No Shoes, No Shirt? No Service, No Privacy.
January 15, 2021
The complexities and challenges of reforming social media laws were analyzed in our previous article on Section 230 just as top social media companies took unprecedented actions of censorship, following the storming of the United States capitol by radicalized right-wing domestic insurrectionists: AWS revoked hosting services for Parler, Twitter banned @therealdonaldtrump and major social media platforms terminated accounts that promoted violence or conspired to commit crimes. Conservative citizens, pundits and politicians denounced it as an affront to, or even a violation of free speech and first amendment rights.
To say the actions of these companies is unconstitutional is a misunderstanding of constitutional law.
While it may be a business decision that will foment anger and backlash among some conservatives, it is absolutely within the rights of any non-governmental organization to censor and refuse service to a customer, especially when there is evidence that the company's terms of service were violated. These corporations were careful to adhere to the terms and conditions they set forth in the long page of legal text people rarely take the time to read when they register as a customer for a free service. Moderators banned those who had violated those terms.
The first amendment protects citizens and press from government censorship. This law does not guarantee US citizens or spokespersons access to or freedom of expression within private sector property or resources -- unless the refusal of service applies to a member of a “protected class” as defined in a body of different but often interrelated anti-discrimination laws. Citizens are free to contest the action and seek damages in civil court.
If a shopkeeper posts a sign in their store indicating they reserve the right to refuse service based on a set of terms, that right is indeed reserved. If you’re threating other customers or acting inappropriately, the shopkeeper can kick you out and ban you from returning. They can also keep the camera footage of your actions in their store and share it with law enforcement. Social media is exactly the same.
Both sedition and conspiracy (planning with others) to commit sedition against the United States government is illegal. Fortunately, it's so remarkably uncommon that perhaps the average citizen may not clearly understand where their constitutional rights end and serious illegality begins. Conviction of conspiracy to commit sedition, even if not carried out can result in a penalty of up to twenty years in prison.
That's a stiff price to pay for hanging out with the wrong crowd.
There's a long tradition of civil disobedience and protest in the United States. Labor rights, human rights, environmental rights and anti-war movements have been training and organizing around principles of non-violence and first amendment law for over a century to carefully navigate a tightrope of legality and public relations backlash. Mahatma Ghandi and Martin Luther King were effective spearheads for social change because their long game of non-violence ultimately won over public opinion.
As we've seen over the past fifty years in the era of "modern" media, the majority is appalled by the opposite approach. -- it becomes an easy target for the opposition's propaganda. Examples abound: from anti-war protests turned violent in the lates 60s, to the Los Angeles Rodney King riots, to WTO protests at the turn of the millenium, to the BLM protests turned violent more recently. In each case, the footage of destruction only served to polarize the public and stoke fear. It could be argued that the more vitriolic and angry a movement, the less effective it is in achieving its goals and the more it looks like a violent and threatening mob that needs to be put down.
All federal, state and local law enforcement agencies, intelligence agencies and surveillance agencies are now working to identify suspects of the Capitol insurrection and build cases for indictment. Those indictments will be judged by a jury of citizens in a court of law.
The majority of evidence being used by law enforcement is from social media, which begs several questions:
- Were the vast numbers of perpetrators of the Capitol riot who made no attempt to conceal their identity or openly posted evidence of their own seditious activity on social media ignorant of the consequences?
- Were they convinced that such sedition was a heroic act worth the inevitable penalty, not unlike the fanaticism of a terrorist?
- Is it possible they were operating in such a convincing alternate media and social reality that they were confident they would somehow prevail against the Department of Justice and Federal Bureau of Investigation operating at the pleasure of the democratically elected body of the most powerful nation in the world?
- Natalie Baptiste opines the blatant posting of "selfies" evidence of a grossly distorted sense of racial priviledge:
There’s a staggeringly simple reason the rioters felt comfortable about wearing their work badges, or the sweatshirts listing the phone number to their small business, or, in a notable case, their Team USA jacket from the 2004 Olympics, while they committed serious crimes. When it comes to punishing systemic white political violence, the United States has a dismal record.
It would be a stretch to believe that the perpetrators, many of whom had military or law enforcement training believed their digital communications on corporate media systems were private, or were completely ignorant of the law.
They didn't care. They thought they could get a way with it.
These will be interesting court cases to follow that could establish novel precedent.
The teachable moment here is that technology companies providing social media, telephony, email and web hosting services are subject to Federal warrant or subpoena. Data related to criminal activity can be requested for use in an investigation. Since Facebook v. Superior Court of the City and County of San Francisco most of the major "family friendly" companies that dominate the market are long past battles over privacy and comply immediately.
Many Americans either assume that their data privacy is protected on major platforms like Facebook, Gmail, Google Drive, Twitter and cellular services, or are unaware that that the body of law and precedent surrounding freedom of speech is well established as it pertains to the caveats of the first amendment. The increasingly extreme norms of abusive language in film, television, video games and social media platforms can be misleading. Real threats, incitement of violence or crime, defamation and conspiracy against the government are not protected by the constitution and are punishable by law, even though infotainment personalities and social media influencers like Alex Jones seem to get away with defamation or borderline defamation on a regular basis. Alex Jones' and his attorneys have attempted to argue that his conspiracy theorizing and defamation is for "entertainment" purposes and do their best to hide behind first amendment protections.
Jones has retracted or apologized in multiple defamation cases, claiming that he sufferes from a "form of psychosis". A psychologist testified in court that Jones had been formally diagnosed with narcissistic personality disorder, which the Mayo Clinic defines as “a mental disorder in which people have an inflated sense of their own importance, a deep need for admiration and a lack of empathy for others.” Psychoanalysts have asserted that Donald Trump, who has regularly repeated Jones' false conspiracy theories in tweets and public rallies to attract Jones' large base of followers, also suffers from the same disorder. Jones' program "InforWars" has been cited as one of the primary sources of information for the Capitol rioters. Leading up to the attack, carried out while Congress was certifying Joe Biden’s electoral victory, Jones had been at the forefront — along with several other Trump supporters — of amplifying false claims that the election had been rigged and that Trump had actually won.
These claims have been rejected:
- The president and his allies lost 62 lawsuits in state and federal courts
- The US Supreme Court sided against Trump twice.
- Georgia recounted their votes three times.
- In Wisconsin, Biden gained 74 votes following a recount of the state's results that focused only on two Democratic strongholds, Milwaukee and Dane counties. It increased Biden's statewide margin to 20,682 votes out of about 3 million cast.
Despite the overwhelming evidence, a significant number of Americans felt emboldened enough to risk criminality by joining social media groups that have conspired against the US Government.
If they believed they were protected by digital privacy laws, the terms and conditions of social media platforms or the first amendment, they were mistaken.
Modern cloud applications and websites rarely actually delete data, they simply archive it, as if in a permanent “Recycle Bin.” When you delete a post, image or even a draft, that data is preserved and can be accessible by administrators unless otherwise stated clearly in the services terms and conditions of privacy. Remember, if you’re not paying for the product, your data usually IS the product they are selling to other companies behind the scenes.
Parler is an excellent example. The hacker who compromised the system and leaked upwards of 70 terabytes of user data claimed that the company’s product was poorly designed, lacked reasonable data security and was easily compromised. Much of the conspiracy against the government was conducted by extremists on Parler. The FBI and open source intelligence groups now have full access to it to identify and prosecute.
The more extreme and sinister domestic extremists don't use the major platform, opting instead to leverage the same platforms used by international bad guys: "8chan" and "Telegram". These platforms are highly secure, anonymous and operate on a server infrastructure outside the juristiction of United States. Law enforcement monitors them closely, and has a long history of grappling with their policies in order to marginalize and shut down accounts operated by bad actors like the Islamic State.
The only recourse for law enforcement is finding the companies who host their infrastructure and hope the country where the servers are operating comply with international warrants. Mounir Mahjoubi, president of the National Digital Council, an independent advisory group established by former President Nicolas Sarkozy that focuses on privacy issues said in 2016, “(thes platforms) had done everything to make it a technological nightmare to find where their server is.”
Investigative reporting by NBC reveals that these sites have seen a startling uptick in activity, including the sharing of chilling tactical documentation.
It's a challenge for domestic and international authorities to surveil, monitor and issue warrants for extremist communications in a timely manner. The nature of encryption and Internet technology will always provide a means for the most radical extremists to communicate. The best overall strategy for domestic authorities is to use the same counter-insurgency tactics the US Military used in Afghanistan and Iraq: push the most extreme factions to the margins so they cannot recruit and influence an unwitting population.
Compared to many countries, US law affords tremendous freedoms. But the rules are well defined.
Whatever your political views, you can leverage the many democratic freedoms that the US affords for your voice to be heard, but understand the laws of the land and don’t violate them unless you’re willing to risk the consequences.
Furthermore. if you’re concerned about your data privacy as it pertains to personal information, personal communications, your medical and financial records (as you should be) you need to be aware that there are simply no guarantees in contemporary digital information security, and take steps to educate yourself. Even the most reputable companies who take data privacy and security seriously get hacked, and the sophistication of those hacks grows every year. Your private communications are probably not nearly as private and secure as you think. There is no perfectly secure computer system.
Fortunately, there is a wealth of information about data privacy technology, law and a reasonable digital future on the web. We hope to offer guidance on security and a happier digital future on this site.
License: Creative Commons Attribution 4.0 International (CC BY 4.0)