Category Archives: Authentication

The Sky Is Not Falling: Your Guide To The New Facebook Terms

The internet has a mild explosion every time Facebook announces a change to its terms of service.  The shockwaves are just now creeping out with questionable articles and scary exposes bemoaning the upcoming changes and a slew of people posting those bogus copyright or privacy notices because they think those matter.  Bogus notices which I blogged about two years ago–a fun little post called You Owe Me $2 For Reading This Blog Post Title (And The Three Signs Of A Social Hoax)–but are still going around.

But what there hasn’t been too much of is an actual comparison of the differences with the old Facebook terms and the new ones.  Because that would be rational and probably not get many clicks.  All the current articles seem to take for granted that the current/old Facebook terms are fine–but change is SCARY!

So here, in the closest way I can be not rational and get lots of clicks, even though it doesn’t matter since I don’t put ads on this site  (wordpress may because I have the free service), is my fear-laden analysis of the actual section-by-section changes to the Facebook terms.  If you want to check yourself here’s a link to the old (or current) terms and the new terms that go into effect in January 2015.  Otherwise, just trust in me and BE AFRAID!!!

1. Privacy

Facebook doesn’t have a Privacy Policy–did you know that?  No, that isn’t a change with the new terms–they haven’t had one in years.  Instead they’ve had a Data Use Policy.  Which is actually a better name for what the policy covers anyway.  But now the policy will be called the Data Policy.  The word “Use” has been obliterated, it’s a whole new world of darkness and evil!

Oh, that’s the only change to the Privacy section.  Try to quell your horror and move on to section 2.

2. Sharing Your Content and Information

If that one change in the Privacy section didn’t terrify you then surely the two, yes TWO changes to the content sharing section will make you crawl under the bed and Instagram scary flashlight pictures all night.

Change 1: Data Use Policy is now Data Policy in the third item.

Change 2: the word “them” has been changed to “your feedback or suggestions” in the fifth item. Which is what “them” referred to anyway only now it’s clearer.

Steal your heart and move on to the next block.

3. Safety

The ninth item (“You will follow our Promotions Guidelines and all applicable laws if you publicize or offer any contest, giveaway, or sweepstakes (‘promotion’) on Facebook.”) has been removed.  It’s like they don’t even want us to be safe anymore!  Or it’s like they moved it to another page and link it later.  Either way: EVIL!

4. Registration and Account Security

Registering is when Facebook first sinks its evil tentacles into your personal information and account security is how you keep your own account out of the hands of other people.  So it should surprise nobody that Facebook took this entire section and did nothing at all with it whatsoever.  My goodness, does their evilness know no boundaries?  They’re like a Sbarro restaurant to your lower intestine–pure, fast-moving evil!

5. Protecting Other People’s Rights

The old version mentioned how you couldn’t use Facebook trademarks except as provided in a Brand Use Guideline and it gave examples of what those trademarks were.  Now it doesn’t give examples of Facebook marks.  AT ALL.  Except it makes Trademarks a defined term and gives the examples near the bottom of the document.  THE BOTTOM.  Dracula himself couldn’t be scarier if he was in High School Musical 6: No More Mirrors!

6. Mobile and Other Devices

We all know how important mobile devices are to Facebook users and the company.  Knowing that, can you guess what they did with this section?  NOTHING!  It’s like the moment when the full moon comes out and the guy turns into a werewolf.  Except there’s no moon and no werewolf.  Run!

7. Payments

This section used to force you into the draconian and horrible Facebook payment terms–terms so horrific I dare only utter their name and make several hand-wards to keep the demons away.  The new terms say that you will still be subjected to them–unless other terms are listed and then those apply.  And those terms could be…better?  No, they will be worse!  They will demand your unborn baby and require you to listen to Justin Bieber music non-stop for months!  How dare those…other payment providers besides Facebook make other terms available to you when buying things!

8. Special Provisions Applicable to Developers/Operators of Applications and Websites

This section links to special provisions that were totally in the same document before–you didn’t even have to click last time but NOW YOU DO!  Oh, and they combined this with providers of social plug-ins as well, just to MAKE THINGS SIMPLER/EVILER FOR YOU!

9. About Advertisements and Other Commercial Content Served or Enhanced by Facebook

Oh yeah, here’s the beefy stuff.  Because we all know that Facebook wants all your data to sell to people so that you’ll buy Snuggies and knock-off Legos and flavor injection kits that totally DO NOT INJECT FLAVOR NO MATTER HOW MUCH TERIYAKI SAUCE YOU USE!  (ahem)

Hmm.  They didn’t change anything here.  Or maybe they did–IN INVISIBLE INK!!!  (insert evil laugh)

10. Special Provisions Applicable to Advertisers

Do you put ads on Facebook, you evil bastard?  Then you should know these terms have moved to their own document!  And that document is totally possessed by an evil doll who wants to steal half your socks.  Not all your socks, just one of each pair.  I hate those dolls.

Otherwise, no changes.

11. Special Provisions Applicable to Pages

No changes here…

12. Special Provisions Applicable to Software

No changes here…

13. Amendments

BAM!  Oh, just when you were lulled into a false sense of security, Facebook done Amendment changed you, son!  And do you know what they did?  Do you know what they did?  Why, they clarified when they may make changes to the terms but still said they’ll give you notice!  That’s like McRib evil right there.  They even took away the seven day requirement for posting changes to the terms meaning they could totally post term changes MORE THAN SEVEN DAYS AHEAD OF TIME!  Not like they’ll ever do that though.  I mean, it’s not like we’re analyzing term changes four weeks before they go into effect.

Wait, we are?  THAT’S HORRIFYING!  This is like the BuzzFeed list of 13 Kittens Who Are So Scaredy-Cat They Cannot Even Handle Right Now!

14. Termination

This is the section that says what part of the terms would still apply even if you don’t use Facebook anymore.  And they made LESS terms still apply.  If that isn’t the legal equivalent of the Alien chest burster, I don’t know what is…shudder.

15. Disputes

But what if you have a disagreement with Facebook?  This is where they totally take advantage of you, right?  You bet they do.  And they do that by changing a typo (it said “or” when they meant to say “of”) and they also changed three instances where the limitation only said HIS or HIM and changed it to HIS OR HER or HIM OR HER.  Wait, so these terms apply to women now too?  What is this, Facebook, the women’s suffrage movement of the 1910’s?  Because time travel is scary or something.

16. Special Provisions Applicable to Users Outside the United States

People outside the US don’t get to use Facebook anymore.  Oh wait, that was an early draft.  NO CHANGES?!?!  Why, the implications of this are staggering.  Has anyone told Kim Kardashian yet?  She may need to delete her Facebook page in protest!

17. Definitions

There are so many changes here I can’t even begin to list them.  Actually, there are four and they’re boring.  Kinda like the Blob.  Maybe a long time ago that was scary but now I’m just eating popcorn and waiting for The Fly to start.

18. Other

Obviously Facebook has saved the best for last.  Other is the giant catch-all, the monster cornucopia of platform terms and conditions that lets the giant corporation eat your toes and drain your bank account.  So it should come as no surprise that Facebook changed NOTHING  here.  Because that’s how evil they are: pure evil.  Like pure maple syrup if maple syrup was evil.  Which is crazy talk because maple syrup is pure goodness.


And…that’s it.  My goodness, I’m surprised we made it through all of that.  I believe the only rational response is to post a status update about the Burner convention and then delete our Facebook accounts.  Instead let’s go over to WhatsApp.  I hear the guys that run that app are super cool.


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Filed under Authentication, BuzzFeed, Celebrities, Commercial Activity, CopyFUD, Copyright, Europe, Facebook, Identity, Instagram, Laws, Privacy, Social Content, Social Platforms, Social Tracking, Terms and Conditions

My Awesome Announcement

I hate tooting my own horn but this is one of the proudest moments in my still short social media law career.  Please forgive the somewhat staged presentation but those who know me know that if I’m going to tell a story I need to make it interesting.

I was at the University of Texas Co-op’s law school location last week browsing the Nutshell books.  (Go with me, people.)  For those of you not in the legal profession, congrats on that by the way, know that the Nutshell series is put out by West Academic (one of the biggest names, if not the biggest name, in the legal publishing world) and is a fantastic resource for an overview of legal issues in a particular topic.  They aren’t casebooks–larger books with often edited cases to look at judicial rulings on certain areas.  Nutshells get right to the point and provide essential information on the overall legal topic.  I used more than one when I was in law school and as a practicing attorney.

But I noticed something was missing from the Nutshell section.  Can you spot it?

Can you spot what's missing?

Can you spot what’s missing?

That’s right, there’s no Social Media Law in a Nutshell.

Let’s fix that, shall we?

I’m proud to announce that I will be writing Social Media Law in a Nutshell for West Academic.  My co-author, Thaddeus Hoffmeister, is a professor of law at the University of Dayton School of Law and has previously published a book on social media in the courtroom.  His knowledge of social media litigation, evidence uses, and applicability in criminal cases will combine with my information on the marketing, content, employment and other social media uses to make this a comprehensive review of social media across all legal channels.

Doing this as a Nutshell book feels perfect right now.  There isn’t a wealth of case law on social media issues, but there are certainly cases out there.  In some areas the most fascinating legal issues are taking place outside of a courtroom so a Nutshell allows us to cover those topics in ways a casebook couldn’t.  Plus, when the movie rights get picked up we all agree that Hugh Jackman can play me.  He’s just a more talented and better looking version of me who can also sing and dance and has a better accent.  The resemblance is uncanny.

I’m not sure when the book will be released but it certainly won’t be until 2015 at the earliest.  Rest assured I’ll let you all know as the process unfolds.

Yesterday I published the 100th blog post here on SoMeLaw Thoughts.  When I look back at how much has changed in social media since I started writing about it, not just my own professional involvement, it’s staggering.  I feel incredibly lucky to take this journey and contribute to the field as well as participate in a line of books that I personally value.  To join the ranks of the Nutshell books blows my mind.

Thanks to all of my readers and friends on social media who have pushed/pulled/heckled me along the way.  An even bigger thanks to my family for putting up with my little side projects.

Now, if you’ll excuse me, I’ve got some writing to do.


Filed under Affiliates, Amazon, Apple, Authentication, Bitcoin, Celebrities, Charity, Commercial Activity, Consumer Protection, CopyFUD, Copyright, Criminal Justice, Crowdfunding, Cyberbullying, Ebooks, Email, Employment, Facebook, Fair Use, First Amendment, FTC Endorsement Guidelines, Google, Identity, Informal Tone, Instagram, Kids, Laws, Net Neutrality, Pinterest, Privacy, Social Content, Social Gaming, Social Investment, Social Marketing, Social Measurement, Social Media and the Law, Social Media Law in a Nutshell, Social Media Lawyers, Social Media Policies, Social Media Risks, Social Platforms, Social Tracking, Technology, Terms and Conditions, Trademark, Twitter

How Social Media Helps And Hurts Elections

Tablets in 2000 had a passable Notes app, but Angry Birds was horrible.

Election nights are always fascinating to me.  Not only do you have candidates and issues but you also have analysis from across the spectrum and a wealth of different technologies to show you the results.  12 years ago the country watched while Tim Russert used an early tablet device known as a whiteboard to show the country how the entire election hinged on the outcome of Florida (a lesson we would continue to learn for weeks after).  Last night we had networks using giant interactive maps sketching out potential scenarios, zooming in on specific counties and comparing their results with previous elections.

Now that social media has reached a level of commonplace acceptance (we’ll talk about that in a future post) I found it fascinating to see how it became part of the election night process.  We were connected with our favorite reporters or candidates or analysts and could instantly see what they had to say throughout the night.  No more just waiting on a particular channel until they came back on or flipping between channels to find them.  And we could interact with our friends and colleagues around the world whether they agreed or disagreed with our political views.

Personally, I was able to participate in a group chat with ten friends whom I frequently email.  In the interests of being a bit more interactive we ended up on a giant Facebook chat session and over the night sent over 1,000 messages back and forth.  We had participants on both coasts, people in the middle of the country, even one Chicago resident who happened to be in Australia.  It was an amazing feeling to have these conversations as the night progressed and more than once I was thankful for what social media has done to connect people.

But as we’ve seen with so many issues, social media can have benefits and drawbacks.  Let’s be positive and start with the benefits. Beyond connecting people and providing a forum for discussion, social media is fast and widespread–two fantastic qualities for something so time sensitive as a day to conduct nationwide voting.  Some states in the Hurricane Sandy-ravaged northeast passed emergency laws that allowed residents to vote in any polling location given the difficulty in traveling.

Multiple polling location voting is also something that was available for the first Presidential election in my own, non-hurricane ravaged Travis County in central Texas.  Austin residents could vote in any polling location.  That’s a great thing provided you have access to a Twitter feed or connected account that would tell you while the line at a grocery store is 1.5 hours long there’s a polling location two miles away with nobody in line.  I expect that by the next election we’ll see a collection of apps or message networks that can better alert voters of potential lines and advise them where to go.  I also hope that trend of allowing people to vote in different locations continues.  That’s a great benefit social media can bring to the current election process.

There is, however, a dark side to social media and elections.  Social media has flooded us with opportunities to share content with our friends and community.  Status updates, locations, photos, videos, badges–these are a part of our lives and we want and, to some degree, expect to be able to share the content we choose with the audience we choose.  So we grow concerned or upset when we hear stories about how smartphones are not allowed at some state’s polling places.

The Citizen Media Law Project has a great table summarizing the various state laws on recording devices in polling places–whether the devices are allowed, whether there is a statement on their use, and whether you can record your own vote.  There is certainly an innocent side of taking pictures at a polling place.  Pictures of people voting for the first time.  Pictures of people proud to support their candidate.  Funny pictures of people dressed up like Big Bird in line to vote (because that’s how we roll in Austin).

But there’s also a dark side to pictures in polling places.  Like stories of employers who threaten employees with termination unless they take a picture of their ballot showing they voted for a particular candidate.  Or organized efforts to force proof of votes through threat of violence or rewarding with payment.  The risk of ballot recording can be determined by each state but it is something to keep in mind–my last post was about how social media has broken anonymity, a valuable commodity.  Certainly, anonymity for a ballot is an important value to protect and if it means we lose some funny filtered Instagram pics of a ballot as a trade-off then I hope most people will be okay with that.

However, elections are getting more complicated and now many voters do their research on their phones.  Possibly while in a long line waiting to vote.  Walking into a polling place and then being told you can’t use your phone can cause a bit of a panic if you’re struggling to remember dozens of propositions or ballot initiatives or local candidates.  You should be able to record your notes onto paper and then vote, if that’s an issue.  Still, that’s remarkably inefficient and something that social/mobility should be able to address.  I’m also hopeful the problem of recording via smartphone can be solved while allowing people to use their phones for appropriate items like accessing notes, but it is a tricky balancing act.

And then there’s the biggest issue of them all–why can’t we vote using our smartphones?  Not exclusively, of course.  There should still be polling places and absentee ballots and other measures.  But with the rise of smartphones across the country, shouldn’t we be able to use them to vote?  That may seem difficult or outlandish, but wouldn’t we have thought the same thing a few years ago about depositing a check with a phone (now many banks support this by taking a picture of the check)?  Or paying bills with your phone (even more banks support this, heck even Starbucks lets you do it)?  Or signing contracts (you can e-sign contracts on your phone now, even complex contracts like real estate closings)?  Those are activities that many years ago we couldn’t have predicted could be done with a phone, yet they are now commonplace.  Why not voting?

When you see video footage of people waiting in lines for hours to exercise their most fundamental of rights I would think everyone can agree that we should have a better solution.  Granted, many people were concerned about e-voting machines and you still see the random stories of glitches and rogue software so there’s sure to be some pushback on the idea of using your phone to vote.  But we’re fooling ourselves if we thought paper ballots were always secure–phones should be more secure than previous systems we relied upon for decades if not longer.  And there would always be other options.

Social media is about conversations and speech.  Voting is the ultimate realization of free speech.  Shouldn’t social media and the mobile technology wave be able to help bring voting into the 21st century?  It’s an idea worth pursuing and we’ve got a little under 4 years to work on it.

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Filed under Authentication, First Amendment, Identity, Laws, Social Tracking

Social Media Has Screwed Up Anonymity

Anonymity used to be about not revealing information, like all that naked dancing you do behind your fence at noon.

Being anonymous is a powerful thing and can be used for many good purposes.  Sadly, social media seems to ignore virtually all of them.

Just yesterday I was blogging about how the systems that gave rise to social media created an environment where people are becoming disconnected from one another.  This is related to being anonymous because many platforms do not authenticate users so you have many people not using their name or any name.  The resulting disconnection can lead to cyberbullying and I wondered if perhaps the technology that brings people together is also driving some people apart through this disconnection.

But after considering two stories I’m also wondering if social media has completely screwed up anonymity and if there’s a way we can reclaim it.

Here’s the first story.  It’s a cute little tale about whether your dinner party needs a social media policy.  (Hat tip to my friend @MarcVock for sending me the story.)  The writer had a dinner party that included some social media heavyweights and the resulting photos, check-ins, and status updates resulted in potentially millions of people seeing details about a private event.  He got a text from someone wanting to stop by for the party while it was going on.  He later heard from someone else who liked his kitchen lamps.  Neither of those people were invited over.  It’s a cute story with only a modicum of creepiness–certainly it would come as no surprise to someone reading a blog about social media legal issues that there may be some tension when a private gathering has some social media celebrities or heavy users: the private event will end up being something less than private.

But compare that story of a dinner party gone public to the much more sobering tale over two college students having their sexual orientation outed on Facebook.  (Hat tip here to another friend, Will Spence.)  The students did all they could to set their Facebook profiles to be private since the students were living somewhat openly while in college but had not yet told their family.  But when another user created a Facebook group for the Queer Choir they had joined on campus, that event of being added to a public group was broadcasted to all their friends, including family members.  This then forced the issue and the students were asked point blank about their sexuality by their parents.  That’s not as cute as having a dinner party seen by potentially millions of people.

Mark Zuckerberg is well known for saying that you should have one account on Facebook because you are who you are–that the days of having a different image at work from the one you have outside of work are coming to an end.  But they still maintain extensive privacy controls for different activities.  Ironically, having more privacy controls can actually lead people to reveal more information about themselves.  It’s called the illusion of control and there’s research to back it up.  This Texas case wasn’t directly about that illusion–although perhaps because both of the outed individuals had locked down their profile they thought it was safer to connect with more people they were open with, and it was one of those people that added them to the group.

It has always been difficult to control private aspects of your life if some people know and others do not.  That was true before social media and is even harder today when one slip and everyone can see forever.  That said, have we completely screwed up the concept of anonymity?  There is a long and distinguished history of anonymous speech in the social and political arenas.  Today, anonymous speech is mostly nasty comments.  And anonymous parts of our lives are almost completely ignored.

France has been advocating for a right to be forgotten online.  This was considered an outlandish view and almost impossible to implement, but the debate continued.  This year the FTC issued its report Protecting Consumer Privacy in an Era of Rapid Change where they discuss multiple times the concept of a digital eraser button that would delete individual pieces of content (potentially even harder to implement than the widespread French right which would cover all data about a person).

But aren’t we going about this all wrong?  Anonymity isn’t about taking something back, it’s about not putting it out there in the first place.  If I don’t want pictures of the inside of my house put online, shouldn’t I be able to designate that space as private even if friends come over who Instagram daily?  If I don’t want pictures of myself or my children popping up online, shouldn’t there be a way to register our faces in Facebook’s much discussed facial recognition software so that the picture doesn’t go public?  Try uploading a video to YouTube with a song in the background and you’ll see it is immediately flagged for copyright issues–why isn’t this level of protection available for personal privacy?

Benjamin Franklin famously wrote “Three may keep a secret, if two of them are dead.”  Perhaps the rise of social media shall mean the death of all secrets.  But many cultures around the world also have some version of the phrase “Good fences make good neighbors.”  In addition to debating the merits or feasibility of removing information once it’s been published, isn’t it worth a discussion on ways to honor people’s wishes for privacy prior to publication?


Filed under Authentication, Cyberbullying, Facebook, First Amendment, Identity, Privacy, Social Platforms

Is Social Media Creating Cyberbullies?

It’s true. They do.

You can’t go a week these days without hearing about a case of cyberbullying.  If you sought the cases out you could find a new story every day.  Many of these stories have resulted in justice for the bullied, like the woman bullied on the school bus who ended up getting a vacation and the bullies were punished.  But too many of these stories still end in tragedy (I’m not going to link any here, you can search for yourself if you’re looking for some bad news).

Some say that social media has helped bring these cases to light or helped the victims.  Social media certainly can have some advantages here–bullied individuals can make meaningful connections so they realize they aren’t alone or they can show the public what bullies have been doing to them in private.  Certainly the notion of bullying has been around long before social media, so connecting more people can help address this problem even if it isn’t a total solution.

But I also have to wonder if social media is also contributing to the problem by creating more cyberbullies in the first place.

The Internet and social media are, at their cores, speech.  And the cornerstone of every western democracy (which still drives most social media activity) is free speech.  But that central right of free speech comes with costs.  One of those costs is offensive speech.  We do set limits after which speech can become something that we are no longer willing to legally protect (libel, slander, harassment, threats, coercion, etc.).  But even beneath these limits there is a huge amount of speech that is protected but unsavory–we call that offensive speech.  Offensive speech is protected and it should be–after all, the speech behind most political change will be considered offensive by some.  But at some point even a huge piling of offensive speech can become something more, something that we don’t need to protect.  That’s where the merely offensive turns into cyberbullying, even though the exact line is hard to draw.

But until the speech turns into something that society doesn’t want to allow, for the most part it is protected as free speech.  And one part of free speech is the right to be anonymous.  There’s a long history of the right to anonymously criticize a government or corporation being protected.  But that history is usually told through decisions made by the speaker.  Hundreds or even dozens of years ago people wrote critical pamphlets or essays or books and didn’t sign their name, or signed a fictitious name instead.  That anonymity was by intent.  The anonymity that social media allows is primarily one by design.

As the Internet grew from nascent connected communities like dial-up BBS sites and Usenet groups, real names were rarely used because of technical reasons.  Systems allowed only a certain number of characters for your ID, if they allowed letters at all (one of the early, large networks, CompuServe, only had 7 to 9 digits as your user ID and email address).  Putting in your real name wasn’t possible and it didn’t matter.  You adopted a nickname or handle and joined the community.

Gradually, more and more sites created their own techniques for logging in or establishing a permitted identity, but they rarely (if ever) required you to actually authenticate yourself.  Meaning you created an ID with a name and verified that was your account but there was no attempt to authenticate your name.  This authentication problem is something I’ve blogged about before but the importance here is jumping ahead several decades and seeing the social media world we have wrought.

In an effort to get people to join sites as quickly as possible, we have made signing up as easy as possible.  Easy means fast.  Fast means not authenticated.  Sites don’t care if you are who you say you are–that you use their site and accept their terms are good enough.  We have created a world where the vast majority of content is anonymous.  Some of it may be truly anonymous, as in not even a username is attached as an author.  Other content may have a user identity connected to it but we have no idea who the person may be.

There are some well known psychological impacts to having this amount of anonymous activity.  Generally it’s known as disinhibition and it has some scary sounding factors like dissociative anonymity (knowing their activity cannot be traced back to them, users will behave differently online), solipsistic introjection (communications from other people, seen just as text on a screen, can be interpreted as just a voice within a user’s head–a voice which they can then respond to without regard for social norms), and asynchronicity (users may post more heated content because they know they will post it and then never have to revisit the content or site again).

Social media certainly has the ability to connect people in meaningful ways. But as it becomes a more widely used method for communicating it also comes with some dangers.  It didn’t create the original problem, but social media might be making it worse.  Lawmakers are already struggling with how to properly address cyberbullying and otherwise offensive posts.  There’s a great article from the BBC about a current wave of prosecutions over social media content, but even better is the video embedded in the article that talks about different categories of offensive behavior and what is appropriate to prosecute.

But have we made the problem of cyberbullying worse by continuing to propagate social media sites that have anonymous or unauthenticated accounts?  Gawker came under fire for recently unmasking the true identity of a controversial user at Reddit.  The immediate response from the Reddit community was to flame Gawker for infringing on free speech, particularly the right to speak anonymously, and then to ban all Gawker links from Reddit.  Apparently they missed the hypocrisy in their response, but deep down is something bigger.

When this user was unmasked he practically begged the author not to reveal his name.  He knew it would have real world repercussions based on the content he had posted and the people he had riled up over the years.  Perhaps without social media he would have found other, similar outlets for his kind of activity–but did social media make it worse?

Are we creating a new generation who are even more disconnected from other people and simply see words on a screen rather than feeling people behind them?  Social media is about conversations and should be about bringing people together.  Could it be the technology that allows me to connect to someone I would have never met in real life is the same thing that disconnects me from people who work next to me?

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Filed under Authentication, Cyberbullying, First Amendment, Identity, Informal Tone, Privacy, Social Platforms

Congratulations! You Are Now A Spammer In Malaysia

You were once Time’s Person of the Year. Now you’re a criminal in Malaysia. What happened, You?

Something as dry and legal as the burden of proof actually matters, as Malaysian lawmakers are determined to show their country’s internet users.  Just not in the way they planned.

Malaysian lawmakers claim they want to crack down on people committing crimes on the Internet.  Like sending out spam or other illegal content.  But it’s been really, really hard to convict those people.  So they decided to amend their Evidence Act 1950 to switch the burden of proof when it comes to saying who published an article or other writing in three specific instances.

  1. If your name or photograph appears on a publication as the author or editor then you will be the presumed author or editor.
  2. If content is published under an Internet Service Provider account that belongs to you then you will be the presumed author.
  3. You will be the presumed author of any content that originates from a computer in your custody or control.

It doesn’t take much to imagine the scenarios where this standard could be abused.  If I publish a blog article with horrible lies about a public official but put your name or photo on the top as the author, you will now have to prove you didn’t write it according to the first change.  Or if I’m a spammer I can just use your name on the emails and, voila!, you’re now a spammer in Malaysia.

Under the second change, if I go over to your house and publish the same disparaging blog post via your WiFi network then you will be the presumed author and you will have to prove it wasn’t you.

The last change would let me use any computer in your house to publish that same blog post and now it’s your fault.  Or, from a broader perspective, anyone with control over, say, a building full of computers would be the presumed author of anything written on those computers.

Granted, all of these are presumptions and can be refuted.  But how do you prove you didn’t write something?  Even what would seem like a strong alibi–like I wasn’t in the building when that computer published the story–works less in the digital age when publications can be scheduled for later dates.  I can’t think of a way to disprove authorship absent someone else coming forward to say they did write it and you going along with it.

Critics of the law say that the changes have nothing to do with detecting spammers and other illegal activities but rather as a way to crack down on politcal speech for the upcoming elections.  I don’t know about the specific intent of the law but I think we can all agree this will do absolutely nothing to curtail spammers or other intentional illegal online acts.

Spammers and pirates and other illegal online users don’t typically attach their real name to the content–and now thanks to the first change they are far more likely to put another person’s name on the content because now the presumption is already on the innocent party.  And as for tracking the specific ISP account or computer, the majority of times that level of detail isn’t available for cybercriminals.  You’re far more likely to track down computers or people who have had their systems compromised due to malware.

The downside to such changes in the burden of proof are hopefully obvious.  And I wouldn’t at all be surprised if the politicians who passed this law suddenly find their names and pictures on some questionable publications just so they can experience the joy of trying to prove they didn’t write it.  The burden of proof isn’t something non-lawyers think a lot about beyond the well-known “innocent until proven guilty” saying.  But it’s actually a concept that matters a lot as I imagine many Malaysians are about to find out.

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Filed under Authentication, Consumer Protection, Identity, Laws, Social Tracking

Shouting “Fire!” In A Crowded Social Media

Similarly, it would be a crime to yell out “OHMYGOD! It’s Justin Bieber!” in the middle of this group. For many, many reasons.

Even the most adamant freedom of speech supporters agree that there is never a total freedom of speech.  The extent to which a freedom-loving society will embrace free speech ends where that speech causes harm.  The classic case is shouting “Fire!” in a crowded movie theater.  But most people who use that example forget a key word.

The dangerous speech here is falsely shouting “Fire!” in a crowded movie theater.  If the theater is actually on fire, shout “Fire!” all your want.  Jump up and wave your hands as you scream it.  Compose a song about it.  Yell it over your shoulder as you race up the aisle.  But if there isn’t a fire and you create a panic that causes injury, freedom of speech isn’t going to protect you from prosecution.  (Interesting note, the case that birthed the phrase, Schenck v. United States, had nothing to do with fires.  It actually upheld a conviction of a man who was protesting the draft during World War I using a rule that no longer applies.)

The same limitation applies for social media, only now it’s even more dangerous to induce false panic because social media posts last much longer than nefarious sound waves.  Although I recently blogged about social media accusations, two other recent examples show the dangers false social media panic can create–both for the instigators and the public.


Take, for example, the case of Paul Chambers in the UK (pointed out to me by @Ninabzai).  On January 10, 2010, while trying to fly to Belfast to meet another Twitter user, snow shut down much of the country’s airports.  In frustration, he sent the following tweet:

Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky-high!!

As a result of the tweet, four officers came to his work, his home was searched for dangerous materials, his personal property (phone and computer) were confiscated, and he claims he lost his job as a result of the investigation.  He was charged with violating the Communications Act 2003 which makes it a crime if a person

sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character;

Mr. Chambers was convicted and fined about a thousand pounds.  After some media outlets sided with him on the story under the #twitterjoke hashtag, he appealed the ruling based on his tweet not being menacing.  That case is currently being reviewed by several UK judges as they attempt to reconcile social media with existing law.  Although to me the outcome is a bit uncertain (the tweet is right on the line of being read as a joke or not, hard to tell the context of his tweets but if it was independently read then that context would also be missing), it’s also clear the damage has already been done in this case.  While Mr. Chambers may or may not be a successful joke teller, he is certainly an idiot for making a public joke that involves airports and explosives.

Indeed, in Mr. Chambers’ own retelling of the story he compares the tweet to another threat of violence:

Like having a bad day at work and stating that you could murder your boss, I didn’t even think about whether it would be taken seriously.

Apparently the lesson from this incident hasn’t really sunken in if he’s comparing the tweet to a murder threat.  You know, good clean murder and bombings–what could be more innocent and carefree?

Twitter Terrorists

From Mexico comes the story of a school teacher and a journalist imprisoned for sending terrorist threats over Twitter.  The problem began on August 25, 2011, when teacher Gilberto Martinez Vero tweeted the following message about a local elementary school:

i confirm that in the ‘Jorge Arroyo’ Sch. In Carranza Col. an armed group has taken 5 children. Total psychosis in the zone.

Like Mr. Chambers, who sent a tweet about explosives and an airport in a security-aware age, Mr. Vero sent his tweet in the city of Veracruz which has had a tidal wave of drug cartel violence over the last few years.  Including violence against school children.  A local journalist picked up the tweet and began sending it out with hashtags to ensure a wider distribution.  As I think could be expected, the tweets went viral and panic ensued.  Horrified parents rushed to the scene to retrieve their children (probably scared out of their minds that their child was one of the five taken).  In the panic, several car crashes were reported.

The teacher and journalist were arrested for the tweets.  When authorities attempted to charge them with a crime it turned out all they had that read on the situation was a crime covering terrorism threats.  The crime carried a penalty of up to 30 years in prison.  Realizing that may be too harsh, the government quickly passed legislation to make rumor-mongering a lesser offense.  But the backlash had already begun–local citizens were outraged that while real crimes were still going on the government was threatening two Twitter users.  And the public insisted they needed social media to find out what was happening with the real violence–they were scared that a case like this could create a chilling effect that would cause even more harm.  Acknowledging that the Mexican public needs social media right now to find out about current events and that the existing law was too harsh, the two were released.  That’s a particular result for a unique situation, but hopefully everyone involved understands the danger of putting out false information.

Understanding the need for social media coverage in that environment, it’s also bizarre to see the number of blogs and journalists rush to defend the tweets as independent media coverage.  This wasn’t media coverage, this was falsely shouting “Hostage!” in an elementary school.  One apologetic piece in Mother Jones discusses the state of Mexican journalism due to the extended drug violence and while I have sympathy for that environment I don’t believe that excuses the tweets.

I once heard a JetBlue executive speak about using social media in crisis situations.  Her great quote was “It’s only good to be fast if you’re right.”  Here is an excellent example of that–here the two Twitter users were fast but were 100% wrong and that created real panic and real damage.  I’m not saying they should have been put away for years, but they also shouldn’t have been let completely off the hook.  There is a real danger with violence spilling over into schools and that’s a terrifying situation–it also means that if you start a false report you should be held responsible for the harm in being wrong.

In this case, a rare convergence of social need and criminal law gaps let the two off the hook, but the danger of false panic in social media is real and a limit to how we view freedom of speech.

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Filed under Authentication, Europe, First Amendment, Laws, Social Media Risks, Social Platforms, Twitter, UK