|
MichelleXiaoFirstPaper 2 - 25 Mar 2024 - Main.MichelleXiao
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| |
<
< | The Price We Shouldn't Have to Pay | >
> | Social Media Platforms & The Loss of Autonomy | | | -- By MichelleXiao - 01 Mar 2024 | |
<
< | Olmstead v. U.S.: Setting the Stage for the Invasion of Privacy
In Olmstead v. United States (1928), the government suspected Olmstead of being the “leading conspirator and the general manager… of a conspiracy to violate the Prohibition Act” (277 U.S. 456). The government gathered information leading to the discovery of the conspiracy in large part by “intercepting messages on the telephones of the conspirators” (Id. at 457). They did so by tapping the defendants' house lines in the streets near their houses but without any physical trespass upon any of the defendants’ properties. Olmstead argued that tapping his phone conversations violated the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated." However, the Court found that there was no search or seizure as defined by the Fourth Amendment when the government listened in on Olmstead’s calls. The Court also argued that the language of the Amendment “cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office,” arguing that the wires that were not part of Olmstead’s home or office belonged no more to him as the “highways along which they are stretched.” (Id. at 466). | >
> | Social Media Platforms & Addiction | | | | |
>
> | It is no secret that businesses want to make money and will cater their products towards this goal. Sometimes this may result in companies promoting products or behaviors that are harmful to their consumers and may result in addiction and the consequences that come along with addiction. For example, the tobacco industry perpetuated a narrative of minimizing the harms that smoking had, “manipulating and denying both the addictive nature of their products and their marketing to children.” As technology advanced, new types of addiction developed alongside it. Social media companies like Meta Platforms, Inc. (“Meta”), which owns Instagram and Facebook, are now in the spotlight for their practices and resulting alleged harm of addiction, especially in children. | | | | |
<
< | Katz v. U.S.: A Small Resurrection of Privacy
It took 40 years, but privacy concerns were finally addressed and honored in Katz v. United States (1967). Katz was convicted of violating federal gambling laws, and the leading evidence against him were phone conversations in which the government obtained by wire-tapping a nearby line to the public phone booth Katz used. In this case, however, the Court argued that Olmstead had been eroded and that the government’s wire-tapping “violated the privacy upon which [Katz] justifiably relied while using the telephone booth, and thus constituted a "search and seizure" within the meaning of the Fourth Amendment'' (389 U.S. 354). The Court clarified that the spirit of the Fourth Amendment was to protect U.S. citizens against unlawful government intrusion, and this protection was not limited to the physical place of the home. | | | | |
<
< | The Ineffectiveness of Constitutional Rights to Protect Personal Privacy Now
The sentiment behind the Court’s decision in Katz v. U.S. was correct, but none of it is enough to protect the privacy of everyday citizens now. In Griswold v. Connecticut, the Supreme Court established an implied right to privacy through the penumbras of other explicit constitutional protections from the First, Third, Fourth, Fifth, and Ninth Amendments. However, none of these constitutional protections is enough to protect citizens now from corporations that are invading their privacy in even more evil ways than the government had done in Olmstead and Katz. | >
> | Current Litigation | | | | |
>
> | Currently, the biggest case regarding this alleged harm is the Multi-District Litigation (“MDL”) against Meta’s Facebook and Instagram platforms (with co-defendants including Snapchat, TikTok? , Youtube, and Google) titled In re: Social Social Media Adolescent Addiction/Personal Injury Products Liability Litigation (MDL No. 3047). The argument detailed in the Master Complaint takes an interesting approach regarding the damages as one of civil law tort that accuses the social media platforms of product defects and failure to warn. | | | | |
<
< | Voice-Activated Assistants
For example, any device with voice-activated assistant tools are always listening in on your conversations. Siri on your iPhone and Google Assistant on Google Home advertise to only engage once they are activated with key words like “Hey Siri” or “Hey Google.” However, these devices are listening to everything you say in order to hear their key activation words, and it isn’t even an invasion of privacy in the legal sense because you agreed to this in the Terms and Conditions of these devices. The listening and recording of personal conversations that user have with the expectation of privacy feels similar to what the government did in Olmstead and Katz. Perhaps this makes sense with specific virtual assistant devices like the Google Home, but it feels different knowing that smartphones automatically begin this process if you purchase the phone, even if you never use Siri. | | | | |
<
< | Selling Your Information
It is already unsettling to know that simply because you possess a device with a virtual assistant, you are being listened to at every moment of the day. However, it is even more unsettling what they do with this information. Google and Apple are constantly building profiles on you, tracking your likes and dislikes, interests, and even your sex life. Every single thing you’ve said or googled mapped out onto a digital profile. Then companies like Google put this information onto sites like Google Adsense to give third parties the opportunity to bid on how much advertising space they want to purchase for you. For example, if I have an interest in jewelry, Google lets third-party advertisers know they have a user like this, and these advertisers then bid in real-time for the same advertising spaces of the next page I load.
While this targeted advertising feels particularly manipulative to consumers, it doesn’t technically break any laws regarding privacy because Google is not selling your actual information. The real-time bidding that third-party advertisers pay for is the advertising space, not the actual consumer data. And even if these companies did sell your actual data, what would it matter if you signed the Terms and Conditions? | >
> | What Meta Does
Meta’s Facebook and Instagram platforms are generally free to use for users. They make money primarily from selling advertisement space to third parties. They do this by collecting information about their users to build a personalized consumer profile. Then, advertisers can purchase advertising space based on the users’ specific preferences (i.e. targeted advertising). Because of Meta’s business models, “profits from these platforms are highly dependent on the number of users, the amount of time each user spends on the platform, and the amount of information a user provides, directly or indirectly, to the platform about themselves.”
In other words, Meta has an incentive to develop platform algorithms and features that will increase the amount of time that current and future users will spend on the platform. This incentive can cause these platforms to implement measures that may not be beneficial or may even harm its users if it helps increase the amount of time spent on their apps and therefore profit.
Alleged Design Defects
The Master Complaint details many ways that the defendants’ platforms cause physical and emotional harm, including disordered eating, idealizing suicide, and encouraging social comparison. These are the most relevant alleged product defects regarding Meta’s Facebook and Instagram:
Endless-content: Facebook’s “News Feed’ presents a continuous feed of content (posts, advertisements, etc.) that users can scroll through, which never ends.
Intermittent Variable Rewards or “IVR”: Instagram specifically designed algorithms to “strategically time when they show content in order to maximize engagement.” For example, they may delay notifications of interactions (likes and comments) on a users’ posts until there are multiple interactions so that when the user does receive the notification, there is an increased and stronger dopamine reaction.
Ephemeral Content: Facebook and Instagram create a sense of urgency to see content using “Stories” because there is a time limit on how long the content is available (similar to fear of missing out).
Notifications: Facebook and Instagram send push notifications to users’ phones (texts and emails) to draw them back to their respective platforms, sending many notifications about new content generally and new interactions with their content.
Algorithmic Prioritization of Content: Facebook and Instagram use “engagement-based algorithms that promote content to users based on the likelihood it will keep them engaged with and using the platform rather than post content as specifically directed by users or in chronological order.”
Defenses: Section 230 and the First Amendment
Meta has been able to shield itself from many of the alleged defects through Section 230 and First Amendment defenses. Essentially, some of the most controversial tactics, like notification timing and clustering and addictive algorithms are classified by this Court as “traditional editorial functions that are essential to publishing” because they do not change the content that is being published. Rather, they only choose how, what, and when users see this content, which is standard to publishing. Examples of these related to Meta’s Facebook and Instagram include: “failing to put ‘default protective limits on the length and frequency of sessions’... not providing a beginning and end to a user’s “Feed”...limiting content to short-form and ephemeral content…timing and clustering of notifications of third-party content in a way that promotes addiction...use of algorithms to promote addictive engagement.”
Additionally, Meta has used the First Amendment to protect the choices they have made in disseminating user-created content and speech. For example, the “timing and clustering of notifications of the defendants’ content to increase addictive use,” is classified as speech and requiring platforms to change when and how they publish speech is barred by the First Amendment.
The Loss of Autonomy
While I understand that a legal privacy argument was not necessarily viable here, I do think that it is worth considering from a policy standpoint. As Professor Eben Moglen has taught, privacy may refer to three types: secrecy, anonymity, and autonomy. With these targeted social media algorithms inducing addiction in children and others, the greatest violation of privacy arises from an autonomy perspective. Many of the studies in the Master Complaint conclude that social media algorithms target the reward center of the brain, in much the same way that other addictive activities do (e.g. gambling).
This is not new insight because there have been whistleblowers in the past that highlight how many resources Meta has put into maximizing their algorithm to keep people on their apps. This loss of autonomy is an infringement on our privacy, but is not recognized as such due to the belief that we have a choice in the matter. However, I believe that since social media plays a very different role in our lives than gambling at a casino, there should be greater protections in place to protect our autonomy when companies like Meta are specifically trying to use our own psychology to the contrary. | | | | |
<
< | The Price of Privacy
This is why constitutional privacy rights are useless in the digital world. There may not be a reasonable expectation of privacy when you Google things outside incognito mode, but there should be when you have a phone call or text with your loved one. Many may believe that this is the price we have to pay for convenience–that because we have a choice to not use Google, it is acceptable for Google to compromise our privacy or because we want a smartphone, we have to pay the price. However, what real choice do consumers who don’t want to spend every waking hour in the library to find answers have? What choice do employees who need to work on phones with internet access actually possess? Why does this have to be the price we pay? “The price we have to pay” is a mindset that blames the consumer for changing with the times, instead of holding multi-billion dollar tech companies accountable for finding loopholes to legally invade our privacy and profiting from doing so. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
|
|
MichelleXiaoFirstPaper 1 - 01 Mar 2024 - Main.MichelleXiao
|
|
>
> |
| META TOPICPARENT | name="FirstPaper" |
|---|
The Price We Shouldn't Have to Pay
-- By MichelleXiao - 01 Mar 2024
Olmstead v. U.S.: Setting the Stage for the Invasion of Privacy
In Olmstead v. United States (1928), the government suspected Olmstead of being the “leading conspirator and the general manager… of a conspiracy to violate the Prohibition Act” (277 U.S. 456). The government gathered information leading to the discovery of the conspiracy in large part by “intercepting messages on the telephones of the conspirators” (Id. at 457). They did so by tapping the defendants' house lines in the streets near their houses but without any physical trespass upon any of the defendants’ properties. Olmstead argued that tapping his phone conversations violated the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated." However, the Court found that there was no search or seizure as defined by the Fourth Amendment when the government listened in on Olmstead’s calls. The Court also argued that the language of the Amendment “cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office,” arguing that the wires that were not part of Olmstead’s home or office belonged no more to him as the “highways along which they are stretched.” (Id. at 466).
Katz v. U.S.: A Small Resurrection of Privacy
It took 40 years, but privacy concerns were finally addressed and honored in Katz v. United States (1967). Katz was convicted of violating federal gambling laws, and the leading evidence against him were phone conversations in which the government obtained by wire-tapping a nearby line to the public phone booth Katz used. In this case, however, the Court argued that Olmstead had been eroded and that the government’s wire-tapping “violated the privacy upon which [Katz] justifiably relied while using the telephone booth, and thus constituted a "search and seizure" within the meaning of the Fourth Amendment'' (389 U.S. 354). The Court clarified that the spirit of the Fourth Amendment was to protect U.S. citizens against unlawful government intrusion, and this protection was not limited to the physical place of the home.
The Ineffectiveness of Constitutional Rights to Protect Personal Privacy Now
The sentiment behind the Court’s decision in Katz v. U.S. was correct, but none of it is enough to protect the privacy of everyday citizens now. In Griswold v. Connecticut, the Supreme Court established an implied right to privacy through the penumbras of other explicit constitutional protections from the First, Third, Fourth, Fifth, and Ninth Amendments. However, none of these constitutional protections is enough to protect citizens now from corporations that are invading their privacy in even more evil ways than the government had done in Olmstead and Katz.
Voice-Activated Assistants
For example, any device with voice-activated assistant tools are always listening in on your conversations. Siri on your iPhone and Google Assistant on Google Home advertise to only engage once they are activated with key words like “Hey Siri” or “Hey Google.” However, these devices are listening to everything you say in order to hear their key activation words, and it isn’t even an invasion of privacy in the legal sense because you agreed to this in the Terms and Conditions of these devices. The listening and recording of personal conversations that user have with the expectation of privacy feels similar to what the government did in Olmstead and Katz. Perhaps this makes sense with specific virtual assistant devices like the Google Home, but it feels different knowing that smartphones automatically begin this process if you purchase the phone, even if you never use Siri.
Selling Your Information
It is already unsettling to know that simply because you possess a device with a virtual assistant, you are being listened to at every moment of the day. However, it is even more unsettling what they do with this information. Google and Apple are constantly building profiles on you, tracking your likes and dislikes, interests, and even your sex life. Every single thing you’ve said or googled mapped out onto a digital profile. Then companies like Google put this information onto sites like Google Adsense to give third parties the opportunity to bid on how much advertising space they want to purchase for you. For example, if I have an interest in jewelry, Google lets third-party advertisers know they have a user like this, and these advertisers then bid in real-time for the same advertising spaces of the next page I load.
While this targeted advertising feels particularly manipulative to consumers, it doesn’t technically break any laws regarding privacy because Google is not selling your actual information. The real-time bidding that third-party advertisers pay for is the advertising space, not the actual consumer data. And even if these companies did sell your actual data, what would it matter if you signed the Terms and Conditions?
The Price of Privacy
This is why constitutional privacy rights are useless in the digital world. There may not be a reasonable expectation of privacy when you Google things outside incognito mode, but there should be when you have a phone call or text with your loved one. Many may believe that this is the price we have to pay for convenience–that because we have a choice to not use Google, it is acceptable for Google to compromise our privacy or because we want a smartphone, we have to pay the price. However, what real choice do consumers who don’t want to spend every waking hour in the library to find answers have? What choice do employees who need to work on phones with internet access actually possess? Why does this have to be the price we pay? “The price we have to pay” is a mindset that blames the consumer for changing with the times, instead of holding multi-billion dollar tech companies accountable for finding loopholes to legally invade our privacy and profiting from doing so.
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines:
Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list. |
|
|
|
|
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
|
|