Home » 2018 » May

Monthly Archives: May 2018

Using Facebook to Screen Out Job Applicants


Bloomberg has an interesting article discussing a pending lawsuit which accuses companies of using social media providers to screen out job applicants.

Bloomberg.com: Facebook Tools Are Used to Screen Out Older Job Seekers, Lawsuit Claims

Platform or Media Outlet?


Platform or Media Outlet?

The NY Times has an interesting article that examines efforts by Paul Tweed to sue Facebook and Twitter. According to Wikipedia, Mr. Tweed, an international lawyer, is “one of the best media lawyers in the world.”  Much of the article examines a recurring question about social media providers: are they platforms or media outlets?  Increasingly, it appears that some social media providers, especially the larger ones, are more akin to media outlets than platforms.  The question is an important one because the more social media platforms appear to be media outlets the increased likelihood that they will be stripped of immunity and sued like a newspaper, television station etc., for content deemed defamatory.

NY Times:  Is Facebook Just a Platform? A Lawyer to the Stars Says No


CA SCT Levels the Discovery Playing Field for Criminal Defense Attorneys

CA SCT Levels the Discovery Playing Field for Criminal Defense Attorneys


Criminal defense attorneys have a reason to smile today.  Last week in Facebook v. Derrick Hunter, the California Supreme Court, in a unanimous precedent setting opinion, held that defense attorneys should be able to access public postings on social media accounts to assist with the defense of their clients.  For many years now, social media providers have refused to release such information citing the Stored Communications Act.  This ruling helps to level the discovery playing field, at least in California, between defense attorneys and prosecutors who have always had access to social media content via the warrant process.

The ‘Sovereigns of Cyberspace’ and State Action: The First Amendment’s Application (or Lack Thereof) to Third-Party Platforms

Jonathan Peters


The ‘Sovereigns of Cyberspace’ and State Action: The First Amendment’s Application (or Lack Thereof) to Third-Party Platforms


Many scholars have commented that the state action doctrine forecloses use of the First Amendment to constrain the policies and practices of online service providers. But few have comprehensively studied this issue, and the seminal article exploring “[c]yberspace and the [s]tate [a]ction [d]ebate” is fifteen years old, published before the U.S. Supreme Court reformulated the federal approach to state action. It is important to give the state action doctrine regular scholarly attention, not least because it is increasingly clear that “the private sector has a shared responsibility to help safeguard free expression.” It is critical to understand whether the First Amendment has a role to play in the private sector, as Internet companies continue to develop and enforce their own content rules—as “lawyers at Facebook and Google and Microsoft” exercise “more power over the future of . . . free expression than any king or president or Supreme Court justice.” They are the “sovereigns of cyberspace.” This Article analyzes the state action doctrine as it exists today, examining: (1) how it distinguishes the public and private spheres, and (2) whether it forecloses the First Amendment’s application to nongovernmental Internet companies, specifically third–party platforms like Facebook and Twitter. The Article concludes that the state action doctrine does foreclose such an application. And with that in mind, the author suggests a state action theory suitable for the digital world.

Can a “Like” serves as a threat of imminent physical harm?


Can a “Like” serves as a threat of imminent physical harm?

Yes, at least according to one Massachusetts appellate court.  In D.R. v. D.A. (17-P-39), a husband appealed the trial court’s issuance of a permanent abuse prevention order.  The order was based in part on a 2015 Facebook post made by the husband in which he described in dramatic narration how someone with the wife’s birth date would die. In 2016, a few days prior to the abuse prevention order extension hearing, the husband posted that he “liked” a birthday greeting that someone else had left on the wife’s Facebook timeline.

On appeal, the husband argued that that it was abuse of discretion for the judge to construe a Facebook “like” as a threat of imminent physical harm.  Unfortunately for the defendant, the appellate court did not find his argument persuasive.

Instead the high court determined that the husband ignore[d] the fact that the judge was entitled to interpret the husband’s “like” by reference to the totality of the circumstances[t]hose circumstances were such as to entitle the judge to interpret the husband’s “like” as a threat. The wife stated, both in her affidavit and at the hearing, that she remained in fear not only that the husband would physically harm her, but also that he would kill her. When determining whether that fear was reasonable, the judge was entitled to consider the years of escalating emotional, verbal, and physical abuse the wife described. The judge was also entitled to consider the husband’s Facebook post from the year before, which laid out in grim detail the death of a person with the wife’s same birth date. The judge could find significance in the timing of the posts as well, and could reasonably infer that the timing of the “like” would stand as a reminder to the wife of the alarming Facebook post from the previous year.

Further Erosion of Section 230


Further Erosion of Section 230

Here is another story from TechDirt about the courts chipping away at Section 230 protection for online sites.  This time it involves AirBnB and Homeway.

SESTA has done enormous damage to the critical protection Section 230 affords platforms – and by extension all the Internet speech and online services they facilitate. But it’s not the only threat: courts can also often mess things up for platforms by failing to recognize situations where Section 230 should apply and instead allowing platforms to be held liable for how their users have used their services…


Protecting Users of Facebook and Other Social Media

Margaret Ryznar


Protecting Users of Facebook and Other Social Media


In early 2018, a whistleblower again reminded the world of the dangers of social media, revealing that the 2016 United States presidential elections and the Brexit vote in the United Kingdom may have been influenced by “psychological warfare” on the public enabled by Facebook. The current frameworks for protecting the users of social media clearly do not work, which is why a new framework should be proposed. This essay examines the benefits and drawbacks of fiduciary duties and the duty of care frameworks in the context of social media. Its conclusion is that the duty of care best addresses the nuances of the modern day problem of data protection in the social media model. This framework would hold data holders responsible for data breaches while fitting their business model best.