The new social contract: Twitter, Parler, Facebook and the law

When we use their service for the first time, we agree to the terms of use (GTC) with consumer-oriented technology platforms, which determine how we use their platform and how we are not allowed to use it.

Social media companies have long struggled with balancing content moderation with the user’s ability to post the content they want to post. However, the politically charged times we live in have extended this debate to tech companies outside the social sector, raising new questions about how well these companies should consider the context of the outside world when making internal decisions about what to allow and what to prohibit .

Twitter: 330 million users

On Friday, January 9th, Twitter posted a “permanent suspension” on President Donald J. Trump’s Twitter account.

Twitter first suspended, but not removed, President Trump’s account on Thursday after ordering certain offensive tweets to be deleted on Wednesday following the events at the Capitol building in Washington, DC. Twitter said Thursday that President Trump’s account suspension would last until the tweets ended, and that any further violation of Twitter rules could result in Trump’s permanent account suspension, which it did on Friday.

This is all new territory as social media is still relatively young and it is definitely new to use it as a tool for world leaders to communicate with a large audience.

In a detailed public statement released on Friday, Twitter provided an in-depth explanation and assessment of President Trump’s tweets that led to his permanent suspension. In particular, two of his tweets on Thursday were interpreted by Twitter in their public statement as intended to incite violence, as seen in the context of the week’s events:

On January 8, 2021, President Donald J. Trump tweeted:

“The 75,000,000 great American patriots who voted for me, AMERICA FIRST, and MAKING AMERICA BIG AGAIN, will continue to have a HUGE VOTE. You will not be disregarded or treated unfairly in any way, in any form or in any way! “

Shortly thereafter, the president tweeted:

“Everyone who asked, I will not go to the inauguration on January 20th.”

After Twitter found these tweets violated its “policy of glorifying violence,” Twitter made the suspension permanent.

Twitter had previously made exceptions to its rules for President Trump, who had been granted a special exemption that allowed him to tweet content that violated Twitter’s Terms of Service. The argument was that it was in the public interest of the President of the United States to keep this content.

This is where things get complicated. When technology companies allow exceptions to their contractual terms of use, it not only polarizes public opinion, but also weakens the strength of a contract that should apply to all users under all circumstances.

Facebook and Instagram: 3.7 billion users

Facebook acquired Instagram in 2012 and has long had the largest user base of any social platform.

Facebook founder and CEO Mark Zuckerberg wrote a post on Facebook announcing that President Trump will be banned from using either service:

“We believe the risk that the president will continue to use our service during this time is just too great.”

In the same post, Zuckerberg adds:

“That is why we are extending the block that we have placed on his Facebook and Instagram accounts indefinitely and for at least the next two weeks until the peaceful change of power is complete.”

While this is not currently a permanent ban, the basis for the Facebook / Instagram ban is essentially the same – online billing in the form of an indefinite suspension for using the service in a manner deemed harmful by the service provider.

The problem here, which is exactly the same as in the Twitter situation, is how content moderation is done. President Trump has made similar statements on the Facebook platforms before – some of them arguably worse. Decisions about user violations of the rules and conditions of use of a platform are therefore never made in a vacuum, but in the context of the world around us, and this can become very difficult very quickly.

Parler: 1.5 million users

The situation at Parler is different from that of Twitter, Facebook and Instagram.

Here Amazon, Google and Apple have obtained their services from Parler – themselves referred to as “freedom of speech” – since Parler users play a role in the organization of the events on Wednesday in the Capitol.

Without these basic services, no social media application can exist. You control everything, including how users download the app on their devices, how and where the data is transferred – literally everything but the design of the website itself and the user experience.

The systematic downsizing of Parler, a comparatively new player in the social networking market, began shortly after the events at the Capitol, when Apple and Google withdrew Parler from their app stores. On Saturday, Amazon effectively killed the platform by announcing that it would be shut down from servers for Parler, which at least temporarily ceased operations late Sunday.

As Parler struggles to rebuild its technology infrastructure before its users migrate to an existing or new competitor, they must find a way to address the fundamental problem that has drawn the ire of Amazon. Amazon Web Services announced that in the past few weeks, Parler has reported 98 examples of “posts that clearly encourage and incite violence”.

In a letter to Parler, Amazon sets out the terms for violating the Terms of Use:

“We have seen a steady increase in this violent content on your site, all of which violates our regulations,” wrote AWS. “It is clear that Parler does not have an effective process for complying with the AWS Terms of Use.”

It is interesting that the parler situation is presented at the same time with these platforms prohibiting their user with the highest profile. Parler’s business model is based on as many users as possible posting opinions that at least match the terms of use of the other platforms, but here it is Parler’s own service providers who have raised objections. This is something interesting to watch in a technology landscape that is becoming even denser.

Salesforce: 2.1 million users

While Salesforce has 2.1 million users, only 150,000 are paid users. However, Salesforce generates $ 17 billion annually, which makes it a formidable force to be reckoned with. And this week she decided to enter the same battle as these other tech companies after “taking action” to stop the National Committee of the Republic from sending out emails that could incite violence. The RNC used ExactTarget – a Salesforce tool – to send email to its user base.

This action, first reported in Vice on Jan. 11, is Salesforce’s response to the Trump campaign, which sent an email hours before the events on Wednesday at the Capitol, urging supporters, “NOW to reinforce “and to defend the integrity of this election”.

This is a tougher decision right now as Salesforce is intentionally vague about what action they have taken against the RNC and whether that would also affect President Trump personally or his campaign. More on this will certainly come up in the next few days.

A slippery slope?

Isn’t it a bit slippery when service providers like Apple, Google and Amazon can withdraw services on technology platforms because they don’t agree with the nature of the content?

Brian M. Marchese, an attorney at Marrone Law in Philadelphia, said:

“This question really goes to the limits of Section 230 of the Communications Decency At and why it exists.”

Section 230 states:

No provider or user of an interactive computer service may be treated as the publisher or speaker of information provided by any other information content provider.

Section 230 provides immunity from liability to providers and users of an “interactive computing service” – Twitter, Parler, Facebook, and Instagram – who are provided with information by third party users (e.g., those who tweet).

When asked whether the current and possibly future ban or suspension of public figures from these social media platforms could have a terrifying effect on freedom of expression, Marchese firmly believed it did.

“Absolutely yes, and it really brings us to the question of whether there should be any limits to what these platforms can do as private companies, which are also essentially monopolies.”

With that in mind, a member of the Legislative Counsel of the American Civil Liberties Union (ACLU) warned that the blocking of Trump’s social media accounts through Twitter and Facebook was an “uncontrolled power”.

Always understand the terms of use

When we use a technology, be it email, social media, online shopping or a content management system, we first agree to its terms of use before we are allowed to start using its offer.

Much of what we are allowed to use online, we don’t have to pay to use it. But the idea that everything related to technology is free can be an illusion. There is always something we give up in exchange and the contractual relationship is always set out in the terms of use. Always understand what you are okay with as it will affect your decision about whether it is a technology that you personally want to use.

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