It was no surprise to social-media law attorneys that the U.S. government withdrew its request that Twitter unveil the identity of an anonymous account that criticized President Trump’s immigration policy.
“This is beyond basic surveillance,” said Sara Hawkins, a social media law attorney in Arizona. “We have privacy laws in this country, and just because we don’t like what somebody else is doing doesn’t mean that those privacy laws should be disregarded unless it involves a violation of civil or criminal law and even then there may be reasons to protect an individual’s privacy.”
Twitter sued the Trump administration in the U.S. Northern District of California when the Department of Homeland Security (DHS) asked for the identity of users tweeting behind @ALT_USCIS, which bashed the new administration.
“Twitter has said that it will not reveal their users’ personal identification without a court order because Twitter knows that if they freely hand over the information in response to a request from the government, then people would stop using Twitter and gravitate to a different social media site to communicate.” said Ethan Wall, a social media law attorney in Florida.
After Twitter went so far as to defend itself by suing the Trump administration in the U.S. Northern District of California, the Department of Homeland Security (DHS) withdrew its request and now the Office of Inspector General (OIG) for the DHS has opened an investigation.
“We will never know the legal ramification of such a request,” Ms. Hawkins told PacerMonitor News. “It places a heavy burden on social media platforms to step up and defend free speech rights in situations where serious judgment calls must be made.”
“Had the DHS been successful it would have set a precedence that the government can ask any private company to identify whomever they want even if the person has not violated any law,” Ms. Hawkins told PacerMonitor. “That’s the equivalent of the police walking into your home, taking whatever they want and asking you any question they want. It’s a violation of data privacy.”
Twitter boasts more than 300 million account holders, according to the complaint filed April 6, 2017, and under the current terms of service, users are not required to reveal their legal name.
“Anyone can use a pseudonym and Twitter is okay with that because the platform does not require identity authentication to use or register an account,” Ms. Hawkins said in a telephone interview. “Their platform doesn’t require credit card authentication, which would be one method of identity verification.”
The Twitter suit against the DHS is just one example of how privacy laws and free speech under the U.S. Constitution’s First Amendment have converged since the emergence of the digital revolution.
While the First Amendment protects freedom of religion, speech, press, petition and assembly, there is no overarching data privacy law. Instead, there are data privacy provisions woven through consumer protection laws such as the Gramm-Leach-Bliley Act of 1999, the Video Privacy Protection Act of 1988, the Cable Communications Policy Act of 1984, the Telephone Records and Privacy Protection Act of 2006, the Health Insurance Portability and Accountability Act of 1996 and the Fair Credit Reporting Act of 1970.
“The identity of people who are creating what seems to be a parody account on Twitter would be, in some circumstances, protected under the First Amendment and potentially the FTC,” Mr. Wall told PacerMonitor. But when it’s for marketing and advertising purposes, a consumer’s personal information will remain a free for all since Mr. Trump repealed the broadband privacy rules that the Federal Communications Commission (FCC) adopted in October 2016.
“Essentially, large internet companies can continue to collect, buy and sell an individual’s online data and browsing history to target them with advertisements,” said Mr. Wall in a telephone interview. “While this does not impact the First Amendment, it does strike a blow to individual privacy rights online.”
Another relevant legal issue involves the government asking the U.S. Eastern District Court of New York to issue an order to Apple, Inc. using the All Writs Act 28 U.S.C. § 1651 as legal grounds to direct the mobile device company to disable the security of an Apple phone that the government had seized with a warrant to investigate the San Bernardino mass shooting in California in which 14 people were killed. Judge James Orenstein deferred ruling to allow Apple to provide a written response.
“Apple declined for a number of reasons, one of which was data privacy,” said Ms. Hawkins. “Apple did not want to get involved and be responsible to the government whenever they wanted something. The common phrase is if we unencrypt for you, we have to unencrypt for everybody. Where do we draw the line?”
According to Mr. Wall, because Mr. Trump is a public figure, it’s more difficult to gain access to the identity of a social media critic much less win a case about libel and slander.
“But at the same time, private individuals may not have the resources to pursue a lawsuit because social media sites like Facebook and Twitter put the onus on the victim to file a lawsuit or to get a police report before they will disclose any information or remove a disparaging post,” said Mr. Wall.
Further complicating the claim of either a private individual or someone like President Trump is the fact that social media platforms can use safe harbor provisions as a shield.
Safe-harbor provisions of the Digital Millennium Copyright Act (DMCA) protect social media sites from copyright infringement liability if a platform promptly removes content when informed by a copyright holder of an infringement.
“The platform, however, has discretion for taking down the allegedly violating material or allowing it to remain posted,” said Ms. Hawkins. “To have it removed if the social media site doesn’t view it as an infringement, the copyright-holder would have to file a summons and complaint in Court and then email it to Facebook or Twitter before they would take further action.”