Social Media

The New Social Contract: Twitter, Parler, Facebook and the Law

When we first use their service, consumer-facing technology platforms make us agree to their Terms of Service (TOS), which determines how we are and are not allowed to use their platform.

Social media companies have long struggled with balancing content moderation with the ability of the user to post the content they want to post. Yet the politically-charged times in which we live have extended this debate to technology companies outside the social vertical and has raised new questions as to the extent these companies should consider the context of the outside world in making the internal decisions as to what to allow and what to forbid.

Twitter: 330 million users

On Friday, January 9th, Twitter issued what they are describing as a “permanent suspension” of President Donald J. Trump’s twitter account.

Twitter had first locked but not removed President Trump’s account on Thursday after mandating that he delete certain offending tweets on Wednesday following the events at the Capitol building in Washington, D.C. Twitter said on Thursday that the suspension of President Trump’s account would last until the tweets were removed, and that any further violation of Twitter rules could result in a  permanent account suspension for Trump, which it did on Friday.

This is all uncharted territory because social media is still relatively young and it being used as a tool for world leaders to communicate to a massive audience is definitely new.

In a detailed public statement issued on Friday, Twitter goes into an in-depth explanation and assessment of President Trump’s tweets that led to his permanent suspension. Specifically, two of his tweets on Thursday were interpreted by Twitter in their public statement as having the intent to incite violence, as taken in the context of the week’s events:

On January 8, 2021, President Donald J. Trump Tweeted:

“The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!”

Shortly thereafter, the President Tweeted:

“To all of those who have asked, I will not be going to the Inauguration on January 20th.”

Having determined that these tweets violated their “glorification of violence policy,” Twitter made the suspension permanent.

Twitter had made exceptions to its rules before for President Trump, who had been granted a special exemption allowing him to tweet content that violated Twitter’s terms of service. The argument was that allowing this content to remain was in the public interest as it came from the President of the United States.

This is where things become complicated. When technology companies permit exemptions from their contractual terms of service, it not only polarizes public opinion, it weakens the strength of a contract that is supposed to be applied to all users in all circumstances.

Facebook and Instagram: 3.7 billion users

Having acquired Instagram in 2012, Facebook has long had the largest user base of any social platform.

Facebook founder and CEO, Mark Zuckerberg, wrote a Facebook post where he announced that President Trump would be banned from using both services:

“We believe the risks of allowing the President to continue to use our service during this period are simply too great,”

In the same post, Zuckerberg adds:

“Therefore, we are extending the block we have placed on his Facebook and Instagram accounts indefinitely and for at least the next two weeks until the peaceful transition of power is complete.”

While not a permanent ban at the moment, the foundation for the Facebook/Instagram ban is fundamentally the same – an online reckoning in the form of an indefinite suspension for using the service in what the service provider has deemed to be a harmful manner.

The issue here, which is exactly the same as in the Twitter situation, is how content moderation gets done. President Trump has made similar statements on the Facebook-owned platforms before – some arguably worse. So decisions about user violations of a platform’s rules and terms of service are never made in a vacuum but in context of the world around us and this can get very sticky very fast.

Parler: 1.5 million users

The situation with Parler is different than what happened with Twitter, Facebook and Instagram.

Here, Amazon, Google, and Apple all pulled their services from Parler – self-described as the “free-speech” app – because of the role of Parler users in organizing Wednesday’s events at the Capitol.

There is no way any social media application can exist without these fundamental services. They control everything, including how people download the app to their devices, how and where the data is transmitted – literally everything save the design of the site itself and the user experience.

The systematic dismantling of Parler, a comparatively new entrant to the social networking space, began soon after the events at the Capitol when Apple and Google withdrew Parler from their app stores, On Saturday, Amazon effectively killed off the platform by announcing that it would shut off the servers forParler, which ended up at least temporarily ceasing operations late Sunday.

As Parler scrambles to rebuild its technology infrastructure before its users migrate to an existing or new competitor, they will have to find a way to address the fundamental issue that drew Amazon’s ire. Amazon Web Services said that in recent weeks it has reported 98 examples to Parler of “posts that clearly encourage and incite violence.”

In a letter to Parler, Amazon lays out the terms of service violations:

“We’ve seen a steady increase in this violent content on your website, all of which violates our terms,” AWS wrote. “It’s clear that Parler does not have an effective process to comply with the AWS terms of service.”

It is interesting that the Parler situation is presenting at the same time as these platforms banning their highest-profile user. Parler’s business model is predicated upon as many users as possible users posting opinions that are at least on if not over the terms of service of the other platforms, but here it is Parler’s own service providers who objected. This is something interesting to watch moving forward in a technology landscape that will become even more crowded.

Salesforce: 2.1 million users

While Salesforce has 2.1 million users, only 150,000 are paid users. However, Salesforce generates $17 billion annually, which makes it a massive force to be reckoned with. And this week it decided to enter the same fray as these other technology companies, in their words, having  “taken action” to stop the Republication National Committee from sending emails that could incite violence. The RNC has been using ExactTarget – a Salesforce tool – to send emails to their user base.

This action, first reported on January 11th in Vice, is the Salesforce response to the Trump campaign having sent an email hours before Wednesday’s events at the Capitol, urging supporters to “step up RIGHT NOW” and “defend the integrity of this Election.”

This is a more difficult decision to dissect at the moment as Salesforce is being intentionally vague about what the action is that they have taken against the RNC and whether it would also affect President Trump personally or his campaign. Surely, more on this will unfold in the following days.

A Slippery Slope?

Isn’t it a bit of a slippery slope if service providers such as Apple, Google and Amazon can withdraw service to technology platforms because they don’t agree with the nature of the content?

Brian M. Marchese, a lawyer with Marrone Law in Philadelphia, said:

“This question really goes to the bounds of Section 230 of the Communications Decency At and why it exists.”

Section 230 states that:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Section 230 provides immunity from liability for providers and users of an “interactive computer service” – Twitter, Parler, Facebook, and Instagram would absolutely qualify – that publish information provided by third-party users,(such as those who Tweet.

When asked whether the current and perhaps future banning or suspension of public figures from these social media platforms could have a chilling effect upon free speech, Marchese felt strongly that it did.

“Absolutely yes and it really leads us to the question of whether there should be limits to what these platforms can do as private companies where they are also essentially monopolies.”

Echoing this, a legislative counsel member of the American Civil Liberties Union (ACLU) warned that the suspension of Trump’s social media accounts wielded “unchecked power,” by Twitter and Facebook.

Always Understand the Terms of Service

When we use any technology, whether is it email, social media, online shopping, or a content management system, we first agree to their terms of service before we are allowed to begin to use their offering.

Much of what we are allowed to use online doesn’t require us to pay to use it. But the idea that anything is free when it comes to technology may be an illusion. There is always something that we give up in exchange and that contractual relationship is always set forth in the terms of service. Always understand what you are agreeing to, as that will help inform your decision as to whether this is a technology you personally want to use.

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