The Bay Area Rapid Transit District's August shutdown of wireless service to squelch a demonstration in San Francisco raised anew questions about the use of technology in the face of authority. In this third installment in a series of FAQs, we examine the rights and responsibilities of social networks in protecting your privacy and your free speech. Be sure to check out the first two installments: a primer on your right to phone service during a protest and a discussion of your right to photograph the police.
Social network services are being used to facilitate free speech in new and exciting ways, raising serious questions about the responsibilities of private actors like Facebook and Google to safeguard the speech of their users. Facebook and Twitter have already played a pivotal role this year helping citizens of countries like Egypt and Britain organize demonstrations and rallies against those in power. Microblogging service Twitter famously advocated for free speech in the midst of the Arab Spring, and to date remains the only major social network to publish its law enforcement guidelines for everyone to read. These guidelines delineate how and when Twitter will comply with requests for private data such as your email address, IP address, and service provider from a government agency seeking to identify you or to censor your speech.
Government censorship of your posts on Twitter and Google+ is a serious concern, but let’s get one thing straight: the First Amendment does not apply when a social network like Facebook takes down your content. The First Amendment only protects your right to freedom of speech and assembly against government censorship. “The First Amendment does not apply to nongovernment actors,” says Susan Freiwald, a law professor at the University of San Francisco. “You have almost no chance of making a successful First Amendment claim against a private actor.” If the U.S. government tries to censor or even shut off your access to a social network entirely (as British Prime Minister David Cameron almost did during the riots in England last month), you’ll want to know which networks have the best record of working to protect user rights.
To help you make the right decision about which networks to use, we did a little digging on the privacy policies and legal track records of some of the biggest names in networking. Unfortunately, much of what connotes modern electronic surveillance and telecommunication law is still being written. The information in this FAQ is subject to change at any moment, and is not intended as legal advice. If you feel your digital rights have been violated, we encourage you to seek counsel from a legal professional.
Does my social network provider have a responsibility to protect my content?
Absolutely not. Under U.S. law, social network providers are not obligated to protect or defend any text, photos or videos you publish using their services. The Communications Decency Act gives social network providers intermediary liability, meaning they cannot be held responsible for what you publish using their service; furthermore, the CDA encourages service providers to remove material they find “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected” by strongly protecting them against legal reprisal.
Social networks can thus censor you at will (you did agree to abide by their terms when you signed up, after all) and have no legal obligation to defend your content if a third party attempts to censor you, even if the text, photos, or videos you post are protected by the U.S. Constitution.
Will my social network censor me if the government demands it?
The short answer is yes, because it’s very rare for government agencies to request content removal without a clear legal precedent. All of the big social networks maintain strict policies against the illegal distribution of intellectual property, and with the protection of the CDA it’s just much easier for a social network provider to remove content first and ask questions later.
But some will put up more of a fight than others. Twitter has an excellent record of being forthright with users regarding content removal, promising to make good-faith efforts to contact affected users with instructions for responding to a content takedown notice. The microblogging service has also partnered with Chilling Effects (a clearinghouse on Internet legal issues) to post all takedown notices and counternotices (stripped of your personal info) to a public database.
Google also sends takedown notices to Chilling Effects, and goes one step further by publishing the Google Transparency Report, which details most of the content takedown or user data requests that Google receives from government agencies and federal courts around the world.
Facebook does none of these things, and its Terms of Use does not include a promise to notify you when your content is removed.
Can law enforcement agencies monitor or shut down my account without my knowledge?
U.S. government agencies regularly request that social network providers disclose user data or take down content for legal reasons, often to prevent or remove defamation, hate speech, and child pornography. Most social networks will notify you of government requests for your information unless they are specifically barred from doing so by court order. Twitter explicitly promises as much and has demonstrated a willingness to fight for its users in the past, in one case securing a court order allowing the company to notify Birgitta Jornsdottir that her private data was being subpoenaed by the U.S. Department of Justice as part of an investigation into her involvement with WikiLeaks earlier this year.
Facebook has not demonstrated a similar commitment to user privacy; the Facebook Data Use Policy stipulates that your personal information may be shared in response to a legal request from anywhere in the world if Facebook representatives have a “good faith belief that the response is required by law in that jurisdiction, affects users in that jurisdiction, and is consistent with internationally recognized standards.”
Google maintains a similar good-faith policy and retains the right to share your personal information with third parties without notifying you.
Despite the vague wording of the latter two policies, digital liberty activist Eva Galperin remains confident that Facebook, Twitter, and Google will inform users of government requests for personal information unless they are prevented from doing so by law. Galperin monitors the field of digital privacy law as part of her work with the Electronic Frontier Foundation, and encourages consumers to check out the EFF’s ongoing Who Has Your Back petition to stay abreast of which Internet companies are the most transparent about how they handle user data.
Bottom line: Twitter is currently the best choice for civic activists looking to rally support over the Internet. While Facebook and Google+ still struggle with the responsibility of supporting free speech, Twitter continues to be used as a tool for both serving the public good and inciting civic disorder. When the time comes to share your manifesto with the masses, you might consider keeping it under 140 characters.
