Final draft research paper

Running head: PRIVACY AND SOCIAL MEDIA 1

PRIVACY AND SOCIAL MEDIA 10

Privacy and Social Media

Privacy and Social Media
Over the years, advancements in technology and communication have been so rapid that they have driven social media platforms to be a mainstream part of peoples’ lives. Initially, social media was only used as an informal platform for friends and family to interact. However, its importance is growing by the day and it is now being used to spread news and to facilitate official communication for formal entities such as companies and businesses. This increased connectivity has been beneficial in creating unlimited possibilities for people to interact easily with each other on a global scale (Marwick & Boyd, 2014). However, this increased connectivity has drastically raised the risk of privacy violations by users on various social media platforms such as Twitter and Facebook, among others. Due to the rapid rate at which social media use has grown, lawmakers have always lagged behind in creating laws that will ensure social media platforms are used ethically (Jozani et al., 2020). In this context, the purpose of this paper is to explore the extent to which laws in the US facilitate the privacy of social media users on social media platforms.

Brief Legal History

Often, social media platforms outline their privacy guidelines and allow users to configure certain privacy settings. However, the majority of users tend to skirt them. Consequently, many people are left vulnerable to privacy issues since they have either ignored to read privacy guidelines or do not understand the legalese writing that is used to frame the privacy statements. In the past, social media platforms such as Facebook have been accused of taking advantage of their clients’ ignorance to violate their right to privacy (Ayaburi & Treku, 2020). Nevertheless, as time goes by, lawmakers are coming up with more stringent rules to try and uphold the privacy of social media users.
Lipschultz (2021) reveals various developments over the years that have caught the attention of stakeholders of the ‘privacy and social media’ topic. For instance, Facebook once accepted that it was using its social media platforms to carry out psychological content filtering experiments without the knowledge of its users. Google on the other hand acknowledged that its Street View vehicles were collecting personal information from open Wi-Fi networks. In these two examples, Google and Facebook acknowledged and apologized for their actions.
Lipschultz (2021) notes that Congress has proposed various bills in a bid to regulate internet use in the context of aspects such as online investor protection, pharmacy consumer protection, e-commerce protection, email protection, and spam advertising limitations. For instance, there was a bill that attempted to regulate the selling of prescription drugs by ensuring the relevant platforms had a page of licensed pharmacists. However, State Attorney Generals blocked this move by asserting that the monitoring and licensing of healthcare practitioners was a state regulation issue and not a federal one. These are some of the hurdles that Congress faces when trying to introduce sanity in how the internet is used. This frustration is seen in Tom Daschel, a former US Senator who Lipschultz (2021) quotes as saying, “internet users are often promised basic privacy protection, only to have their expectations disappointed and their personal information put up for sale or disseminated in a way to which they never consented” (p. 219).
The First Amendment gives all US citizens the right to use the internet. However, this right was facilitated by Reno v. ACLU (1997) in the context of using the internet for communication purposes. Therefore, the shift from communication to using the internet for social media platforms presents courts with complex issues pertaining to the privacy of users. For instance, the State of North Carolina made it an offense for registered set offenders to have access to social media platforms. However, in 2002, the Packingham v. North Carolina (2017) case made the Supreme Court strike down this state statute on the grounds that it violated the First Amendment. Nevertheless, the Supreme Court allowed North Carolina to have the power to come up with more narrow laws that prevent sex offenders from contacting minors or collecting information about minors on social media platforms. Although the Supreme Court currently perceives social media use as an element of the First Amendment, Lipschultz (2021) asserts that “it is unclear whether the Court will extend this view beyond the reach of government state action within a criminal law context to civil litigation by privacy parties” (p. 220). Hence, social media use presents numerous legal questions that have to be solved quickly in a bid to protect the privacy of users without violating the right of people to communicate under the First Amendment.

Recent Case

In Richards v. Hertz (2012), an allegation was made by the plaintiff citing personal injuries, which limited physical activity and enjoyment of life. However, the defense saw Facebook pictures, which revealed that the plaintiff had been skiing. Consequently, the defense called for the court to allow it to access the social media platform. The court declined the defense’s request and called the plaintiff to provide the skiing pictures to the defense. However, the defense claimed that by accessing Facebook and viewing the pictures, certain information relevant to the case would have been revealed. The court countered by stating that regardless of the possibility of additional evidence, there was a high likelihood that the plaintiff’s private information, which was irrelevant to the case would be revealed. In the end, the court videotaped the Facebook site and then made the decision on what to give the defense and what to keep private.
In U.S. v. Mereglido (2012), the government requested a search warrant to access the Facebook account of a defendant in a grand jury investigation. The warrant was issued because probable cause was found to exist in the Facebook account. Rather than contest this decision, the defendant attacked the government’s proprietary technique of evidence collection. The assertion by the defendant was that the move went against the Fourth Amendment. This is because the government’s witness was one of the Facebook friends of the defendant and this individual was responsible for giving the government access to his profile. In this case, the court referenced United States v. Lifshitz (2004), which asserts “people have a reasonable expectation of privacy in the contents of their home computers”. The court continued its discussion by explaining that “this expectation is not absolute, and may be extinguished when a computer user transmits information over the Internet or by e-mail.” Additionally, the court referenced Katz v. United States (1967), which asserts “a person has a constitutionally protected reasonable expectation of privacy when they have both a subjective expectation of privacy and that expectation is one that society recognizes as reasonable.” The court countered the defendant by asserting that the Fourth Amendment does not protect a social media user once he/she spreads his information or posts to the public. This case also revealed that the privacy settings of Facebook allow friends to view posts; thus the government can use one of these friends as a witness without going against the Fourth Amendment.
In Vasquez-Santos v. Mathew (2019), the major issue of contention was the legality of allowing the use of private social media information in court. The plaintiff, a former semi-pro basketball player had claimed a car accident made him disabled and robbed him of his playing ability. However, the defendant presented contradicting evidence from his social media pictures, which revealed the plaintiff had been playing basketball long after the accident. The plaintiff claimed the photos were inadmissible because they were old. However, the defendant was able to get the court to allow a data mining company to access the private content of the plaintiff to counter this assertion. In the end, the court ruled that private information can be discoverable in a court if it “contradicts or conflicts with a plaintiff’s alleged restrictions, disabilities, and losses, and other claims.” From these recent cases, it can be deduced that the issue of privacy in social media use is still unclear leading to the court making rulings based on its interpretation of precedent cases and the US Constitution.

Review Analysis

In the context of privacy and social media use, Jackson (2014) points out the state (action) doctrine, which is perceived to disregard private conduct apart from the exceptions designed for public entwinement and function. These exceptions were revealed in the Marsh v. Alabama (1946) case, which prevents private corporations from exercising government-like power. Jackson (2014) asserts that social media platforms are huge public spaces similar to cities, which are regulated by the government on the basis of the public forum doctrine. Consequently, he notes that “social network websites may be privately owned, but they are sufficiently public…in nature to be treated as state actors” and should therefore “be limited in some of the ways in which governments are limited” (pp. 144-148). This implies that the laws that guide the way people interact in physical social spaces should also apply in the virtual social media spaces. Thus, the way the US Constitution protects people’s privacy in real-life interactions should also be the same in social media platforms.
Determann (2012) argues that the protection of privacy rights by social media companies tends to be highly exaggerated. Determann (2012) states, “even if you find privacy rights in constitutions, expressly or impliedly, constitutional rights protect you directly only against governments and state actors, but not typically against companies or individual social media users” (p. 1-2). Whereas courts balance privacy rights to other civil rights, in the social media context, the situation is not the same because privacy rights are often perceived in the context of the right to information and free speech. The freedom to communication often trumps the right to privacy according to Determann (2012), which is why protecting people’s privacy on social media platforms is quite challenging.
Determann (2012) further notes that in social media platforms, users are often ignorant about privacy terms they are asked to accept, which leads to many of them not knowing exactly how they are protected or not. Determann (2012) gives this example: “Trade secret law protects information that companies keep secret if such information derives an economic value from being secret. Personal information about you that you or others post on social media platforms, however, is not a secret and thus not subject to trade secret law protection” (p. 3). Hence there is a need for privacy notifications to use simple language so that people know exactly what information is kept private and what is not before agreeing to the terms of their social media platforms.

Conclusion

· The paper has explored the extent to which laws in the US facilitate the privacy of social media users on social media platforms.
· Social media use presents numerous legal questions that have to be solved quickly in a bid to protect the privacy of users without violating the right of people to communicate under the First Amendment.
· Recent case laws reveal that there are situations that the privacy of people in social media that may be violated if the information being hidden is relevant in determining the outcome of a court case.
· makers should come up with explicit and concise laws that are modern and directly address social media and internet use.
· Social media platforms should also be clear in their privacy guidelines and use simple language that social media users can understand and consent to.

References
Ayaburi, E. W., & Treku, D. N. (2020). Effect of penitence on social media trust and privacy concerns: The case of Facebook. International Journal of Information Management, 50, 171-181.
Determann, L. (2012). Social media privacy: A dozen myths and facts. Stanford Technology Review, 7, 1-14.
Jackson, B. F., (2014). Censorship and freedom of expression in the age of Facebook. New Mexico Review, 44(1), 121-167.
Jozani, M., Ayaburi, E., Ko, M., & Choo, K. K. R. (2020). Privacy concerns and benefits of engagement with social media-enabled apps: A privacy calculus perspective. Computers in Human Behavior, 107(1), 56-60.

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
Lipschultz, J. H., (2021). New communication technologies (pp. 218-220), in Communication and the , 2021 Edition. (W. W. Hopkins, Ed.) Northport, Alabama: Vision Press.
Marwick, A. E., & Boyd, D. (2014). Networked privacy: How teenagers negotiate context in social media. New Media & Society, 16(7), 1051-1067.

Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946).

Packingham v. North Carolina, 137 S. Ct. 1730, 582 U.S., 198 L. Ed. 2d 273 (2017).

Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997).

Richards v. Hertz, 100 A.D.3d 728 (2012), 953 N.Y.S.2d 654 (2012).

U.S. v. Mereglido, 2012 WL 3264501, (2012).

United States v. Lifshitz, 369 F.3d 173, 190 (2004).

Vasquez-Santos v. Mathew, 168 A.D.3d 587, 92 N.Y.S.3d 243 (App. Div. 2019).