Wednesday, December 11, 2019

When we set privacy settings on social media are they enforceable? Twitter says yes, but a recent judicial decision by the Second Circuit Court of Appeals in a lawsuit against Donald Trump has cast its power to do so in doubt. The basis of the decision is that when a public official shares official government policy via social media, he cannot block access to users of that platform. The effect of the decision, if it is allowed to stand, is that your privacy settings may be more a suggestion than have any functional applicability.

The lawsuit was initiated by several critics of President Trump who were angered that they were blocked by the president after the administration says the critics were “trolling” him and blocking him from communicating his message clearly and without obstruction. They argued that since the president uses Twitter as part of his initiatives of policy, the public has a right to receive, firsthand, his message and to respond without impediment.

The original concept of Twitter was to allow users to post their bursts of expression in a brief 140 characters. The character limit has since doubled—but the idea, again, was supposed to be original thought expressed by an original poster.

Donald Trump uses Twitter as no one has before. Not only did he use Twitter to express original thoughts—but once he became president, he used Twitter as a way to communicate policies of the administration while at the same time bypassing the traditional avenue of the media to receive official statements and then to translate, and disseminate them.

That made media superfluous to a degree, and angry. The Second Circuit took the president’s preferred method of communication and then essentially declared that if Twitter is his medium, that medium must be unrestricted.

The decision might be clear at first glance. But it unleashed unanticipated consequences. One of which occurred almost immediately. Within a day of the Court’s ruling two critics of newly elected representative Alexandra Ocasio-Cortez sued her for using Twitter in the same manner as the president, and blocking them.

The lawsuits were filed by former New York State assemblyman Dov Hikind, and present congressman Max Rose, both of whom have been critical of Ocasio-Cortez.

Ocasio-Cortez specifically referenced her online communications as important in challenging fellow Democrat Speaker-of-the-House Nancy Pelosi, who belittled Ocasio-Cortez, and other critics’ use of social media. Pelosi minimized the influence of Ocasio-Cortez suggesting that her influence was illusory, without the votes that actually create legislation. Ocasio-Cortez responded that Pelosi was out of touch, implying she was too old to understand the impact of social media. Ocasio-Cortez explained she can raise dollars online collectively while Pelosi needs to “dial-for-dollars” individually.

From a legal perspective, the fact that social media allows immediate and multiple contacts leads to a question, and suggests we need a judicial analysis as to whether the rules have changed.

Let us review what the rules have said, and what remains: We have freedom of speech, freedom of the press. Freedom to petition the government for redress of grievances.

While there has always been a right to communicate a point of view of protest, until the very recent decision there has never been a corresponding medium for officials to listen. The decision, in effect, would seem to require politicians to read every protest letter they receive. Or allow hecklers without protest.

It is no secret that President Trump has often been critical of the judiciary. It is very likely that the opinion was meant to be a fastball behind the President’s head. It is entirely possible that the judiciary was concentrating exclusively on the President without considering the natural consequences beyond the presidency.

While Trump uses Twitter more than most officials, he is far from alone in using social media. Many others in government (like Ocasio-Cortez) employ tweets to inform. The question emerges: Can anyone using media to make statements take advantage of privacy settings?

It seems clear that intending to clarify, the Court has opened up a can of worms—even beyond the lawsuit filed against Ocasio-Cortez.

As the decision stands, where any public policy pronouncement to one must be accessible to all, it would behoove any company to keep all media public, or otherwise they could face liability, or perhaps even criminal sanctions. For example, under federal securities law, a privacy setting could potentially create insiders and outsiders, and as such violate disclosure laws.

Taking the decision to its logical extreme, one might conclude that any media privacy settings are illegal. Under the Second Circuit’s explanation, any statement that could impact a segment of a population, anyone, must be permitted to everyone.

Social media is a new phenomenon, even if it feels very old. The question is, at its most basic: Who has a right to control any statement that is placed online… Is it the author who writes the statement? Or the publisher who provides the platform?

The interesting thing is that in the case of Twitter, their user agreement says that the author who uses their platform is the owner…The Second Circuit Court of Appeals, at least in limited circumstances, disagrees.

That leads to the question of what the legal status of the platform is… We know that in the case of Twitter they have recently made policy determinations to exclude tweets they found objectionable from their platform.

But now, a Federal Court has found Twitter to be a “community billboard,” which seems to put Twitter’s right to restrict at issue.

In a limited way the decision makes sense. Every writer knows that when he publishes he loses some control of the message. What we write, once published, becomes less about us and in some sense belongs to the public. But until now we still had some control over where and when our words were accessible.

The Second Circuit decision turns that around. Once we publish, the Court seems to say, we lose control completely. Perhaps we must accept that privacy is illusory, and its value as a commodity is deflating down a runaway slope.

By Stephen Loeb, Esq.


 

Stephen R. Loeb heads the Law Office of Stephen R. Loeb, a civil practice in New Jersey and New York. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.

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