Social networks, the defining cultural movement of our time, offer many freedoms. But as we work and shop and date over the Web, we are opening ourselves up to intrusive privacy violations by employers, the police, and aggressive data collection companies that sell our information to any and all takers.
Through groundbreaking research, Andrews reveals how routinely colleges reject applicants due to personal information searches, robbers use vacation postings to target homes for break-ins, and lawyers scour our social media for information to use against us in court. And the legal system isn't protecting us—in the thousands of privacy violations brought to trial, judges often rule against the victims. Providing expert advice and leading the charge to secure our rights, Andrews proposes a Social Network Constitution to protect us all. Now is the time to join her and take action—the very future of privacy is at stake.
Log on to www.loriandrews.com to sign the Constitution for Web Privacy.
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About the Author
Read an Excerpt
When David Cameron became Britain’s prime minister, he made an appointment to talk to another head of state—Mark Zuckerberg. Yes, that Mark Zuckerberg: the billionaire wunderkind, the founder of Facebook. At the meeting at 10 Downing Street, Prime Minister Cameron and Facebook President Zuckerberg discussed ways in which social networks could take over certain governmental duties and inform public policymaking.1
A month later, Zuckerberg and Cameron had a follow-up conversation, later posted on YouTube. Cameron, dressed in suit and tie, chatted with Zuckerberg, who wore a blue cotton T-shirt.2 “Basically, we’ve got a big problem here,” Cameron pointed out to Zuckerberg, describing the U.K.’s financial woes.
Zuckerberg outlined how Facebook could be used as a platform to decrease spending and increase public participation in the political process: “I mean all these people have great ideas and a lot of energy that they want to bring and I think for a lot of people it’s just about having an easy and a cheap way for them too to communicate their ideas.”
“Brilliant,” Cameron said.
Within a year, Zuckerberg had a seat at the table with government leaders. In May 2011, he attended the G8 Summit, the annual meeting of key heads of state (named after the eight advanced economies—France, the United States, the United Kingdom, Germany, Japan, Italy, Canada, and Russia).3 The media reported that world leaders from German Chancellor Angela Merkel to French President Nicolas Sarkozy were more in awe of Zuckerberg than he was of them.4 Zuckerberg summarized how Facebook had played a role in worldwide democratic movements and pressed his own policy agenda—urging European officials to back off of proposed regulation of the internet. “People tell me on the one hand ‘It’s great you played such a big role in the Arab spring, but it’s also kind of scary because you enable all this sharing and collect information on people,’ ” Zuckerberg said.
Is it odd to think of Mark Zuckerberg as a head of state? Perhaps. But Facebook has the power and reach of a nation. With more than 750 million members, Facebook’s population would make it the third largest nation in the world. It has citizens, an economy, its own currency, systems for resolving disputes, and relations with other nations and institutions. After watching the video chat between Cameron and Zuckerberg, I became intrigued by the concept of a social network as a nation. I began to wonder, what kind of government rules Facebook? What are its politics? And, if it is like a nation, should it have a Constitution?
People are drawn to Facebook, as early settlers are drawn to any new nation, by the search for freedom. Social networks expand people’s opportunities. An ordinary individual can be a reporter, alerting the world to breaking news of a natural disaster or a political crisis. Or an investigator, helping cops solve a crime. Filmmakers and musicians at the start of their careers can find large followings through social networks.
The power of people is harnessed in new ways on social networks. Art itself is redefined as bands and novelists post early works and use crowdsourcing to change the music, lyrics, and story lines. Anybody can be a scientist, participating in a crowdsourced research project. In the Galaxy Zoo project, members of the public classify data from a million galaxies and publish the results in scientific journals. Facebook itself uses crowdsourcing to translate its pages into foreign languages.
Social networks also provide new ways for people to interact with government. The White House asked its Twitter followers for comments on a tax law.5 An official from the National Economic Council then posted a blog with links to questions raised by the Twitter followers, eliciting a discussion about the direction tax policy should take. In 2011, the social network created by the city of San Francisco introduced a phone app that allowed citizens to take photos of potholes and other things that needed maintenance and upload them directly to the proper city office to order repairs. Through that same network, people with CPR skills can volunteer to help in an emergency. If someone has a heart attack on a golf course, a smart- phone app will recruit volunteers in the area based on their GPS position and ask them to rush over to Hole 7 to render aid.
And when people get fed up with their government, they can use Facebook, Twitter, and YouTube to incite others to join them in the streets to protest. While previous forms of political protest required a charismatic leader, that leader could be killed or his headquarters destroyed. It’s much more difficult to stop a widely dispersed group of antagonists such as the citizens of Facebook Nation. It’s harder to put out thousands of revolutionary fires burning across the Web.
Social networks have enormous benefits, helping us stay in touch with people from our pasts and introducing us to people who share our interests. They create a much-needed comfort zone. As philosopher Ian Bogost points out, “Public spaces in general have been destroyed, privatized, and policed in recent decades, but the public life of teens and young adults has been particularly damaged, due to additional fears of abduction, abuse, criminality, and moral corruption.”6 According to Bogost, social networks provide a place to hang out, akin to the main drag or the video arcade of the past.
Social networks have become ubiquitous, necessary, and addictive. Social networking is no longer just a pastime; it’s a way of life. People expect to be able to log on to Facebook or Myspace wherever they go and to tweet their every thought. Until recently, cell phones and internet use were banned in certain places, like courthouses, but now social institutions have largely abandoned their efforts to keep someone away from their Facebook friends or Twitter audience. As a result, there’s a whole new set of issues, with judges friending defendants, jurors looking up witnesses’ Facebook pages to assess their credibility, and lawyers blogging about confidential interchanges with their clients.
The military held out for a long time. In August 2009, the U.S. Marine Corps formalized its ban on marines’ use of Myspace, Facebook, and YouTube on its networks.7 The military’s concern was the same as it is with many of us—phishing, hacking, and other security breaches. But the stakes were much higher. It’s a hassle when you have to get a new credit card because your American Express number is hacked through PlayStation.8 But it’s much more serious if military design secrets are stolen by other countries or soldiers die when confidential battle plans are revealed.9
The military ban made sense except for two things. It was hard enough to get people to enlist in an all-volunteer armed services. But morale sank even lower when they were cut off from Facebook friends and Myspace family members. And the technology of armed conflict itself was demanding a link to the Web. For certain weapons to be used most effectively, soldiers need access to smartphone apps—such as iSnipe and Shooter—to estimate bullet trajectories. Another app allows soldiers to see the positions of friendly soldiers and enemy combatants on a map updated in real time.10 There’s even an app—Jibbigo—to translate a particular Iraqi dialect of Arabic.11 And another, Telehealth Mood Tracker, to measure a soldier’s mental health.12
In February 2010, the U.S. military embraced social networks in a big way. The military reconfigured its internet grid, NIPRNET (Non-classified Internet Protocol Router Network)—the largest private network in the world—to provide soldiers access to YouTube, Facebook, Myspace, Twitter, and Google apps.13 The army began issuing smartphones to soldiers to test the apps’ effectiveness both in and out of combat.14 In war zones, wireless networks on which to run the apps are brought into the field attached to vehicles, planes, or air balloons.15
Not just our soldiers but our global enemies are taking to social networks. A 2010 Department of Homeland Security Report entitled “Terrorist Use of Social Networking Sites: Facebook Case Study” found that jihad supporters and mujahedeen are increasingly using Facebook to propagate operational information, including improvised explosive device (IED) recipes in Arabic, English, Indonesian, Urdu, and other languages.16
A 2,000-member militant Islamic Facebook group includes informational videos on “tactical shooting,” “getting to know your AK-47,” “how to field strip an AK-47,” and so forth.17 Facebook pages for other extremist Islamist groups contain propaganda videos featuring wounded and dead Palestinians in Gaza, links to Al Qaeda YouTube videos, and videos promoting female suicide bombers, all of which can be accessed by the public without becoming a “fan” of the groups, “liking” the groups, or “friending” the Facebook pages.
Even criminals use the Web for everything from figuring out who to rob by checking Facebook posts containing the word “vacation” to using a search engine to train for murder. Sometimes virtually the whole crime can be reconstructed from a search history, as in the case of a nurse who killed her husband after Googling “undetectable poisons,” “state gun laws,” “instant poison,” “gun laws in Pennsylvania,” “toxic insulin levels,” . . . “how to commit murder,” “how to purchase hunting rifles in NJ,”. . . “neuromuscular blocking agents,” . . . “chloral hydrate,” “chloral and side effects,” and “Walgreens.”18
Facebook even facilitates real-time broadcasts of crimes in progress—and allows criminals to seek aid from friends. When Utah police tried to serve a warrant on Jason Valdez, a member of the Norteños gang, he barricaded himself in a motel room, taking Veronica Jensen as a hostage. With SWAT officers outside his motel room and in the adjoining rooms, Jason used his Android phone to post six status updates to Facebook, add 15 friends, respond to numerous comments on his wall posted by friends and family, and post a picture of himself and his hostage with the caption, “Got a cute ‘HOSTAGE’, huh?” A Facebook friend posted on Jason’s page that a SWAT officer was hiding in the bushes: “gun ner in the bushes stay low.” “Thank you homie,” Jason replied. “Good looking out.”19
Eight hours later, Jason posted his last update: “Well I was lettin this girl go but these dumb bastards made an attempt to come in after I told them not to, so I popped off a couple more shots and now were startin all over again it seems.” The standoff ended when SWAT officers used explosives to blast through the front door and through the wall from an adjoining room. The hostage was fine, Jason ended up in intensive care, and police are considering whether to charge Jason’s friend with obstruction of justice for warning him about the SWAT officer.20
It’s easy to understand why people flock to Facebook and other social networks. But it’s harder to anticipate what will happen to you when you become a citizen of this new world. If you were to move to a kibbutz in Israel, teach English in Japan, enlist in the army, or move to a rural farm, you’d have some sense of what you were getting into. When you join Facebook, you don’t know enough about the ramifications of social network citizenship to understand where that decision will lead and how it might transform you and your life. The governing rules of Facebook—its terms of service—shift rapidly and without warning. One day, it promises you that your friends are private; the next day, it makes them public.
One might think that Facebook enhances the Constitutionally protected freedom of association since it allows groups to form. Class of 1995 Reunion Committee. I Love Justin Bieber :)). Free the West Memphis Three. Yet people’s Facebook associations have been used against them. Judges have been disciplined for “friending” lawyers on Facebook, even though it is completely acceptable for judges to be friends with attorneys in real life. In one case, a prison guard in England was fired after he friended prisoners on Facebook.21
And a crucial part of the freedom of association is the right not to reveal your associations. In 1958, for example, the U.S. Supreme Court allowed the civil rights organization for African Americans, the NAACP, to keep its member list secret from the government of Alabama. The NAACP argued that compelled disclosure would “abridge the rights of its rank-and-file members to engage in lawful association in support of their common beliefs.”22 In deciding not to compel disclosure, the Court held that people might be afraid to exercise their freedom of expression and engage in collective action to further those beliefs if their membership in the organization was known. Exposing a person’s membership in a group could lead to “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”23
Yet social networks have revealed associations that people had expected to be private. When, without any notice, Facebook changed its policy in 2009 so that lists of friends and affiliations were made public and no longer subject to people’s privacy controls, the repercussions were felt around the world. In Iran, authorities questioned or detained the Facebook “friends” of Tehran’s U.S.-based critics. People were beaten. Americans traveling to Iran were detained and had their passports confiscated just for having a Facebook page.
Unlike in a democracy, Facebook is unilaterally redefining the social contract—making the private now public and making the public now private. Private information about people is readily available to third parties. At the same time, public institutions, such as the police, use social networks to privately undertake activities that previously would have been subject to public oversight. Even though cops can’t enter a home without a warrant, they scrutinize Facebook photos of parties held at high school students’ homes. If they see the infamous red plastic cups suggesting that kids are drinking, they prosecute the parents for furnishing alcohol to minors.
You might think you are posting information just to family members, but with a modest change in computer code, the privately run Facebook can send that information anywhere. Both inadvertently and through conscious decisions, Facebook and other social networks have put private information, including medical test results, credit card numbers, and sensitive photos into the wrong hands.
Unlike Vegas, what happens in Facebook doesn’t stay in Facebook.
The precursors to social networks were multiplayer online games, where people interacted through avatars they’d created that often bore no resemblance to the real person they represented. But what you do in today’s social networks doesn’t involve playing a role. And the implications are much greater than winning and losing loot, treasures, and experience points.
Unlike games and previous social networks, Facebook asks the user to submit his or her real name and email address. And the actions taken on Facebook and other social networks have real world consequences. Women have been fired because their Facebook posts showed them wearing provocative clothing. Straight-A students have been expelled from school for criticizing their teachers on Myspace. When, the day before a criminal trial, a cop posted on Myspace that his mood was “devious,” a parolee charged with gun possession used that post to persuade a jury that the cop had planted a gun on him.24
Colleges and companies routinely search Facebook and Myspace to determine whether to admit or to hire people. A background-checking service called Social Intelligence Corp. accumulates files on the Facebook photos and posts of any user with privacy settings marked “Everyone.”25 The company keeps each person’s file for seven years—so even if you delete that photo of you in your “Free Charlie Manson” shirt, you’re still going to have a hard time getting a job.
Artists have demonstrated how information posted on Facebook can be used out of context. Italian artists Paolo Cirio and Alessandro Ludovico created Lovely Faces.com, a fake dating website using information from publicly available Facebook profiles.26 They used software to copy people’s names, pictures, and locations from over a million Facebook profiles.27 Their software extracted 250,000 faces, and the artists used a facial recognition algorithm assessing features and expressions to classify the photos into six categories—social climber, easygoing, funny, mild, sly, and smug.28 Paolo and Alessandro discussed the impetus behind their project when it appeared at a Berlin art festival: “Being judged is the price everyone must pay to be involved in social networks. The project sneers at the trust that is brought to the platform by 500 million users, reminding them that there are—just as in the ‘real’ world—consequences to publishing intimate, personal information on social networks.”29
Our digital identities on the Web—email, personal websites, and social media pages—are starting to overshadow our physical identities. As we work and chat and date (and sometimes even have sex) over the Web, we are creating a digital profile of ourselves that redefines us—and could come back to haunt us.
Not only does Facebook make the private public, it makes the public private. Government officials used to have to obtain warrants to find out private facts about people. Now they can monitor Facebook postings and Google searches to gain access to intimate and revealing information about people. Law enforcement officials troll public profiles for clues to crimes or to anticipate emergency situations, like the Department of Homeland Security’s monitoring of the use of certain terms on social networking sites—terms ranging from “Organized Crime” to “Quarantine.”30 In its January 2011 initiative, the Department of Homeland Security listed 350 terms to be monitored, including “Pork,” “Vaccine,” “Pirates,” “Body Scanner,” “Guzman,” and even “Social Media.”
A 2008 U.S. Citizenship and Immigration Services memo even recommended friending citizenship petitioners to monitor the validity of their relationships, searching for evidence, for example, that a marriage doesn’t meet the department’s legitimacy standards.31 Noting that the “narcissistic tendencies in many people fuels a need to have a large group of ‘friends’ . . . provides an excellent vantage point for FDNS [Office of Fraud Detection and National Security] to observe the daily life of beneficiaries and petitioners who are suspected of fraudulent activities,” the memo also identified social networking sites popular among certain ethnic groups (such as MiGente.com, popular with Latinos, and Muxlim.com, popular among Muslims).32
Governments have even started crowdsourcing investigations. With ever- present cell phone cameras—and widely distributed computing power, citizens can go beyond watching cop shows to working cases themselves. When a scandal erupted in England about the expense reports of Members of Parliament, more than 450,000 pages of expense accounts were posted online. More than 28,000 people joined in the digital search for irregularities in the MPs’ spending.33
The State of Texas installed 29 surveillance cameras along the Texas-Mexico border (one camera for every 41 miles) and allowed anyone with an internet connection to monitor the border and alert the authorities about alleged illegal immigrants and drug traffickers.34 The website, powered by the social network BlueServo, allows people from all over the world to become “Virtual Texas Deputies.”35 On the website, instructions appear next to each camera’s feed, such as “Report anyone crawling through this culvert” or “Look for subjects on foot moving towards right.”36 A virtual deputy in Australia watches the border from a pub;37 a mom in New York spends four hours a day fixated on the desert images while caring for her infant daughter.38 And an Oklahoma woman, who visits BlueServo each night after work and also tracks bald eagles online, describes her involvement, “I watch eagles and illegals. That’s a fun thing to do.”39
Launched in November 2008 with a $2 million grant from the Texas governor’s office, the site attracted 130,000 virtual deputies in its first year.40 But a year later, and despite another $2 million grant from the governor, the project had resulted in a total of only 26 arrests—a cost of $153,800 per arrest—far short of the 1,200 arrests the State had projected.41 The project floods sheriffs’ offices with thousands of emails each week, describing an “armadillo by the water” or falsely reporting, “There are some men crossing the water. They have a bottle of tequila and a big hat with them.”42
Although supporters describe the virtual deputies as an “extra pair of eyes” for law enforcement, behind those eyes may be strong personal sentiments about the dangers of illegal immigration. As Texas State Senator Eliot Shapleigh observed, the cameras “invite extremists to participate in a virtual immigrant hunt.”43 Indeed, reports submitted by virtual deputies are often phrased in racist terms, such as “Two wetbacks and a dog walking across screen.”44 Critics of the project worry that the 24/7 surveillance cameras will encourage vigilantism—instead of reporting perceived illegal immigration, virtual deputies may “jump in their truck with a gun,” notes Jay Stanley of the American Civil Liberties Union.45
And BlueServo live streams images not only from the Texas-Mexico border but also from the streets of average American neighborhoods. The site allows people to connect their own cameras to the network to patrol their local neighborhoods.46Unlike the deserted lands along the border, trafficked largely by animals, neighborhood cameras may capture people engaged in a variety of routine activities, from teenagers kissing in a car to mothers spanking their children in the driveway. Because virtual deputies are not committed to the principles of just law enforcement, they are more likely to engage in selective reporting of incidences—getting back at a neighbor who plays loud music or targeting a member of a disliked population.
Some social networks, like 4chan (one of the internet’s most trafficked sites), have used the digital equivalent of deadly force to police society. When 4chan users discovered a video in which a teenager seemed to be abusing a cat, they vowed to track him down and have him arrested. The 4chan users watched other videos on the boy’s YouTube account and matched the background room details in one to a photo found on a social network site.47 The online manhunt continued to search for the boy on various social networks and finally found his Facebook page.48 They traced the boy to Lawton, Oklahoma, and reported him to the local police.
In other instances, 4chan members themselves have “punished” someone they think is an offender—by publishing the target’s address, hacking into his computer, and overwhelming him with crank calls and emails. When Sarah Palin was accused of violating campaign finance laws by using her gubernatorial email account to solicit funds, a college student hacked into Palin’s email account, published her password on the 4chan website, and circulated screenshots of the emails she was sending.49
Social networks are transforming the activities of cops and judges, often challenging cherished principles of democracy. Police sweep social networks for signs of misconduct and create fake profiles to befriend and monitor gang members.50 The IRS searches Facebook and Myspace profiles for evidence of taxable transactions and the whereabouts of tax evaders.51 Courts consider social network posts about a parent’s partying to be signs of parental neglect. Although such institutional uses may be touted as furthering law enforcement, they conflict with traditional due process rights and the principle that citizens should be free from constant scrutiny.
These trends raise troubling questions. Governments in democracies exist to protect their citizens and uphold their rights. Public health officials, like other government agents, are limited in the type of data they collect and publicize about citizens. Similarly, the police need probable cause and search warrants to collect evidence. Constitutional restrictions on governmental action apply. But what happens when state and federal agencies circumvent those rules by turning the job of evidence gathering over to private citizens using social networks—or ask the social networks themselves for private information from people’s photos and posts? Should that evidence also be subject to Constitutional constraints?
Google searches involving flu symptoms provide a better indicator of the geographic areas where a flu outbreak is spreading than do traditional public health measures.52 But should state and federal public health officials be allowed access to private searches? And what if they learn that someone is searching for information about a communicable disease? Should public health officials be able to track down that person and quarantine him? When citizen pseudo-cops reach the offender before the real cops do, what’s to prevent them from taking the law into their own hands? As the line between governments and social networks blurs, who should be held accountable when something goes wrong?
Facebook does more than just supplement governmental functions. Facebook is a nation in its own right. It has an economy. It has certain rules of governance. But unlike any democratic nation, its operating procedures are more like a computer manual than a Constitution. All the rights run in one direction. Facebook holds the cards, and its citizens have little recourse—other than to leave the service entirely. In fact, several federal laws—created for the internet before social networks were even contemplated—protect social networks from almost any liability. Because of these laws, social networks cannot be sued for invasion of privacy, defamation, or criminal acts based on people’s postings.
Social networks turn people’s private information into the networks’ own income streams. Facebook makes most of its money as an advertising platform.53 Facebook sells ad space on its site and helps advertisers personalize their advertisements and direct them toward specific members by using the information from the Facebook member’s profile and entries.54 Advertisers choose keywords or details—such as relationship status, location, interests, activities, favorite books, demographics, employment information—and then Facebook runs the ads for the targeted users.55 eMarketer estimated that Facebook earned $1.86 billion in advertising revenue in 2010.56
Facebook also makes money through revenue-sharing agreements with companies that offer the more than 550,000 applications that run on the site,57 including games such as Mafia Wars and FarmVille. In 2011, Facebook told all game developers that they will be required to accept payments through the social network’s new currency, Facebook Credits.58 This will have a significant impact on Facebook’s earnings because Facebook will keep 30% of the amount of the credits, gaining a sizeable chunk of the half-billion dollars earned annually by apps.59
Facebook is not the only company that capitalizes on the intimate information people post online. While a student at Stanford, Harrison Tang and his friends created Spokeo, a search technology that pulls together information about millions of identifiable individuals from social networks and far-flung areas of the Web.60 Spokeo not only compiles information from hundreds of online and offline sources—ranging from real estate listings to marketing surveys61—but it also uses that information to generate characterizations about individuals, such as “self-driven,” “donates to causes,” “has veterans in the house,” and “collects sports memorabilia.” By entering a person’s name on the Spokeo website, you can view the person’s address, home phone number (even if unlisted), age group, gender, ethnicity, religion, political party, marital status, family members, and education for free.62 Spokeo often includes a Google Maps image of the person’s residence.
Spokeo bills itself as “not your grandma’s white pages.”63 For less than five dollars a month,64 you can view more extensive information, including attributes of the person’s property (such as whether the property has a swimming pool or fireplace), lifestyle and interest information, and Spokeo’s assessment of a person’s wealth level (such as “bottom 50%”) and economic health (such as “average” “or “very strong”). The five-dollar-a-month subscription also permits a limited number of reverse searches using a person’s email address or user name.65 These searches can retrieve a person’s profiles on social networking sites and dating sites, playlist on Pandora, photos posted on sites like Flickr or PhotoBucket, videos posted on YouTube, blogs, and reviews of products on shopping sites like eBay,66 if those posts have not been protected by privacy settings. Spokeo’s “Enterprise” subscription, which costs $79.95 a month, allows the subscriber to search up to 1,000 email addresses and 1,000 user names each month.67
More than a million people search the Spokeo database each day68—making decisions about whether to hire people, grant them credit, or even have sex with them—based on what they read. Often the information is wrong, culled from erroneous or outdated sources and interpreted by imperfect algorithms. Yet the people whose privacy is being invaded may not even realize that Spokeo exists, let alone that it has stigmatized them. Spokeo does not believe that it is subject to laws that regulate credit reporting bureaus by requiring them to remove or correct inaccurate or unverified information and limiting who can see the information. The Act applies to entities that collect information about people’s creditworthiness, personal characteristics, mode of living, that could be used to determine eligibility for credit or employment.69 Spokeo claims that it is “intended for entertainment purposes only” and that it should not be “considered for purposes of determining a consumer’s eligibility for credit, insurance, or employment.”70 But Spokeo promotes its service as providing “invaluable insight” into the people whose data Spokeo offers and has featured banners on its site that said “HR Recruiters— Click Here Now!” and “Want to See Your Candidates’ Profiles on MySpace and LinkedIn?”71 Spokeo has also advertised on other websites, including through an ad that said, “Is he cheating on you? Reverse search his email to find out.”
When I told a law school professor about Spokeo, he logged on to read what assumptions they’d made about his life. Spokeo correctly identified his home and listed accurate home and cell phone numbers. Because his wife’s name was Jamie, Spokeo had assumed she was his young son. And Spokeo had knocked 30 years off his age and assumed he was married to his 30-year-old daughter, who had, of course, the same last name. The mistakes could affect his credit rating, since a 30-year-old would be assumed to earn less than a 60-year-old. But how would you even know to go on Spokeo to try to correct what was there? My colleague taught computer law and he hadn’t even heard of Spokeo before I mentioned it.
When Thomas Robins looked himself up on Spokeo, he noticed that the site had lots of things wrong. Spokeo had incorrectly stated that Robins was in his 50s, was married, was employed in a professional/technical field, had a graduate degree, and had children. Spokeo also provided a photo of a person whom it misidentified as Robins and, according to Robins, inaccurately reported his “wealth level.” Robins was concerned that the inaccuracies in his report would affect his ability to obtain credit, employment, insurance, and the like.72 He sued Spokeo. The judge dismissed his claim under California’s Unfair Competition Law because Robins hadn’t alleged that he’d suffered an actual harm as a result of Spokeo’s actions.73 The judge allowed the suit to go forward under the federal Fair Credit Reporting Act, though. According to the court, “Plaintiff’s allegations that Defendant regularly accepts money in exchange for reports that ‘contain data and evaluations regarding consumers’ economic wealth and creditworthiness’ . . . are sufficient to support a plausible inference that Defendant’s conduct falls within the scope of the [Fair Credit Reporting Act].”74 But the judge later changed his mind on the Fair Credit Reporting Act claim, stating that the alleged harm to Robins’s employment prospects is “speculative, attenuated, and implausible.” If a claim like Robins’s under the Fair Credit Reporting Act were allowed to go forward, “courts will be inundated by websurfers’ endless complaints,” the judge said. Robins has appealed the decision to a higher court.
Spokeo is part of a sprawling multibillion-dollar industry of data aggregators75—organizations that collect information from various data repositories, such as public records, criminal databases, and social network sites.76 The information is packaged into reports and sold to other organizations, such as advertising firms, businesses, government agencies, and credit card companies.77 The data reports can be used for employee background checks, marketing research purposes, security, creating targeted mailing lists, or determining which ads appear on social networks and other websites.78
Some marketing companies have even made deals with internet service providers to tap into any information people send from their computer, be it a private post to Facebook, an email to a lover, or a Google search for “how to commit murder.” Amazingly, courts have said that such commercial arrangements don’t violate the wiretap laws. According to one judge, the right to privacy “is lost, upon your affirmative keystroke.”79
It’s always a tip-off to something wrong in a nation when its leaders live by different rules than those governing citizens. Although Harrison Tang created Spokeo to collect and sell people’s personal information, he decided to remove himself from the database: “I was getting a lot of emails and threats,” he stated.80 Yet Spokeo provides home addresses, unlisted phone numbers, and private information of other people without their permission, despite the fact that the availability of the information could lead to threats to those other people.
And even though Facebook monetizes people’s private information in deals with advertisers and game designers, Facebook booted off one of its users when he tried using a computer program to copy his own data—his friends list—off his Facebook page.81 Facebook also threatened legal action against the artists behind the Lovely-Faces project and terminated the artists’ personal Facebook accounts.82 The artists argued that their “conceptual art provocation” used publicly available information and was therefore legal.83 But the artists buckled under pressure from Facebook’s lawyers. They took down Lovely-Faces.com, but continue to host Face-to-Facebook.net, which explains the project, including their legal travails.84
People are understandably drawn to social networks. For individuals, social networks allow people to stay in touch, performing some of the same functions performed by telephones and letters in previous eras. But laws protect us against outsiders tapping our phones and reading our private mail. Even prisoners can send mail to their lawyers without having those letters read by prison officials. But everything we post on social networks is fair game for the engineers behind Facebook and any other data miner.
Facebook and other social networks are transforming huge swaths of our lives—how we mate, shop, work, and stay in touch with the people we love. They are also changing the political process itself. When John F. Kennedy and Richard Nixon debated on television, concerns were raised that politics would deteriorate into a contest where the most telegenic candidate won. But TV debates took place out in the open—anyone could tune in. And the Federal Communications Commission adopted regulations so that opposing candidates were granted equal time to present their views.
With social networks, it’s not the most telegenic candidate who wins, but the one with the best data crunchers. Barack Obama was swept into office largely because of his presence on the Web.85 His social network campaign was managed by one of the founders of Facebook, 24-year-old Chris Hughes, who took a leave from the company to propel Obama into office.
The Republicans did Obama one better and stormed Washington in the 2010 elections through targeted use of social network data. Data aggregators used data from social networks, such as people’s interest in the Bible, past political contributions, voter registration status, shopping history, and real estate records to identify conservative voters by name and provide that information to Republican political hopefuls. The candidates could then email the people directly, making promises and taking stances that were never revealed to the public—and were shielded from scrutiny by their opponents.
With not only the rights of individuals at stake, but the future of the political process itself, it’s time to analyze how we as social network citizens can be protected. What responsibilities should individuals bear? What rules should govern what can be done with our digital selves and our data by the social networks themselves and the third parties who gain access to that information? What rights should social network citizens have?
The complex issues raised by social networks came to the fore after the 2011 British riots. Prime Minister David Cameron, who’d previously felt that social network communities were “brilliant,” felt differently once rioters began to communicate with each other via Facebook, Twitter, and BlackBerry Messenger to share information about what shops to loot.
“Everyone watching these horrific actions will be struck by how they were organised by social media,” the prime minister told the House of Commons. “So we are working with the police, the intelligence services and industry to look at whether it would be right to stop people communicating via these websites and services when we know they are plotting violence, disorder and criminality. I have also asked the police if they need any other new powers.”86
Member of Parliament David Lammy pointed out that rioters had used BlackBerry Messenger to send encrypted and almost untraceable messages to each other. He urged Research in Motion, the maker of BlackBerry, to shut off that service entirely until order was restored in the streets.87 The prime minister similarly asked Twitter and Facebook to remove messages, images, and videos that could incite riots.88
Civil rights advocates reacted immediately. “How do people ‘know’ when someone is planning to riot?” asked Jim Killock, the executive director of online advocacy organization Open Rights Group. “Who makes that judgment?”89 Legitimate advocacy and well-grounded protests will be stifled if social networks and websites are pressured to censor their members.
Social networks have stunning benefits. But the citizens of Facebook Nation who see those benefits may not realize the downside. The young nation was founded only recently, less than a decade ago. Its original citizens were college students who are probably still too young to have experienced rampant discrimination in jobs, romance, or credit lines based on what they’ve posted. They may not yet realize the extent to which their offline self is being overshadowed by their digital doppelgänger.
People came to Facebook Nation for freedom of association, free expression, and the chance to present an evolving self. But unless people’s rights are protected, social networks will serve to narrow people’s behavior and limit their opportunities, rather than expand them. Already people are being fired for undertaking perfectly legal activities, such as when a photo of an employee drinking wine is tagged on Facebook. And new norms of behavior are emerging that do not reflect off-the-grid life, such as forbidding judges to “friend” lawyers.
Social networks are taking over many of the traditional functions of government without any legal protections for their citizens. The underlying economic goal of social networks—monetizing personal data—is invisible to their citizens and may in fact be herding them into a land that they wouldn’t want to inhabit.
The United States Constitution was penned by philosopher-politicians gravely concerned with the metaphysical question of what was necessary for individual and social flourishing. They understood that living socially and with aspirations meant adopting principles to deal with everything from resolving disputes to encouraging innovation, from structuring relationships with other nations to protecting individual rights.
They recognized the value of protecting people’s privacy and assuring oversight of actions of the government. They required that the governing rules about the relationship between citizens and the government be clearly stated in advance and not changed without adequate notice and citizens’ input. They favored openness about what the government was doing, believing, as U.S. Supreme Court Justice Louis Brandeis said a century later, “sunshine is the best disinfectant.” They also saw the value of being able to remake oneself, to start afresh.
Instead of philosophy, computer engineering and data collection are the driving forces behind the policies of Facebook Nation. The quest for more and more information about more and more people is what stimulates the Facebook economy because the service makes its money on data. The executives behind social networks often disregard the values that are central to the U.S. Constitution. The Facebook founders, for example, view the desire for privacy as something to be outgrown. In a 2010 interview, Mark Zuckerberg commented on Facebook’s decision to make certain previously private information public: “People have really gotten comfortable not only sharing more information and different kinds, but more openly and with more people.”90 Former Facebook programmer Charlie Cheever said, “I feel Mark doesn’t believe in privacy that much, or at least believes in privacy as a stepping-stone.”91
And the very structure of social networks prevents you from reinventing yourself. Once information about you and photos of you are on the Web, they can be used against you in perpetuity.
As we each begin to live a parallel life on Facebook, it’s time to figure out, as with any new country, what principles should govern this new nation. Do the principles on which the United States and other democracies were founded still resound with people today? Could they provide guidance for the governance of social networks?
The project of proposing a Social Network Constitution may seem foolish. Facebook, Myspace, Google, Twitter, and YouTube are private entities, and the U.S. Constitution governs only the actions of the government, not private actors. But that is not the case in other countries, such as Germany, Ireland, South Africa, and the European Union,92 where the fundamental values expressed in the national constitution can apply to companies in addition to governments. After all, companies may be more powerful than some governments—that’s certainly the case with Facebook.
And even in the United States, the fundamental values expressed in the U.S. Constitution provide guidance for the private realm. The Fourteenth Amendment’s idea of equal protection under the law provided the foundation for Congress to enact civil rights laws that govern the conduct of corporations and private citizens. The Fourth Amendment’s protections for privacy provided judges with the inspiration to allow lawsuits against individuals and corporations that disseminated a person’s private information without consent.
We needn’t think of a Social Network Constitution as a set of rules, like the Internal Revenue Code, that would govern in minute detail what a social network should or shouldn’t do. Instead, think of it as a touchstone, an expression of fundamental values, that we should use to judge the activities of social networks and their citizens. These principles could be used to frame the societal debates about social networks—guiding not only the decisions of citizens about what technologies they should reject but also the decisions of courts and legislatures about what principles should govern.
In many instances, the principles would help courts make a determination in a case, analyze existing laws, and decide whether or not to let evidence in at trial. These values could also guide legislators who are considering adopting new laws to regulate social networks.
The very nature of social networks is constantly changing. New technologies are introduced and individual users face new issues. A set of strict, rigid rules governing the use of social networks might be effective now, but will quickly become outdated just as other laws that are intended to protect people, such as wiretapping laws and consent laws, fail to protect and serve the needs of the current online community. Unlike the rigid, formula-driven Internal Revenue Code, a Social Network Constitution should be flexible and recognize basic principles that we should never outgrow. Its provisions would address the actions of government agencies, social institutions, and society at large.
Every democratic nation has governing principles about what rights its citizens have over property, privacy, life, and liberty. The citizens of Facebook Nation deserve no less.
© 2011 Lori Andrews
Table of Contents
1 Facebook Nation 1
2 George Orwell... Meet Mark Zuckerberg 17
3 Second Self 33
4 Technology and Fundamental Rights 49
5 The Right to Connect 61
6 Freedom of Speech 75
7 Lethal Advocacy 91
8 Privacy of Place 111
9 Privacy of Information 121
10 FYI or TMI?: Social Networks and the Right to a Relationship with Your Children 137
11 Social Networks and the Judicial System 149
12 The Right to a Fair Trial 161
13 The Right to Due Process 173
14 Slouching Towards a Constitution 185
The Social Network Constitution 189