how to define and determine the intended recipient of online communications. The previous law covered telephone communications, which have an obvious sender and receiver, explains David Horowitz, executive director of Media Coalition, a national free speech advocacy group. Online behavior (in the form of a Facebook status update or a tweet, for example) has a less clearly defined audience. The coalition sent a letter in March to Arizona Gov. Jan Brewer and state lawmakers warning that the bill had “serious and significant constitutional infirmities.”
Vogt and other legislative leaders took notice and agreed to refine the bill’s language before sending it to Brewer’s desk. They worked with state attorneys to craft more precise definitions of illegal behavior (removing terms deemed too broad, such as “annoy”) and they worked to more clearly delineate the kind of two-way communication that would constitute harassment (a private Facebook message, a Twitter mention and so on). Brewer signed it into law in May. The resulting bill was greatly improved, says Gabe Rottman, a First Amendment policy adviser at the ACLU. But if state lawmakers had been less willing to compromise with advocates, the original legislation would have been an easy target for litigation. Says Rottman: “Anytime that you’re trying to restrict speech, you’re opening yourself up to constitutional challenges.”
New York state might be heading into the same firestorm. Bills introduced in both the House and Senate in late March would require website administrators (from blogs to social networks) based in the state to remove comments made by anonymous posters unless the poster agrees to attach his or her name to it. No votes have been taken on the legislation, but free speech advocates are once again preparing for action if the proposals move forward. “This statute would essentially destroy the ability to speak anonymously online on sites in New York,” Kevin Bankston, an attorney for the Center for Democracy and Technology, which promotes an open Internet, told Wired magazine in May.
Nebraska Sen. John Wightman discovered another complication this year: Social media companies themselves are quick to jump into the legislative process. He proposed legislation (at the behest of the Nebraska State Bar Association) that would transfer control of a social media account to an individual’s personal representative upon his or her death. “It’s something that will need some regulation,” Wightman says. “The legal aspects need to be resolved.” For their template, Wightman and the bar association had looked across the border at Oklahoma, which passed the nation’s first such law in 2011.
Oklahoma’s law had passed without much notice by Facebook. Under its own terms, Facebook memorializes an account when it is notified of a user’s death. The profile stays up, while new posts are prohibited and access to the account is locked. But stories of grieving parents forbidden from logging on to their child’s account had led Oklahoma legislators to act. Nebraska lawmakers saw an opportunity to avoid a situation like that in the future by creating a policy now. This time, though, Facebook lawyered up.
The company (and other social media networks that became involved in the statehouse negotiations) expressed concerns about the privacy of their users. “Our existing policy works to ensure that privacy settings are preserved and respected, and these policies extend to memorialized accounts,” Facebook spokesman Tucker Bounds wrote in an email. Facebook’s concerns led to the bill being shelved, but Wightman anticipates it being reintroduced during the next legislative session.
In other scenarios, Facebook and state legislators are working together to protect citizens’ online privacy. The company has taken an active interest in laws like Maryland’s that prohibit employers from requiring employees or job candidates to reveal their social media passwords. Facebook’s terms of service reject the solicitation of a user’s password. As Facebook Chief Privacy Officer Erin Egan wrote in a blog post on the issue: “We don’t think it’s the right thing to do.”
This May, Illinois legislators passed a password protection bill that amends the state’s existing Right to Privacy in the Workplace Act. As in Maryland, the law would ideally guard both individual privacy and prevent public entities (as well as private companies) from being the subject of any litigation for intruding on individual privacy. During debate over the bill, law enforcement agencies, some of which request social media passwords, expressed disappointment with the bill, saying the practice was important in evaluating job candidates. The need to secure personal privacy, however, trumped those concerns. “What would be next?” asks Illinois Rep. Ford, the bill’s sponsor. “We want the PIN for your online bank account? I don’t think anyone ever thought about asking for someone’s password for their ATM card.”
State action has also honed in on public officials themselves, or people acting in an official capacity, such as jurors. According to the National Center for State Courts, at least 12 states currently include explicit warnings about inappropriate use of social media in their jury instructions. In New York, for example, the jury instructions read: “You must not communicate with anyone about the case by any other means, including [on] social websites, such as Facebook, Myspace or Twitter.”
In August 2011, California became the first state to formalize the practice in its state code. Juror instructions have been updated, and state law now requires the officer in charge of a jury “to prevent any form of electronic or wireless communication.”
State high courts have confronted the problem in recent decisions. The Arkansas Supreme Court was forced in December to throw out the murder conviction of Erickson Dimas-Martinez, who was accused of robbing and killing a teenager, after the defendant’s lawyers discovered that one juror had been tweeting about the trial. In the most grievous breach, the individual announced that the jury had reached