California AB 632 - misguided legislation would overburden social media and undermine user privacy

The California Legislature is considering a bill from Assemblymember Davis regarding "Internet-based social networking: privacy" that would burden social media websites large and small, and does little to protect their users' privacy. The Assembly Committee on Arts, Entertainment, Sports, Tourism, and Internet Media passed the bill on March 31, 2009 (5 to 3), which means it is on to the Judiciary Committee, where it hopefully will be stopped.

Here's my take, but please be sure to have a go at sharing your own comments on the legislation below.

AB 632 attempts to:

1) require a social networking Internet Web site, as defined, to prevent an image of a person that is posted on the Internet Web site by a user of the site from being copied or reproduced without the permission of the user who posted the image.

The new version voted out of committee attempts to:

1) require that a social networking Internet Web site must clearly disclose to their users that images which are uploaded onto the social networking Internet Web site may be copied by persons who view the images without consent from the user.

2) require the social networking Internet Web site to establish a mechanism for a user to flag an image that is posted on the site for removal from the network when the image is of the person requesting removal and the image is posted by another person on the other person's Internet Web site on the network.

Though the bill cites the worthwhile goals of protecting privacy for users of social media websites, and makes lofty assertions about protecting our children from "child pornography" and something called "child erotica"(it's always tough to argue against these), the devil is in the details.  AB 632, as introduced, shows a lack of understanding of the technologies involved because effective technological protections to restrict copying and sharing of images simply don't exist.  The bill also displays ignorance as to existing federal laws that are intended to protect social media sites from onerous regulations.  The revised version coming out of committee creates a different kind of confusion.  By stating the obvious, that other users can copy images of a person without their permission, the bill actually gives the wrong impression to users and serves to undermine users' expectation of privacy.

Here's the orginal bill analysis

"Existing law provides that a person is liable for constructive invasion of privacy when he or she attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of another person engaging in a personal or familial activity under circumstances in which that other person had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used.

This bill would require a social networking Internet Web site, as defined, to prevent an image of a person that is posted on the Internet Web site by a user of the site from being copied or reproduced without the permission of the user who posted the image. The bill would also require the social networking Internet Web site to establish a mechanism for a user to flag an image that is posted on the site for removal from the network when the image is of the person requesting removal and the image is posted by another person on the other person's Internet Web site on the network."

Now let's look at the bill language in its entirety .

"THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 1708.9 is added to the Civil Code, to read:

1708.9. (a) A social networking Internet Web site shall do both
of the following:

(1) Prevent an image of a person that is posted on the Internet
Web site by a user of the site from being copied or reproduced
without the permission of the user who posted the image.

(2) Establish a mechanism for a user to flag an image that is
posted on the Internet Web site for removal from the network when the
image is that of the person requesting removal and the image is
posted by another person on the other person's Internet Web site on
the network.

(b) For purposes of this section, "social networking Internet Web
site" means a service that allows individuals to construct a public
or semipublic profile within a bounded system, articulate a list of
other users with whom they share an Internet Web site connection, and
view and traverse their list of connections and those made by others
within the system.

Analysis

Let's take the provisions one by one.

Section 1

Obviously the original provisions in section 1 are technologically impossible.  The new section 1, stating social media sites "must clearly disclose to their users that images which are uploaded onto the social networking Internet Web site may be copied by persons who view the images without consent from the user," actually undermines the fact that the subject of the image does have rights to privacy and may be able to assert those rights against the person posting the image.  In this sense, the bill stepped out of the technological pit of quicksand and succeeded in reinventing itself as threat to privacy rights and privacy expectations.

Section 2

This provision requires "a mechanism for a user to flag an image that is posted on the Internet Web site for removal from the network when the image is that of the person requesting removal and the image is posted by another person on the other person's Internet Web site on the network."  Most "social media" websites such as Flickr, Facebook, Myspace, and even many more traditional web forums, have various "flag inappropriate content mechanisms."  In general it is a good idea to have these types of safeguards.  However, is it appropriate to legislate, especially at the state level, that this specific flagging mechanism requirement any time a website has social media funcionality?

- This bill says nothing of what sites should do, or have to do with the flagged content.  With absence of that language, the bill appears to have no teeth.  Indeed, on many sites, perhaps a private message to the individual user (assuming they are not hostile to the subject) may suffice where this flagging mechanism places no requirements on the website.  If the bill did have teeth, however, it might chew into legal territory covered by the Communications Decency Act Section 230 (CDA 230) and the Digital Millenium Copyright Act section 512 safe harbors.  These two sections provide reasonable cover for social media sites from the content posted and shared by their users.  Provisions that require social media sites to provide flagging mechanisms for content believed to be an invasion of privacy, or that would require social media sites to take specific action regarding the offending content, seem to contradict CDA 230 which states,

- There may be better technologies that come along in the near future that don't fit into the rubrick of flagging an image.

- Many smaller, startup or personal websites may not be able to incorporate flagging technology, yet may have "social networking" functionality.

Definition of social networking Internet "Web site"

The bill defines a "social networking Internet Web site" as "a service that allows individuals to construct a public or semipublic profile within a bounded system, articulate a list of other users with whom they share an Internet Web site connection, and view and traverse their list of connections and those made by others within the system."  This is extraordinarily broad and covers many more services than simply Facebook, Myspace, and LinkedIn.  Indeed, this is extremely broad, and many other websites the author may have never considered have this functionality.  Also, how does Distributed social networking fit into this?  With websites and web based technologies becoming ever more pluggable and shareable, will most websites 5 years from now even fit this mold?

Conclusions & Questions

So the bill's provisions end up being not only nonsensical, but also create (however slight) an advantage for established social media sites who can pay for the flagging technology required.  Haven't we learned anything from the entrenched media of the past?  Let's keep our new media public meeting places, private or public, large or small, on equal footing.

"Wrong Way ... Way Wrong " by Bob Fornal shared under Creative Commons Attribution-Noncommercial Sharealike 2.0 .