April 17, 2014

Grayson Barber

Grayson Barber is a Fellow at the Center for Information Technology Policy at Princeton University. A First Amendment litigator and privacy advocate with a solo practice in Princeton, New Jersey, Grayson does volunteer work for the American Civil Liberties Union and chairs the privacy committee of its New Jersey affiliate. Grayson advises the Intellectual Freedom subcommittee of the New Jersey Library Association, and is the immediate past chair of the Individual Rights Section of the New Jersey State Bar Association. She served on the New Jersey Privacy Study Commission and the state Supreme Court Special Committee on Public Access to Court Records. A graduate of Rutgers Law School in Newark, Grayson clerked for the Honorable Robert E. Cowen, U.S. Court of Appeals for the Third Circuit.

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A "Social Networking Safety Act"

At the behest of the state Attorney General, legislation to make MySpace and Facebook safer for children is gaining momentum in the New Jersey State Legislature.

The proposed Social Networking Safety Act, heavily marked-up with floor amendments, is available here. An accompanying statement describes the Legislative purpose. Explanations of the floor amendments are available here.

This bill would deputize MySpace and Facebook to serve as a branch of law enforcement. It does so in a very subtle way.

On the surface, it appears to be a perfectly reasonable response to concerns about cyberbullies in general and to the Lori Drew case in particular. New Jersey was the first state in the nation to pass Megan’s Law, requiring information about registered sex offenders to be made available to the public, and state officials hope to play a similar, pioneering role in the fight against cyberbullying.

The proposed legislation creates a civil right of action for customers who are offended by what they read on MySpace or Facebook. It allows the social network provider to sue customers who post “sexually offensive” or “harassing” communications. Here’s the statutory language:

No person shall transmit a sexually offensive communication through a social networking website to a person located in New Jersey who the actor knows or should know is less than 13 years of age, or is at least 13 but less than 16 years old and at least four years younger than the actor. A person who transmits a sexually offensive communication in violation of this subsection shall be liable to the social networking website operator in a civil action for damages of $1,000, plus reasonable attorney’s fees, for each violation. A person who transmits a sexually offensive communication in violation of this subsection shall also be liable to the recipient of the communication in a civil action for damages in the amount of $5,000, plus reasonable attorney’s fees, or actual damages…

The bill requires social network providers to design their user interfaces with icons that will allow customers to report “sexually offensive” or “harassing” communications:

A social networking website operator shall not be deemed to be in violation … if the operator maintains a reporting mechanism available to the user that meets the following requirements: (1) the social networking website displays, in a conspicuous location, a readily identifiable icon or link that enables a user or third party to report to the social networking website operator a sexually offensive communication or harassing communication transmitted through the social networking website.

Moreover, the social network provider must investigate complaints, call the police when “appropriate” and banish offenders:

A social networking website operator shall not be deemed to be in violation … if … (2) the operator conducts a review, in the most expedient time possible without unreasonable delay, of any report by a user or visitor, including investigation and referral to law enforcement if appropriate, and provides users and visitors with the opportunity to determine the status of the operator’s review or investigation of any such report.

Finally, if the social network provider fails to take action, it can be sued for consumer fraud:

[I]t shall be an unlawful practice and a violation of P.L.1960, c.39 (C.56:8-1 et seq.) [the state Consumer Fraud Act] for a social networking website operator to fail to revoke, in the most expedient time possible without unreasonable delay, the website access of any user or visitor upon receipt of information that provides a reasonable basis to conclude that the visitor has violated [this statute]“

So what’s the problem? It’s not a criminal statute, and we do want to shut down sex offenders and cyberbullies. How could anyone object to this proposed measure?

First, the proposed law puts a special burden on one specific type of technology. It’s as if the newfangledness of social networking—and its allure for kids—have made it a special target for our fears about sex offenders and cyberbullies. No similar requirements are being placed on e-mail providers, wikis, blogs or the phone company.

Second, it deputizes private companies to do the job of law enforcement. Social network providers will have to evaluate complaints and decide when to call the police.

Third, it’s the thin edge of the wedge. If social network providers have to investigate and report criminal activity, they will be enlisted to do more. Today, sex offenders and cyberbullies. Tomorrow, drug deals, terrorist threats and pornography.

Fourth, this raises First Amendment concerns. Social network providers, if they are called upon to monitor and punish “offensive” and “harassing” speech, effectively become an arm of law enforcement. To avoid the risk of lawsuits under the Consumer Fraud Act, they will have an incentive to ban speech that is protected under the First Amendment.

Fifth, the definitions of “offensive” and “harassing” are vague. The bill invokes the “reasonable person” standard, which is okay for garden-variety negligence cases, but not for constitutional issues like freedom of speech. It’s not clear just what kinds of communication will expose customers to investigation or liability.

If the bill is enacted, MySpace and Facebook could mount a legal challenge in federal court. They could argue that Congress intended to occupy the field of internet communication, and thus pre-empt state law, when it adopted the Communications Decency Act (CDA), 47 U.S.C. § 230(c)(1).

The bill probably violates the Dormant Commerce Clause as well. It would affect interstate commerce by differentially regulating social networking websites. Social networking services outside New Jersey can simply ignore the requirements of state law. Federal courts have consistently struck down these sorts of laws, even when they are designed to protect children.

In my opinion, the proposed legislation projects our worst fears about stalkers and sex predators onto a particular technology—social networking. There are already laws that address harassment and obscenity, and internet service providers are already obliged to cooperate with law enforcement.

Studies suggest that for kids online, education is better than restriction. This is the conclusion of the Internet Safety Technical Task Force of State Attorneys General of the United States, Enhancing Child Safety and Online Technologies. According to another study funded by the MacArthur Foundation, social networking provides benefits, including opportunities for self-directed learning and independence.

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Counting Electronic Votes in Secret

Things are not looking good for open government when it comes to observing poll workers on Election Night. Our state election laws, written for the old lever machines, now apply to Sequoia electronic voting machines. Andrew Appel and I have been asking a straightforward question: Can ordinary members of the public watch the procedures used by poll workers to count the votes?

I submitted a formal request to the Board of Elections of Mercer County (where Princeton University is located), seeking permission to watch the poll workers when they close the polls (on Sequoia AVC Advantage voting computers) and announce the results. They said no!

The Election Board said this election is “too important” to permit extra people in the polling place.

They even went so far as to suggest that my written application was fraudulent. I applied on behalf of five people: two Princeton University students, two professors, and myself. In an abundance of caution, I requested authorization in the form of “challenger badges” which the Board of Elections can issue at its discretion. By phone, I explained our interest in merely watching the poll workers.

Of course we understand that they might not want extra people getting in the way on Election Night — that’s why we took measures to get special authorization. To ensure that we could be lawfully present, we asked for challenger badges as non-partisan proponents and opponents of two Public Questions on the ballot, as permitted by NJSA 19:7-2. My request was entirely in compliance with state law, as all the prospective challengers are registered to vote in Mercer County.

In spite of this, the Board expressed reluctance, based on the identities of the prospective challengers. In particular, they cited Andrew’s status as an expert on Sequoia voting machines as a “concern,” and provided assurances that Sequoia has fixed all the problems he identified in past elections.

Other counties in New Jersey permit members of the public to watch the poll workers “read” the election results. Combined with Judge Feinberg’s decision to suppress Andrew’s report on the security of the Sequoia machines, Mercer County conveys the unfortunate impression it does not welcome scrutiny of its electronic voting process.