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Social networks and media are one of the latest frontiers for lawyers, lawmakers, politicians, entrepreneurs and academics. No one seems to claim that social media is the final frontier! or even a particularly revolutionary frontier. After all, media and social networks have been around for thousands of years in one form or another. But, most are genuinely fascinated with the new opportunities, risks,and questions presented by the recent rapid rise of novel technology platforms that allow people all over the world to connect and communicate in new ways. Thus the usual games begin : irtnovators, early adopters, libertarians, and businesses assert that social media is not, should not and cannot be regulated,as previously with cyberspace and virtual worlds. Concerned politicians, on the other hand, claim that media is new, dangerous, and in dire need of regulation Entrepreneurs explore new ways to monetize the new phenomena. All involved create buzzwords, hype, and myths to support their respective agendas. In this article, I am taking on twelve myths that frequently come up in such discussion, including at the 2012 Symposium of the Stanford Technology Law Review on "First Amendment Challenges in the Digital Age. Consumers care about privacyThe U.S. Federal Trade Commission has publicly filed complaints and stated that the leading social media platform operators have handled their users' data in ways that harmed users by threatening their health and safety and potentially revealing their political views, sexual orientation, business relationship, and other sensitive information and affiliations to third parties without authorization. The press reported extensively' The providers apologized and settled the charges without putting up much of a defense. They continue the push for more information sharing in the interest of expanding the reach of social networks and they continue innovating and expanding the commercialization of user data. 1 Meanwhile, active social media user number are reaching record highs : as a December 31,2011, Facebook had 845 million monthly- active users, a 39 percent increase as compared to the same figure a year earlier/ Twitter experienced a 182 percent increase in the number of its mobile users between early 2010 and early 2010 and early 2011, all while the average number of Tweets per day. nearly tripled as of January 2012, Google+ amassed over 90 million registered users since launching just half a year earlier.4 The consumer have spoken: they are not concerned. People care more about getting free media than they do about their privacy.''Expectations of dataprivacy-e-Expectations of date privacy and privacy rights tend to be grossly exaggerated than these days. Fact is that most constitutional and international human rights treaties do not explicitly recognqe rights to privacy? Even if you find privacy rights in constitutions, expressly or implied, constitutional rights protect you directly only against Governments and State actors, but not typically against companies or individual social media users.s Where Courts refer to constitutional or other privacy rights, they have to balance them against other civil rights. In the social media context, privacy interest are often pitched directly against rights to free speech and information. Communication freedoms generally trump privacy rights.disclosure requirements are less restrictive on social media platform operator than they are on operators of freely accessible web portals and information sites, because social companies require registrations and log-ins. When users register and long in, social media companies can easily provide privacy notices and obtain user consent. Most users click to accept privacy notices and consent declarations without reading or understanding them. Notice and consent requirements have not resulted in meaningful. privacy protections-vis-a-vis social media platforms or any other companies. And, most importantly, such notice and consent requirements apply only to the data process practices of social media companies with respect data they collect from their users (through registration forms and cookies).2 These requirements do not apply with respect to the user-generated data that is posted on social media platform. Yet, it is the data that users post about themselves and others that tends to affect private interest most significantly. You have no privacy rights against social media companies in that regard. Law enforcement should be kept out of social media in the interest of better privacy protection.-Reports of aggressive online investigative methods by Governments around the world are good for catchy headlines. It is a fact that law enforcement authorities investigate suspect and that investigations intrude into people's privacy. Social media complies, telecommunication companies and Internet Service Providers themselves complain that Governments are over reaching in many cases. It also a 'well/known fact, however, that law enforcement authorities often act to protect children and consumer data privacy and security. Governments pursue spammers, cyber criminals and fraudsters who hack into accounts, steal identities and invade privacy.' Law enforcement protects one's privacy. In United States v. Councilman, for example, the FBI pursued the operator of an online community with a shared interest in rare books for interception of emails sent via his platform. The FBI charged Councilman with violations of U.S., privacy laws and conceded in the process that email interception constitutes a violation of federal wiretap laws} a factor that is suited to restrict the FBI's own ability to conduct investigations online. Thus, it is misleading to portray law enforcement authorities as a threat to privacy. More accurately stated, law enforcement is necessary to protect data privacy and security on social media. Personal dataTalk about informational self- determination and property law regimes to protect privacy sometimes gives people the idea that they own personal data about themselves. Fact is that no one owns facts? Factual information is largely excluded from intellectual property law protection copyright law protects only creative expression, not factual information.Right to be forgottenWhile technology innovators in the United States are working hard to be remembered, European politicians are obsessed with a right to be forgotten.' This makes for quite a symbolic illustration of the transatlantic divide between the new and old world with respect to innovation in the information age. The fact that "right to be forgotten" is presented in the form of new legislation demonstrates that it is not currently the law, not even in Europe.i Fact is that you currently have right to remain silent, keep information about you confidential, obtain injunctions against defamation, and demand correction of inaccurate information. But, just as you do not own information about yourself, you do not have a general right to demand that others delete all information about you. Other people have a right to inform themselves about the world, including about you. The right to free speech and information is protected against Government interference inmost constitutions around the world.A desire to be forgetten sounds a bit pathetic, but right to be forgotten, to control other people's memory, sounds outright scary-straight from George Orwell's vision of 1984 actually, where the Government was obsessed with constantly re-writing history and controlling citizen's memories.' The European Commission apparently wants to entitle everyone to demand erasure of information, induding text and pictures create by other friends, family and other friends, family and other users in other users' accounts of This will cause significant intrusions into other people's rights. A right to be forgotten would also create a colossal administrative burden.' Someone would have to have for the detention and deletion of data that can end up in myriad accounts and places in social networks. Social media platform operators could either charge the data subject who exercises the right to be forgotten or all users. Commercially successful, well-established social media platform providers. could also cover the compliance costs themselves out of profits generated through sales of advertising, but start-up companies with charge- free business models would be unduly burdened if they cannot pass on costs. This could further innovation in Europe. During the 2012 Symposium of the Stanford Technology Law Journal on "First Amendment Challenges in the Digital Age," Professor Franz. Werro argued for a right to be forgotten in reference to an incident that recently occurred in Switzerland : a bank robber had served a long prison sentence, then started a new career and became a successful businessman. Many years later, a journalist tracked him down and reported on his past, putting his new existence in jeopardy. Professor Werro argued that the ex-convict-turned-successful- businessman has a that want to attract and protect uncensored speech, radical opinions, and political dissidents will typically allow users to choose fantasy names. But, just a homeowner or a hotel owner has the right to verify the identity. of a guest who wants to set foot on her property, operators of social media sites have a legitimate interest and rights to require truthful identity information and that people use their real name on the site. Social media platforms that want to minimize disputes between users or with third parties may prefer to required everyone to use their real name2 because //[p ]eople behave a lot better when they have their real names down." If in spite of such requirements users provide fake names, then they breach contracts terms, trespass on servers, and potentially violate computer interference laws, such as the U.S. Computer Fraud and Abuse Act. Significant threat to privacyActivist, academic, and regulators are quite discontented with tracking, profiling and behavioral advertising. The practices are also not particularly with users who understand them.But can they really be perceived as a significant threat to privacy "Where is the harm" All that advertisers want is to display more relevant advertisement to consumer. That ill itself is hardly a bad thing. Relevant advertisements are better than irrelevant advertisement. Some consumers might prefer seeing these options are not available in practice, though. Advertiser need tracking information to target ads, and social media companies need funding from advertisers in order to offer services free of change to consumers. Without advertisement dollars, Internet companies would never have created all the service that we have come to enjoy and depend on in our daily lives, including web search, maps and social media. Governments could not have created them with taxpayer and paid services are much less quickly adopted and usually only on the heels of charge free service. 1 Most consumers are more or less aware of the trade off and the fact that pay for service with their data and willingness to endure ads. They are also quite willing to allow tracking offline. For example, shoppers routinely let retailers build extensive profile on their consumption habits in return for a small discount.f Of course, it is possible that user profiles by advertisers can be abused by others. For example, health insurance companies and employers could use information in user profiles to discriminate against sick people if they gain access.' but, such threats to privacy emanate primarily from the practices of health insurance companies and employers. Such concerns should be-and are4-addressed in insurance regulations and labour laws. Another group of commonly cited examples relates to fears regarding abuse of user profiles by criminals and Governments Such fears also do not support attempts to cast advertisers as the primary threat to privacy, because criminals and Governments play the lead role in these horror stories and point to solutions in the form of stricter laws on data security and Government access. Social Media Companies threaten your privacySome people attributed whatever privacy intrusion occurs in a social media context to the companies that operate the networks? Fact is that some social media companies have had to settle privacy related lawsuits and charges Missteps are part of growing pains of any new industry, particularly one driven by new technologies and start-up companies operating in a rapidly developing legal environment.In the cases referenced earlier.' social media companies were primarily charged because of data security weaknesses and failure to provide sufficiently conspicuous notice when prompting consumers to consent to changes. Data security and consumer consent requirements have been in flux for years and companies have been struggling to keep up or catch up with the law? It is no surprise that social media companies have also had difficulties clearing compliance hurdles as the bars are being raised. There is no reason, however, to take such missteps as an indication that social media companies constitute a systematic threat to privacy. Social media companies are strongly incentives to avoid harming users or prospective users. They are operated for profit and have to cater to user demands. Social media companies create technology platforms and offer features that- users demand. Most privacy threats in the social media sphere have emanated from the manner in which people have used social media platforms.' Social media companies do not select or post any harmful information. Individual users add the personal data. If users cannot be social and share data on social media platforms, then they will disseminate information in person, over the phone, on Internet blogs, and elsewhere. The urge of individuals to be social and share information is what has the greatest effect on privacy. Social networksWhenever new technologies establish themselves, people wonder whether no laws apply yet. Some' wish to preserve the presumed legal no-man's-land status while others scream for specific legislation.' When the Internet first became popular, some were quick to declare the independence of cyberspace/ while others demanded new laws.3 Similar clairns surfaced when virtual worlds arrived on the radar .0£ public opinion.' New technologies often make politicians wonder whether fundamental regulatory or statutory gaps exist.Upon closer review, however, this is relatively rarely the case.5 Existing rules can be and are, in fact, continuously applied to new technological, economic, and social developments, supplemented and adapted from time to time European privacy laws are better, and the United States has to catch upClaims have been made for a long time that the European data protection law regime is more effective. than the U.s. approach, often in support for federal legislation in the United States.Fact is that the U.S. approach to privacy legislation is different from the European approach Congress reviewed and consciously rejected a proposal for European-style, omnibus privacy legislation in 1974. Since then the U.S. has been addressing data processing activities only with respect to specific, compelling threats, via general consumer protection laws and narrowly crafted statues/' U.S. laws have been enforced effectively in practice" and also have been continuously supplemented and updated to address specific threats; for example, data security breach notification laws were passed in California in 2002. European Legislatures, on the other hand, have tried since 1970 to regulate the processing of personal data through broad, omnibus legislation based on a general prohibition of automated data processing with limited exceptions, companies to obtain prior Government approvals for many date related activities. European data protection laws have not historically differentiated much with respect to particular threats, industries, or types of data. They have remained relatively static over the years. Enforcement by data protection authorities has been lax throughout much of the European data protection laws' history and private enforcement has been nearly non-existent? Thus, differences between U.S. data privacy and European data protection laws are indeed significant. It is hardly a proven fact, however, that European data protection laws protect individual privacy better than the U.s.1 Due to the historic lack of enforcement of data protection laws in Europe, there is still a wide gap between assertions by European data protection authorities and legal documentaries as to what is allowed and forbidden and what companies and Government authorities are actually doing and getting away with. In many ways, European data protection laws are overboard, under enforced, outdated and awaiting reality checks in Courts. Take data security breaches, for example: the broad, omnibus information requirements under existing European data protection laws have arguably always required companies to inform data subjects of security breach, however, in practice European companies have rarely disclosed breaches. Now, ten years after -California passed the first law specifically requiring data security breach notifications, the European Union is working on similar legislation to address the serious threats to data security that have become acute in the last two decades.1 In general, the European Union considers its own privacy law regime so deficient and outdated that it has recently proposed a complete overhaul, specifical~ referencing a need to update the rules on personal data in social media. Thus, it seems a myth that the European Union is somehow ahead of the U.S. in terms of social media privacy protections. With respect to personal data on social media platforms, the current European data protection regime offers hardly any protection at all given that European data protection laws exempt data processing by individuals for personal and private household purposes. The only aspect of social media privacy protection that is covered by existing omnibus European data protection laws is data collection by social media companies for their own purposes, primarily, through registration processes and cookies. With respect to data collection through cookies and other tracking technologies, the general European data protection laws from the early 1970s would already seem to require Internet companies to obtain prior, informed, voluntary, specific, express, and written consent, given that no other exception allowing this practice was provided for in statutes? In this respect, the European omnibus legislation approach could have offered superior protection for individual data privacy, because the general prohibition of automated date processing should have captured cookie placement at the outset, without any need for special or updated legislation, whereas the United States' approach would have left consumers unprotected until threats evolved and the Legislature or the Courts reacted. But, this would have been true only if anyone had taken the broad European omnibus laws seriously. This is not how things played out in practice, though. Companies placed cookies in the United States and Europe without asking for consent. European data protection authorities did not enforce their laws and in 2002, the European Union passed special legislation sanctionin§ the practice by allowing companies to place cookies unless users opted out. In 2009, the European Union made an efforts to restore what seems to have been the law all along sine 1970 and required companies to obtain prior opt-in consent before they placed cookies for marketing purposes. Many of the European Area member states are dragging their feet on the implementation, however, and it remains to the seen whether the "remake" will be taken more seriously than the "original." In the meantime, U.S, social media companies are offering their services very successfully and without significant modifications in Europe. |
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