By Oset Babur
The First Amendment is not unlike the most popular girl in high school; constantly mentioned and cited, yet she is changing rapidly to fit the trends of her time, which in return keep her at the forefront of (popular) news. The founding fathers could not have anticipated the shifting implications of protecting ‘freedom of press’ and ‘freedom of speech’ in the twenty-first century, all the way to the Autocorrecting keys of some debatably capable two hundred and seventy one million active monthly users. However, the current discussion over social media and the First Amendment needs to be spread between protecting the rights of the masses to post, re-blog and interact while ensuring that they can do so within the confines of the law. Subsequently, governments who abuse social media to censor their populations must also be dealt with from a legal standpoint: but what governing body or individuals can oversee the Twittersphere, or the worldwide Newsfeed? NYU’s Clay Shirkey elaborates on this discussion in Here Comes Everybody: The Power of Organizing Without Organizations, noting that mass amateurization is the buzzword of our generation, meaning everyone is suddenly a media outlet from the comfort of their bedrooms; fittingly, Twitter’s terms of service remind users in its fine print that ‘what you say on Twitter may be viewed all around the world instantly. You are what you Tweet!’ With this kind of rationale comes a need for further enumeration of responsibility on the Twittersphere and similar sites, especially given the multitudes of data stored in their servers— and the demand for this information.
With landmark First Amendment cases like New York Times & Co. v. Sullivan in the distant past, today’s mass media is changing the legal perspective on terms like libel, slander and originality one Tweet at a time. The responsibility for a free, legal therefore falls on an unlikely duo: lawyers at organizations like Google and Facebook and modern activists who use social media as their battleground.
This battleground has also become an easy tool with which governments control and repress their populations. In Turkey, the reigning Ak Parti government (AKP) banned Twitter days before municipal elections in March 2013. The ban was followed by further threats from Prime Minister Erdogan who suggested that Facebook and YouTube were next on the list of lies to stamp out against his campaign. The latter came to fruition. Twitter was inaccessible in Egypt during the Arab Spring. In response, engineers at Twitter and Google teamed up to announce Speak to Tweet, a much-needed service that enabled users to phone in a tweet by leaving a voicemail with appropriate hashtags, keeping Egyptian activists connected and informed throughout the shutdown.
Bearing these recent uses and abuses in mind, the question is clear: what can sites like Twitter do, legally and ethically, in response to government gag orders and undisguised censorship? At the 2011 Web 2.0 Summit in San Francisco, Dick Costello proclaimed that Twitter ‘is a sphere in which freedom of speech is prioritized, and users should feel at home during times of civil unrest.’ Public statements and corporate mission aside, the site has served as a resource for authoritarian regimes to research, pinpoint and roundup civilians who have expressed dissent. Twitter has tried to diplomatically straddle the grey line between acting as the people’s forum and abiding by as many national laws as its two hundred and seventy-one monthly users hail from. Twitter’s chief counsel, Alex Macgillivray left the company last year. Macgillivray (@amac) turned the First Amendment lens into profit, claiming Twitter’s edge in the social media sphere lay in the value placed in the user’s voice. The identity crisis that major social media platforms like Twitter and Facebook must confront threatens to undermine both the brand’s image with users, and its ability to survive. Macgillivray’s ideal of ethical profit is challenged by the company’s $30 billion valuation. After all, it is hard to be the voice of the scorned masses while employing senior marketing executives from Facebook to step up revenues and also fielding calls from governments demanding information surrender data involving perpetrators of domestic and international crimes. So the question remains: how does a social media brand like Twitter remain cool, legal and profitable while sidestepping forces wishing to use it for misinformation and suppression?
Arguably, it cannot— not without help. Networked social movements must take into account that while Twitter may be the battleground beneath their keys, vigilance is required on their behalf to ensure that their participants remain protected, especially when Twitter and Facebook cannot resist corporation or government demands for user information. Users in countries that have been targeted by social media censorship need to get creative by using sites like Tor, which protect anonymity online. Furthermore, users need to learn to trust the sites that they choose to submit personal information and content to, because they do in fact deserve the benefit of the doubt many more times than not. In December 2011, Twitter forwarded a subpoena request to the owner of an account being investigated by the Suffolk Massachusetts District Attorney’s office for involvement with the Occupy Boston protests, completely disregarding explicit government requests that it refrain from doing so in order to “protect the integrity of the ongoing criminal investigation.” Twitter has fought for the right to inform its users before handing over sensitive data to police investigations, which has not been the most common response of similar sites.
The First Amendment is getting the most action today via technology companies, whose lawyers have an incredible task of honoring their roles as protectors of both the Bill of Rights and their payroll. Silicon Valley may be replacing Washington D.C., but it’s not alone, as users of the sites created by these companies come from the most remote parts of the world. The scope of responsibility on the Internet needs to be shared between users and the legal teams at companies that host their information. Neither must be willing to betray the other, for this would produce the most dangerous result: a scenario that echoes the Wiki-Leaks snafu of 2012, in which users lost trust in the Internet as a tool against ‘abridging the freedom of speech, and infringing on the freedom of the press.’
Oset Babur is a Public Policy & Communications intern at the EastWest Institute's New York Office. Follow her (@baburoset).
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