Since its creation, the Internet has been viewed as something special.
In Reno v. American Civil Liberties Union et al, a three-judge District Court described the Internet as “a unique and wholly new medium of worldwide human communication.”
Understandably, legislators began crafting Internet-specific laws that deviated from the usual regulatory precedents in other media. To give an example, 47 U.S.C § 230 provides immunity to online providers from liability for publishing most kinds of third party content. In the 1990s, 47 U.S.C. § 230 was enacted, in relevant part, to “preserve the vibrant and competitive free market that presently exists for the Internet” and to “promote the continued development of the Internet.” Some have referred to this phenomenon as “Internet exceptionalism” because, for example, 47 U.S.C § 230 treats online providers more favorable than offline publishers—even when they publish the exact same content. Today, regulatory responses to social networking sites serve as a prominent example of Internet exceptionalism. Instead of treating Facebook like other similar websites, legislators have pursued social network site-specific laws, such as a law requiring age verification. However, Internet exceptionalism can create real problems. As demonstrated by 47 U.S.C. § 230, these laws can provide an unjustified advantage to one group. On the other hand, these laws can potentially hinder a business’ ability to compete with other offline competitors. Should legislators craft laws applicable only to social media sites because social media is in some way unique from various other forms of media?
In order to justify an exception, the legislators would first have to define social media in a way that would distinguish it from other media. The California legislature made an attempt to specifically regulate social media account login credentials by requiring criminals on probation to disclose all logins to their probation officer on demand. However, the law uses broad language that instead covers all electronic data—both data online and data off. In California, an individual on probation must provide “all passwords to any social media sites, including but not limited to Facebook, Instagram, MocoSpace, MySpace, or anything similar. And shall submit said sites to search at any time with or without a warrant by a peace officer.” The condition requires the offender to submit all passwords for any social media site. But what exactly is a social media site?
In People v. Lopez, Defendant Lopez argued that the term social media was too vague, unclear, and ambiguous. 2016 WL 297942 (Cal. App. Ct. 2016). The court agreed with Lopez that the term lacks a clear definition in California law. The court then defined “social networking” and “social network” using the Oxford English Dictionary. As a result, the court defined “social media sites” insanely broad: any website where users are able to share and generate content and find and connect with other users of common interests. Sounds quite a lot like the Internet, generally. If social media is something so unique as to justify carving out specific legal exception, the legislators necessarily have to explain how social media sites are unique or different from the Internet or other forms of media generally.
Defendant Lopez next argued that the statute is unconstitutional because it is overbroad. The court compares the Lopez case to People v. Ebertowski (2014), in which that court concluded: “[d]efendant’s constitutional privacy rights are not improperly abridged by the password conditions any more than they are by the search condition.” 228 Cal.App.4th 1170, 1176. As a result, the court held that the state’s interest in preventing continued criminal behavior (specially gang affiliation) outweighed the minimal invasion of Lopez’s privacy invasion. Yet, the inability to sufficiently define social media sites should lead a court to a reasonable inference that the purported site-specific law is unjustified as an overbroad restriction. Those on probation are going to feel as though they need to disclose, on demand, every single login credential in order to avoid potentially serious jail time. Would online video gaming be included? Is Amazon included (Amazon now allows users to connect to other users in order to get information such as product reviews)? If Amazon is included, does that mean all online retailers are included? A law mandating disclosure of insufficiently defined materials should without question be held unconstitutional.