence left behind in their homes along with a Facebook post that made their mother suspicious enough to call the police. In another case, Antonio Frasion Jenkins Jr. had charges brought against him by an officer for making terroristic threats to benefit his gang. Jenkins posted a description of his tattoo on Facebook which stated: “My tattoo iz a pig get’n his brains blew out.” Pig is considered a derogatory term for a police officer.The tattoo also had the officer’s misspelled name and his badge number. The officer who is a part of the gang investigation team saw the Facebook post and immediately filed charges against Jenkins as he interpreted the tattoo as a direct threat against him and his family. These are two of the many situations in which social networking websites have been used as evidence to bring charges against or locate an individual.

The myriad of charges brought against an individual given evidence found on their social networking websites is the basis for Ira P. Robbin’s article “Writings on the Wall: The Need for an Author-Centric Approach to the Authentication of Social-Networking Evidence” published in Volume 13.1 of the Minnesota Journal of Law Science and Technology. Robbins begins by discussing the varying ways in which social networking websites have been used as evidence in personal injury and criminal matters. Specifically, Twitter, Facebook and Myspace postings have been deemed discoverable if relevant to the issue and admissible only if properly authenticated by the Federal Rules of Evidence. However, courts across the country have grappled with the evidentiary questions that are presented by social media. In some states, the court admitted the evidence given distinctive characteristics that created a nexus between the posting on the website and the owner of the account. In other states, the court found the proof of the nexus was lacking. Regardless, overall concerns of potential hackers or fictitious accounts created by a third-party posing as someone else create problems of authentication.

Robbins argues that the traditional Federal Rules of Evidence do not adapt well to evidence from social networking websites. Accordingly, Robbins proposes the courts adopt an author-centric authentication process that focuses on the author of the post and not just the owner of the account. Failing to adopt an authentication method for evidence obtained on social networking websites may create consequences that could harm the values and legitimacy of the judicial process. The ability to manipulate or fake a posting creates unreliable evidence that would not only undermine the ability of the fact-finder to determine its credibility but would also unfairly prejudice the party in which the evidence is presented against.

Technology is an area of law that is rapidly evolving and, as a result, has made some traditional laws antiquated. In order to keep pace with these changes, legislators and lawmakers must constantly reexamine traditional laws in order to promote and ensure fairness and accuracy in the judicial process. Robbins has raised an important issue regarding authentication of evidence in the technological world, but as it stands there is much work to be done as technological advances outpace the reformation of traditional laws that govern it.

Censorship Remains Viable in China– but for How Long?

November 6, 2012
Internet, Privacy

by Greg Singer, UMN Law Student, MJLST Managing Editor

In the west, perhaps no right is held in higher regard than the freedom of speech. It is almost universally agreed that a person has the inherent right to speak their mind as he or she pleases, without fear of censorship or reprisal by the state. Yet for the more than 1.3 billion currently residing in what is one of the oldest civilizations on the planet, such a concept is either unknown or wholly unreflective of the reality they live in.

Despite the exploding amount of internet users in China (from 200 million users in 2007 to over 530 million by the end of the first half of 2012, more than the entire population of North America), the Chinese Government has remained implausibly effective at banishing almost all traces of dissenting thought from the wires. A recent New York Times article detailing the fabulous wealth of the Chinese Premier Wen Jiabao and his family members (at least $2.7 billion) resulted in the almost immediate censorship of the newspaper’s English and Chinese web presence in China. Not stopping there, the censorship apparatus went on to scrub almost all links, reproductions, or blog posts based on the article, leaving little trace of its existence to the average Chinese citizen. Earlier this year, the Bloomberg News suffered a similar fate, as it too published an unacceptable report regarding the unusual wealth of Xi Jinping, the Chinese Vice President and expected successor of current President, Hu Jintao.

In “Forbidden City Enclosed by the Great Firewall: The Law and Power of Internet Filtering in China,” published in the Winter 2012 version of the Minnesota Journal of Law, Science & Technology, Jyh-An Lee and Ching-Yi Liu explain that it is not mere tenacity that permits such effective censorship–the structure of the Chinese internet itself has been designed to allow the centralized authority to control and filter the flow of all communications over the network. Even despite the decentralizing face of content creation on the web, it appears as though censorship will remain technically possible in China for the foreseeable future.

Yet still, technical capability is not synonymous with political permissibility. A powerful middle class is emerging in the country, with particular strength in the large urban areas, where ideas and sentiments are prone to spread quickly, even in the face of government censorship. At the same time, GDP growth is steadily declining from its tremendous peak in the mid-2000s. These two factors may combine to produce a population that has the time, education, and wherewithal to challenge a status quo that will perhaps look somewhat less like marvelous prosperity in the coming years. If China wishes to enter the developed world as a peer to the west (with an economy based on skilled and educated individuals, rather than mass labor), addressing its ongoing civil rights issues seems like an almost unavoidable prerequisite.

Google Glass: Augmented Realty or ADmented Realty?

September 20, 2012
Internet, Privacy, Social Media

by Sarvesh Desai, UMN Law Student, MJLSTStaff

Google glasses . . . like a wearable smartphone, but “weighing a few ounces, the sleek electronic device has a tiny embedded camera. The glasses also deploy what’s known as a ‘heads-up display,’ in which data are projected into the user’s field of vision on a small screen above the right eye.”

The glasses are designed to provide an augmented reality experience in which (hopefully useful) information can be displayed to the wearer based on what the wearer is observing in the world at that particular moment. The result could be a stunning and useful achievement, but as one commentator pointed out, Google is an advertising company. The result of Google glasses, or as Google prefers to call them “Google Glass”(since they actually have no lenses) is that advertisements following you around and continuously updating as you move through the world may soon be a reality.

With the ever increasing digital age, more of our movements, preferences, and lives are incessantly tracked. A large portion of the American population carries a mobile phone at all times, and as iPhone users learned in 2011, a smartphone is not only a handy way to keep Facebook up to date, it is also a potential GPS tracking device.

With technologies like smartphones, movement data is combined with location data to create a detailed profile of each person. Google Glass extends this personal profile even further by recording not only where you are, but what you are looking at. This technology makes advertising, as displayed in the hit movie, The Minority Report, a reality, while also creating privacy issues that previously could not even be conceptualized outside science fiction.

Wondering what it might look like to wander the world, as context-sensitive advertisements flood your field of vision? Jonathan McIntosh, a pop culture hacker has the answer. He released a video titled ADmented Reality in which he placed ads onto Google’s Project Glass promotional video demonstrating what the potential combination of the technology, tracking, and advertising might yield. McIntosh discussed the potential implications of such technology in the ABC News Technology Blog. “Google’s an ad company. I think it’s something people should be mindful of and critical of, especially in the frame of these awesome new glasses,” McIntosh said.

As this technology continues to improve and become a more integrated part of our lives, the issue of tracking becomes ever more important. For a thorough analysis of these important issues, take a look at Omer Tene and Jules Polonetsky’s article in the Minnesota Journal of Law, Science & Technology, “To Track or ‘Do Not Track’: Advancing Transparency and Individual Control in Online Behavioral Advertising.” The article covers current online tracking devices, the use of tracking, and recent developments in the regulation of online tracking. The issues are not simple and there are many competing interests involved: efficiency vs. privacy, law enforcement vs. individual rights, and reputation vs. freedom of speech, to name a few. As this technology inexorably marches on, it is good to consider whether legislation is needed and, if so, how will it balance those competing interests. In addition, what values do we consider to be of greatest importance and worth preserving at the risk of hindering “awesome new” technology?

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