Social Media and Open Sunshine Laws
As conversations in the Digital Age increasingly occur on online, some wonder whether elected officials may be in violation of state sunshine laws when they debate topics on social media rather than at an officially scheduled meeting. According to the Miami Herald article below,
Florida has a broad open government law, known as the Sunshine Law, that applies to any conversation between officials who belong to the same elected body, even if the conversation takes place online in a public forum.
While it’s not illegal for public officials to post about city business on social media, responding to another official’s post could be a violation of the Sunshine Law, said Frank LoMonte, director of the University of Florida’s Brechner Center for Freedom of Information.
“The [Florida] attorney general’s office has taken the position that an exchange of views among members of an elected board in any medium, even an online one, qualifies as a ‘meeting’ for purposes of Florida’s open-meetings law,” LoMonte said in an email. And any public meetings have to be open to the public and advertised ahead of time…
This article may cause some to rethink certain laws with respect to how elected officials now communicate with each other and the general public.
MiamiHerald.com: When public officials fight on Facebook, are they breaking the law?
The availability of almost limitless sets of digital information has opened a vast marketplace of ideas. Information service providers like Facebook and Twitter provide users with an array of personal information about products, friends, acquaintances, and strangers. While this data enriches the lives of those who share content on the internet, it comes at the expense of privacy.
Social media companies disseminate news, advertisements, political messages, while also capitalizing on consumers’ private shopping, surfing, and travel habits. Companies like Cambridge Analytica, Amazon, and Apple rely on algorithmic programs to mash-up and scrape enormous amounts of online and otherwise available personal data to micro-target audiences. By collecting and then processing psychometric data sets, commercial and political advertisers rely on emotive advertisements to manipulate biases and vulnerabilities that impact audiences’ shopping and voting habits.
The Free Speech Clause is not an absolute bar to the regulation of commercial intermediaries who exploit private information obtained on the digital marketplace of ideas. The Commerce Clause authorizes passage of law to regulate internet companies that monetize intimate data and resell it to third parties. Rather than applying strict scrutiny to such proposed regulations as one would to pure speech, judges should rely on intermediate scrutiny to test statutes limiting the commercial marketing of data.
Legislative reforms are needed to address the substantial economic effects of massive, commercial agglomeration of data files containing histories, daily routines, medical conditions, personal habits, and the like. To address this logarithmically expanding cyber phenomenon, Congress should temporally restrict the retention and trade in private data. Internet intermediaries should not be immune from such a restriction on private data storage. For such a policy to be effective, safe harbor provisions shielding internet intermediaries should be modified to allow for civil litigation against internet companies that refuse a data subject’s request to remove personal information no longer needed to accomplish the transaction for which it was originally processed.
Photo: Galveston County Jail (Houston Chronicle)
Former Galveston County judge, Christopher Dupuy, was sentenced to six years in prison yesterday after being convicted of going online and impersonating two former girlfriends. Dupuy’s impersonations took the form of bogus sex-for-hire ads and included language like “very fetish friendly.”
Yelp got caught in the middle of a years-long legal dispute when a dissatisfied former client of a California law firm left angry reviews on the firm’s Yelp page. The law firm sued the woman for defamation and won via default judgment when she didn’t show up to court. When the woman was non-responsive to a court order to take down the posts, the superior court tried to order Yelp to do it for her.
Yelp refused to remove the content and cited Communications Decency Act section 230, the federal statute that generally shields social media sites from “liability” for user-uploaded content. But does simply asking Yelp to take down content constitute the type of “liability” that CDA 230 is meant to prevent? The ensuing litigation and appeals from 2013-2018 tested the contours of CDA 230, culminating in a split 4-3 decision by the California Supreme Court.
This Case Note overviews the lawsuit as it progressed through the state courts, starting at the superior court and ending (at least for now) at the California Supreme Court. All along, the justices weighed the competing interests of removing truly harmful content and protecting the public’s general freedom from censorship. Then, this Note evaluates these concepts as applied to this case and future cases.