Facebook landed in the crosshairs of a fiery hate-speech protest last week that garnered so much media attention that the Menlo Park company had to issue a public mea culpa. Turns out it was just one of many First Amendment conflicts to put Facebook in the awkward and unenviable position of deciding what type of speech must be policed.
With a user base of 1.1 billion, and an onus to balance individual liberties against abusive content, Facebook no longer has the option of being a neutral communications vessel. The hate-speech fracas led to a change in policy, and Facebook had to promise feminist organizations — and advertisers — that it would ban rape jokes and tell users how to behave.
But more often than not, Facebook has to protect those users from privacy invasions. Internet law attorney Cindy Cohn said she has seen quite a few cases in which one person tries to subpoena another person’s content, in violation of federal law.
“That puts Facebook in an unfair position of having to evaluate whether the subpoena is proper,” she said, adding that the company couldn’t possibly draw those conclusions fairly, even with a huge legal team. Instead, it has gotten ensnared in a whole slew of court battles.
Cohn, who works at the San Francisco-based Electronic Frontier Foundation, cited one recent case that she hopes might ultimately put Facebook in front of the U.S. Supreme Court. It started as a domestic violence dispute, in which the alleged attacker tried to subpoena private Facebook messages from his alleged victim. The Los Angeles Superior Court backed him up, although Cohn eventually withdrew the subpoena. Facebook appealed the ruling nonetheless, claiming that such orders undermined laws protecting stored communications.
Facebook aggressively resists such demands for user content, and Cohn believes it should not have to comply. She and colleague Jon Eisenberg filed a friend of the court brief making that argument.
“More and more now, people communicate over Facebook, Gmail, Twitter and Google, so our communications are in the hands of third-party [providers] in a way that they weren’t before,” Cohn said. “That’s opened up an opportunity for people who want an easy way to get at your correspondences — but it’s not right.”
The problem is that people disclose just about anything via social media — marital problems, credit scores, even crimes. And much of it would be relevant in a court of law.
On Friday, however, California’s Second District Court of Appeal in Los Angeles declined to hear Cohn and Eisenberg’s argument.
Last year, an appeals court in Sacramento grappled with this issue in the case of a juror who chatted about his jury service on Facebook. The court upheld the subpoena over objections from Cohn and other Electronic Frontier Foundation attorneys. She hopes that if other appeals courts rule differently, they’ll force the California Supreme Court to take up the issue.
“To me this is a species of a much bigger problem,” said Cohn, adding that Facebook isn’t the only social network to find itself on the frontlines of free-speech battles. At a time when technology is moving faster than the law, it’s impossible for any Internet provider to stay outside the fray.
Sure, it’s a bad idea to reveal an extra-marital affair via Facebook message, or post status updates about a verdict you’re deliberating. But, for some, it’s also the new normal. And if the courts continue allowing such seizures, then every post, tweet, or message creates a potentially ruinous paper trail.