April 24, 2014

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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.

Comments

  1. DoctorJay says:

    Why is the NJ Legislature wasting their time with this? I guess it’s an attempt to look like they’re doing something, when it’s really ineffectual. If it’s a response to the Lori Drew case it wouldn’t even apply, because that was a case of fraudulent identity, not sexual offensive content.

    “It’s not clear just what kinds of communication will expose customers to investigation or liability.” Exactly.

  2. Anonymous says:

    “Hello Facebook, how can I help you? I’m sorry what? You want us to change our international website to meet the requirements of New Jersey??! Please call our New Jersey office for that information. Thank you have a good day.”

    —10 minutes pass—

    “Hello Facebook, how can I help you? Oh, hi, you again. Yeah, no, there isn’t a New Jersey office of Facebook. You figured that out huh? Well – how about….. .if you don’t like our website then you can encourage your constituents not to use it. I tell you what – we’ll even add a line to the terms and conditions stating that New Jersey users may be in breach of state law by using our service?? How’s that? No. No, we’re not. No, we’re not going to be changing our website to suit your state law.”

  3. Anonymous says:

    “Social networking services outside New Jersey can simply ignore the requirements of state law.”

    If they can figure out a way of locking out all New Jersey residents from visiting their page lest they find themselves dragged to New Jersey to face a local court when a local resident invokes the state law.

    Illogical but I seem to remember similar things happening.

  4. Anonymous says:

    So let me see if I understand this. If I have a friend who is 20 years old and I go to her myspace page and post a comment along the lines of, “Damn, you looked hot today at school. I sure would like to eff you,” and she happens to have a profile that is public and somewhere in NJ a 13-year-old sees this “offensive” comment, I could be sued in NJ? And that myspace would have the same powers as law enforcement in NJ?

  5. Scott says:

    It really is a waste of time. Has New Jersey fixed so many of the problems with the state that they are just looking for something to do? How about passing a law that requires parents to ask their children if someone is harassing them, teach them to not give out personal information and how to use the “Ignore” and “Block” buttons.

  6. rp says:

    Do you think we should tell the Jersey legislature about this strange new social-interaction tool called “texting”? After that, we’ll tell them about parks and playgrounds.

    On the other hand, there’s no question that there’s going to be some liability here, and the law has to adapt to fit. (Think what would happen, for example, if the owner/manager of a shopping mall regularly allowed some people there to harass or assault others. As soon as you had a serous bad outcome you’d have suits all over the place.)

  7. Anonymous says:

    In English, please, Raivo. Most of us here can’t understand a single word of your comment.