On Freedom of Speech and Expression

Privacy is an essential right that every citizen of the United States is granted. Under the first amendment of the constitution rights such as freedom of press, speech, and privacy are protected. The first amendment separates the United States’ constitution from many other countries for a simple reason, the freedom of speech and expression. Freedom of speech and expression is the right to speak freely without fear of repercussion from the government simply because it doesn’t like the content of a message.

While the government cannot prevent speech based on content, it can place reasonable restrictions on it. These restrictions placed are on the time, place, and manner of the speech and are necessary to balance the rights of free speech against other important rights. The level of security around the freedom of speech and expression proves how important it is to the American people. One of the landmark cases that did in fact put restrictions on the freedom of speech was the case of Schenck v United States in 1919. This case established the famous metric of the “clear and present danger test”. Justice Oliver Wendell Holmes described the “clear and present danger test” stating that not only the words of a speech are important, but also the circumstance and nature of them.

If the words are said in such a way that it creates alarm than Congress has the right to restrict the speech. Along with freedom of speech, the right to privacy is also protected in the United States’ Constitution. There are four major types of invasion of privacy that are extremely unethical and potentially illegal. These four types are intrusion into solitude, putting someone in a false light, public disclosure of private information, and appropriation ones character. Protecting someones right to privacy is just as important as protecting the right of free speech because without any protection criminals and corporations could exploit this information for their own gain.

Currently being in the age of the Internet, information is readily available to a person at any given time. While this is a very positive aspect of the internet, there is also a dark underbelly to it. Along with the internet age came social media sites such as Myspace and then Facebook. Seemingly harmless, these sites were designed to connect people who shared similar tastes and interests, but have turned into data farms that analyze and group people based on characteristics. Collecting this data goes against all three basic schools of ethics, but specifically violates Deontological ethics. This school of ethics focuses on the action rather than the outcome and was developed by Immanuel Kant. Kant built upon his idea of deontological ethics and developed what he called the “Categorical Imperative.”

The Categorical Imperative is Kant’s golden rule and it simply states that someone should only act if they feel everyone should act in that way. In the case of Facebook and data farming it is very clear that these actions are unethical. The founder of Facebook, Mark Zuckerberg, would not want his personal information to be analyzed and stored without direct approval from himself. Why then would Facebook feel it could do the same to it’s users? The answer is very simple, money.

Many companies are interested in finding new and effective ways to market products to their target audiences. Research is constantly being done to determine insights into consumers minds and Facebook is the biggest databank available. In early 2018 Facebook made headlines when it was reported that it had allowed a third-party access to private user information. This third-party is a company called Cambridge Analytica and it was given access to personal information such as birthdays, likes/dislikes, and even possibly private messages. Facebook’s lack of control over it’s users information is not only disturbing, but a direct invasion of privacy.

Operating with little to no oversight, Facebook has grown into the biggest information service available. Mark Zuckerberg however, still insists Facebook is not a plug for information, but rather an outlet. Companies will tell Facebook what target demographics they have and Facebook will direct advertisements to this demographic. While there is no direct selling of user information, make no mistake this is still an invasion of privacy. Intruding into a persons solitude is prying into someone’s private affairs and this could potentially leave Facebook with a lawsuit. Facebook’s own right to freedom of speech and expression is infringing on it’s users right to privacy because the users are not directly made aware their information is being sold to the highest bidder.

Despite Facebook not being the company to utilize users personal data, it is still liable for the potential fallout. Facebook makes most of its revenue from advertisements and by offering companies direct access to designated demographics it is violating users rights to privacy. The advertisements are generated with previous knowledge of the user’s likes and dislikes so they are perfectly tailored to illicit responses. The user however, is unaware their information is being outsourced which is an invasion of privacy.

The Right to Privacy between a business and it’s users was established in the 2002 court case Tattered Cover, Inc v City of Thorton. In this case the Thornton police department served Tattered Cover inc, which was a local bookstore, with a subpoena for a customers recent purchases. The bookstore refused to give this information and questioned the validity of the search warrant. After much litigation it was established a persons right to privacy was protected by the First Amendment and courts must apply a “balance test” to determine if the invasion of privacy is warranted. The “balance test” is similar to the “clear and present danger test” in which they both measure to see if an infringement of the First Amendment is constitutional.

Since the internet is still growing, laws and regulations are constantly being created and changed to deal with this new entity. Facebook’s data breach is only one of many issues that stresses the importance of protecting the First Amendment and it is for this reason action needs to be taken. Facebook is a multibillion dollar company with 2.2 billion registered users, protecting users rights to privacy must be the most important task. The United States government must hold Facebook and Mark Zuckerberg accountable for allowing this invasion of privacy and take action to prevent further mistakes.

Traditional media such as radio and television are regulated by the Federal Communications Commission. The FCC also regulates the internet to an extent, but focuses more on ensuring that internet service providers do not discriminate when providing broadband service. While this regulation is necessary, the FCC could take further action in holding companies such as Facebook accountable for this invasion of privacy.

A persons rights do not become null or void simply because they are on the internet. Established in another landmark case Reno v. American Civil Liberties Union, the court ruled unanimously in a 9-0 vote that the Communications Decency Act was unconstitutional. The courts ruling established that a persons First Amendment rights are still protected on the internet. The specifics of the case involved pornography on the internet and was intended to prevent minors from receiving inappropriate content. The provision was still struck down by Supreme Court because while the interests of the act were good, they did not justify an unnecessary suppression of speech. The Reno v ACLU case was the first of its kind because it attempted to decide how the internet should be regulated.

While Facebook’s monitoring of user information is undoubtedly unethical the action is also illegal because a large majority users are unaware their information is being used by outside parties. Facebook’s lack of disclosure towards it’s users demonstrates a corporate mindset that sees users as products rather than people and puts profit over humanity.

Despite the clear invasion of privacy there is a strong reason Facebook has not faced as much repercussions for it’s actions. The reason for this lack of accountability is because when users sign up for Facebook they are forced to agree to terms and conditions. These terms and conditions protect the company and also allow it to take advantage of the information available on Social Media. Each user must agree to these conditions to use Facebook’s services and are bound legally by them.

Terms and conditions of internet based services are often dense contracts written in legal terms meant to confuse the reader. These contracts are designed to be so dense that users skip over them and just accept them. Unfortunately, this is a legally binding agreement and it has been confirmed in the court case ProCD v. Zeidenberg.

In 1996, Matthew Zeidenberg decided to upload a CD-ROM that contained a telephone directory to his own personal website. Clicking through a series of warnings he had agreed to the terms and conditions without reading them. Ultimately the telephone directory was licensed by a company called ProCD and it was illegal to use their software commercially. After much litigation the courts decided that by agreeing to the terms and conditions, Matthew had entered into a legal contract with ProCD. The precedent established in the case bolsters the argument that by agreeing to the terms and conditions Facebook is technically allowed to use private data.

Despite the ruling of ProCD v. Zeidenberg there is still a substantial amount of evidence that proves Facebooks actions of selling private data was unethical and illegal. Privacy is protected under the first amendment and with all the cases establishing how serious freedom of expression and right to privacy is, there needs to be accountability on Facebooks part. The governments duty is to protect the rights of it’s citizens and that is why the FCC must go further in regulating Social Media.

One possible solution would be to place restrictions on what Facebook may do with users private data. These restrictions would not be a violation of Facebooks freedom of expression because of the precedent established in Schneck v. the United States. Reasonable restrictions are allowed to be placed if the right of freedom of speech is infringing upon other rights, such as privacy. Since Facebook’s right to freedom of expression is infringing upon its users right to privacy, restrictions could be placed. The internet and social media will continue to grow and it is up to the citizens of the U.S. to decide what rights are potentially being given up. ?

Bibliography

1.  Abernathy, K. Q. (2017, August 30). How to Regulate the Internet. Retrieved from https://fedsoc.org/commentary/publications/how-to-regulate-the-internet
2.  Association, A. L. (2018, February 27). Notable First Amendment Court Cases. Retrieved from http://www.ala.org/advocacy/intfreedom/censorship/courtcases Document ID: 68f1c112-94f8-5e74-511a-b50155ba7b2c
3. FindLaw's Supreme Court of Colorado case and opinions. (n.d.). Retrieved from https://caselaw.findlaw.com/co-supreme-court/1340412.html
4.  Isaac, M., & Frenkel, S. (2018, September 28). Facebook Security Breach Exposes Accounts of 50 Million Users. Retrieved from https://www.nytimes.com/2018/09/28/technology/facebook-hack-data-breach.html
5. Isidore Silver, Privacy and the First Amendment, 34 Fordham L. Rev. 553 (1966). Retrieved from: https://ir.lawnet.fordham.edu/ r/vol34/iss4/1
6. Spangler, T. (2018, April 03). Facebook Under Fire: How Privacy Crisis Could Change Big Data Forever. Retrieved from https://variety.com/2018/digital/features/facebook-privacy-crisis-big-data-mark-zuckerberg-1202741394/
7. Stroud, M. (2014, August 19). These six lawsuits shaped the internet. Retrieved from https://www.theverge.com/2014/8/19/6044679/the-six-lawsuits-that-shaped-the-internet
8. Yurieff, K. (2018, April 11). Your Facebook Data Scandal Questions Answered. Retrieved from https://money.cnn.com/2018/04/11/technology/facebook-questions-data-privacy/index.html

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