Filmmakers and Others Take on the U.S. Government Over Social Media Surveillance

On May 31, 2019, the United States Department of State implemented new registration rules which required visa applicants to disclose all of their social media identifiers, including anonymous ones, which they used during the five years prior to their application on twenty social media platforms, including Facebook, YouTube, Twitter, LinkedIn, and several foreign social media sites. The requirements also applied to people already living in the United States who applied for new visas.

On December 15, 2019, plaintiffs (the Doc Society, a non-profit organization which supports documentary filmmakers, and the International Documentary Association, a non-profit of association of documentary filmmakers) filed suit against Secretary of State Michael R. Pompeo and Acting Homeland Security Secretary Chad F. Wolf, seeking (1) a declaration that the registration requirements violated the Administrative Procedures Act and the First Amendment, (2) an injunction to prohibit enforcement of the registration requirements, and (3) an order expunging all information collected to date as a result of the registration requirements.

The government filed a motion on April 15, 2020 to dismiss the action for lack of jurisdiction and for failure to state a claim and the plaintiffs opposed the motion on May 27. Several amicus curiae briefs were filed in opposition to the motion on behalf of, among others, Twitter, Reddit, and the Electronic Frontier Foundation. The government filed its reply papers on June 10, 2020 and a decision on the motion is expected soon.

Regardless though of how the district court rules on the motion, it is highly likely that an appeal will follow in this important challenge which pits the plaintiffs’ civil liberty rights against the government’s social media surveillance practices in the name of national security.

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For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.

Facebook is no Stranger to the U.S. Supreme Court

In its March 31, 2020 Form 10-Q filed with the SEC, Facebook reported that it was involved in multiple class and derivative actions as well as “various other legal proceedings” which include law enforcement and regulatory inquiries, investigations and other claims that arise in the ordinary course of business. Facebook also acknowledged it “may in the future be subject to additional legal proceedings and disputes” and stressed that it would vigorously defend itself as needed. This may be an understatement because a docket search on the U.S. Supreme Court’s website shows that Facebook has been involved in 27 appeals to the Supreme Court as a litigant or an amicus curiae since 2010. Two of those cases came to fruition – one in favor of Facebook and one against – on May 18, 2018.

In the first case, Stuart Force, et al. v. Facebook, Israeli victims of a Hamas terrorist attack in Israel, sued Facebook in the Eastern District of New York on July 10, 2016, alleging that Facebook unlawfully assisted Hamas by allowing it to post content which encouraged terrorist attacks in Israel. The district court dismissed the action based on §230 of the Communications Decency Act, which protects internet services, like Facebook, from liability based on words used by third parties who use their platforms. On July 31, 2019, the U.S. Court of Appeals for the Second Circuit affirmed, and, on May 18 2020, the Supreme Court denied the plaintiffs’ petition for a writ of certiorari.

Facebook was not so fortunate in the second case – Facebook, Inc., et al. v. Superior Court of San Francisco County. There, the Superior Court of California held Facebook and Twitter in contempt and fined them each $1,000 for refusing to disclose their account holders’ electronic communications in response to a subpoena from two criminal defendants. Even though the social media services argued that complying with subpoenas would violate the Stored Communications Act,  which relates to the disclosure of stored wire and electronic communications and transactional records held by third-party internet service providers, the court still ordered production of the documents and issued contempt sanctions and fines when the social media sites refused to comply. The California Court of Appeal ultimately vacated the production order, but did not vacate the contempt order. California’s Supreme Court rejected the petition for review so the two social media platforms filed a writ for a petition of certiorari with the U.S. Supreme Court on February 7, 2020, seeking to overturn the contempt findings and $1,000 fines. The Court denied the petition for certiorari on May 18.

These two cases confirm that Facebook, whether as a plaintiff or defendant, takes litigation seriously regardless of the issue or amount in dispute. The cases also demonstrate that litigants who take on the social media giant should be prepared for both a costly legal battle and being in it for “the long haul.”

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For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.

The President Goes on the Offensive Against Social Media Platforms

On May 26, 2020, for the very first time, the social networking service Twitter added a label to two tweets by President Donald Trump which refuted the President’s claims about voter fraud in California. Several days later, Twitter permitted a tweet by the President about protests in Minneapolis to remain accessible with another label stating that the tweet “violated Twitter Rules about glorifying violence.”

The President quickly responded with a series of tweets which claimed that Twitter’s fact-checking of him “was interfering in the 2020 Presidential Election,” that “Twitter is completely stifling FREE SPEECH” and that he, as president, “will not allow it to happen,” and, referring to major social media platforms, stated that “We will strongly regulate, or close them down.”

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Social Media Collides with New Jersey’s RPCs

Facebook launched in February 2004.  Twitter launched in July 2006. Instagram launched in October 2010. But New Jersey Rule of Professional Conduct 4.2 (Communication with Persons Represented by Counsel) predates all of the above social media platforms. Adopted originally in 1984 and amended in June 1996 and again in November 2003, RPC 4.2 currently provides in relevant part as follows:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter.

On April 30, 2020, a four-person majority of the New Jersey Supreme Court’s Disciplinary Review Board (“DRB”) recommended to the Supreme Court that a New Jersey attorney receive an admonition for instructing a paralegal to “friend” an adverse, represented party on Facebook in order to gather non-public information about the individual, a plaintiff in a personal injury action. That plaintiff ultimately became aware that the attorney’s office had contacted him through Facebook without first contacting his attorney, and, claiming that the contact violated the RPCs, filed an ethics grievance against the lawyer.

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A First Amendment Win for YouTube!

Image of censored stampThe January 16, 2019 post – Will Social Media Websites Become State Actors? – wondered how the U.S. Supreme Court would rule in Community Access Corp. v. Halleck, a case in which the Court was asked to consider whether the mere hosting of speech by others could transform a private entity into a “state actor” for purposes of the First Amendment.

The Supreme Court answered this question on June 17, 2019, holding that the First Amendment “prohibits only governmental abridgement of speech . . . [and] does not prohibit private abridgement of speech.” 139 S.Ct. 1921, 1928 (2019). The Court also held that “merely hosting speech by others . . . does not transform private entities into state actors subject to the First Amendment.” Id. at 1930.

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Twitter Required to Litigate in Virginia Rather than California

Law App IconCompanies that interact with consumers from other jurisdictions typically include forum selection clauses in their agreement/terms of use.  In the event of a dispute with a consumer, these clauses allow the company to choose a forum that is most convenient in order to obtain a “home field advantage.” For example, a company may find it advantageous to appear before a local court as its counsel may be more familiar with the local rules and judges in that particular venue.

Social media companies like Twitter, Facebook, Instagram and YouTube each include a “forum selection clause” in their terms of service agreements which provide that disputes or claims brought against these social media platforms must be brought in California’s state or federal courts. Although these clauses are generally deemed enforceable, Congressmen Devin Nunes, who hails from California, recently overcame the obstacle of a forum selection clause in a lawsuit he filed against Twitter in Virginia, notwithstanding Twitter’s position that the suit had to be filed in California.

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The Ninth Circuit Takes On Web Scraping

LinkedIn Icon“Web scraping” involves the use of software to collect data from the internet, which can then be sold to other users. On September 9, 2019, the United States Court of Appeals for the Ninth Circuit issued a decision in hiQ Labs, Inc. v. LinkedIn Corp., No. 17-16783, holding that LinkedIn could not deny a web scraping company access to publicly available LinkedIn member profiles.

hiQ is a data analytics company that uses automated bots to “scrape” information which LinkedIn members include on their public profiles for the purpose of selling the collected data to hiQ’s business clients. LinkedIn sent hiQ a cease and desist letter, demanding that it stop collecting data from LinkedIn’s server. A California district court preliminarily enjoined LinkedIn from denying hiQ access to publicly available information in LinkedIn’s members profiles, and the Ninth Circuit affirmed.

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Social Media Platforms Under Attack in the Senate

Mobile Phone Icons of Social MediaOn June 7, 2019, the United States Court of Appeals for the District of Columbia Circuit held that §230 of the Communications Decency Act (“CDA”), 47 U.S.C. §230 (c)(1) provided immunity from suit to Google, Microsoft and Yahoo! when they are sued for re-publishing content on their websites which is provided by a third-party. Marshall’s Locksmith Service Inc. v. Google, LLC, 2019 U.S. App. LEXIS 17123, No. 18-7018 (D.C. Cir. June 7, 2019). Less than two weeks later, U.S. Senator Josh Hawley (R-MO) introduced legislation – the “Ending Support for Internet Censorship Act” – to remove the §230 immunity that protects companies such as Facebook, Twitter, Google, and the like unless such companies prove to the Federal Trade Commission (“FTC”) that their content moderation is politically neutral.

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AFFIRMED: President Trump Cannot Block Critics on Twitter

Donald_Trump_Official_PortraitThe June 14, 2018 post “The President May Not Block Twitter Followers Because They Disagree With Him Politically” reported how, in the decision of the District Court in Knight First Amendment Inst. at Columbia University v. Trump, 302 F.Supp.3d 541 (S.D.N.Y. 2018), the court found that the President’s decision to block certain social media users from accessing his Twitter account was unconstitutional viewpoint discrimination. On July 9, 2019 a unanimous three-judge panel of the United States Court of Appeals for the Second Circuit affirmed.

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Appeals Courts Consider Whether Elected Officials Can Block Critics on Social Media

Law App IconOn March 26, 2019, the United States Court of Appeals for the Second Circuit heard oral argument in Knight First Amendment Inst. at Columbia University v. Trump, No. 18-1691 (2d Cir.), a case which will decide whether President Donald Trump can block people from seeing what he posts on Twitter.  (See Trending Law Blog, June 14, 2018).

Although the Second Circuit has not yet issued its decision, in a similar case, the United States Court of Appeals for the Fourth Circuit ruled on January 7, 2019 that the Chairman of the Loudoun County Board of Supervisors – an elected official – violated the First Amendment when she temporarily blocked a constituent on Facebook.  See Davidson v. Randall, No. 17-2002 (4th Cir. Jan. 7, 2019).  In the unanimous decision of the Fourth Circuit, the court held that elected officials may not block critics on social media accounts used for official business.

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