Judge: Using Publicly-Available Twitter Profile Info Is Like Stealing Social Security Numbers

from the #wat dept

A potential class action lawsuit against Twitter and the creators of a short-lived app that allowed users to "buy" and "sell" celebrities' Twitter accounts has raised some questions about a federal judge's grasp on social media reality and the First Amendment.

The background: Jason Parker -- fronting an Alabama-based class action suit [original filing here] -- sued Twitter and Hey, Inc. back in August, claiming Hey's "Famous" app violated the state's right of publicity law. (We won't get into how ridiculous many "right of publicity" laws are as this lawsuit may not even survive a motion to dismiss even after it's amended.) The app, called "Famous: The Celebrity Twitter" allowed users to collect, buy, and trade Twitter profiles of famous people using virtual currency.

For some reason, this made a bunch of people angry. The app's gameplay -- buying and selling people -- was somewhat unsavory, but it was all based on publicly-available Twitter profile information. Twitter allowed the app to pull this data for use in the game. The game underwent some changes after Congresswoman Katherine Clark sent a letter to Twitter telling it to remove all "unconsenting" profiles, whatever that meant.

Hey, Inc. pulled the app and retooled it, releasing it a month later as simply "Famous." Gone was the virtual currency (almost) and the buying and selling of Twitter profiles. Instead, players "invested" in celebrity Twitter accounts with "hearts," which could be purchased with real money.

The class action suit persisted as Parker's right of publicity claims wasn't based on whether Twitter profiles were bought/sold/stolen, but rather that Twitter didn't have the right to make this information available to the app creators. Despite voluntarily using a service and providing Twitter with profile information, Parker (and users similarly situated) somehow believe they should be able to control how their Twitter profile information is used.

Supposedly, Hey, Inc. -- with Twitter's "collusion" -- is "exploiting" thousands of profiles for profit without their "consent." This must be Parker's first experience with a social media platform if he thinks Twitter is the only one "exploiting" users and their data for profit. Sure, it looks a bit more unseemly when an app allows users to buy and sell other people's profiles for in-game currency/hearts, but all of this voluntarily-provided data can be accessed by anyone, with or without Twitter's strict approval. (Use of Twitter's API is subject to some restrictions, but public profile information can be seen by anyone, even without a Twitter account.)

Twitter has been in court arguing that Parker's claims -- if upheld -- will violate it and its users' First Amendment right, as reported by Helen Christophi of Courthouse News.

At oral argument Thursday, [Judge William] Alsup assailed Twitter’s argument that Parker’s right-of-publicity claim violates the First Amendment by seeking to curb users’ activities with each other’s profiles.

“I don’t see how you can even make that argument with a straight face,” Alsup told Twitter attorney Matthew Brown.

Brown replied: “Twitter has the First Amendment right to disseminate the information.”

This is a legitimate argument. Dissemination of information is protected speech. Judge William Alsup -- who has done good IP work elsewhere -- somehow managed to make the following retort without realizing how completely off-base his comparison is.

Alsup took issue with that, likening it to criminals stealing and sharing Social Security numbers.

“I can’t believe the First Amendment allows that kind of criminal conduct,” Alsup said. “You’re telling me that’s protected by the First Amendment? No way. You’re disclosing their personas.”

WTF.

Information voluntarily provided to Twitter for profiles is in NO WAY comparable to other personally-identifiable information that is traditionally safeguarded by users and platforms alike. The app's use of Twitter's API only pulls publicly-available profile information that has been provided by users. Anyone whose Twitter account is public is "disclosing their persona." No one's doing that with their Social Security numbers. (If they are, good lord please get off the internet.) Twitter isn't digging up information not voluntarily provided by users and adding that to the pool of data by Hey Inc.'s game. Jason Parker's "right of publicity" isn't being violated and the use of publicly-available data is decidedly not a criminal act.

Parker's lawyer didn't do any better than Judge Alsup with his assertions.

Parker’s attorney Tievsky said the Constitution does not protect Twitter in this case.

“The point here is, in the use of my client’s name and likeness, there is no creative expression, there is a mere taking of information and putting it in another place and another context, and that’s what becomes problematic,” Tievsky said. “We’re not talking about the kind of expressive work we recognize for First Amendment protection.”

The First Amendment doesn't just protect for expressive works. As was stated earlier, the publication of information/data is protected by the First Amendment. If it wasn't, every person with a beef about their failed lawsuits and/or criminal convictions would be able to scrub the web of public documents containing these details (along with any reporting using these documents as source material) because this publication would no longer be protected speech.

Just because Parker and Judge Alsup don't like the app's gameplay doesn't mean Hey, Inc. or Twitter are committing some form of new digital crime and/or working outside of the confines of protected speech.

Hopefully, these arguments won't become worse as the case moves forward. Judge Alsup has given Parker permission to amend his filing and claims he needs an "expert on consent" to help sort things out. Parker claims he never consented to Twitter allowing third parties to use his voluntarily-provided profile data, but that's a claim that's going to be extremely difficult to assert successfully. The information was already out there for any third party to access. Twitter just made it simpler.


Reader Comments

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  • identicon
    kallethen, 14 Dec 2016 @ 12:18pm

    This is like suing people for using the phone book, right?

    I'm honestly surprised Alsup took the stance he did.

    reply to this | link to this | view in chronology ]

  • identicon
    I.T. Guy, 14 Dec 2016 @ 12:33pm

    Ya know... there used to be this big ass yellow book that got dropped off at my front door many many... many years ago. The evil bastards, the authors, dared to compile everyone's address and phone number and deliver it to EVERYONE!!! They even dared to CHARGE YOU MONEY to be taken off said list.

    I guess those authors were thrown in jail or something because the big yellow book stopped coming.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Dec 2016 @ 12:41pm

    You keep using the judge's name here on your for profit website. That judge is gonna shut you down for using his personal details!

    reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 14 Dec 2016 @ 12:48pm

    Twitter: By Twits, for Twits!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Dec 2016 @ 12:55pm

    First off, why would anyone pay the money to use the app!!!

    Do people on twitter just have money lying around to waste on this?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Dec 2016 @ 12:56pm

    "I don’t see how you can even make that argument with a straight face"

    Judge Alsup apparently views the First Amendment as joke that makes him laugh.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 14 Dec 2016 @ 1:11pm

    What the hell is wrong with some people?

    Comparing my twitter bio to my social security number...this shows a deep lack of understanding of the platform.
    We really should require Judges to have a grasp of the issues they hear about.

    Google copies and repeats my twitter bio in its search engine, I don't believe there are magical publicity rights that should cost them billions.

    This is someone taking their 'IP' (in the loosest terms) and trying to bully someone with deep pockets into paying them.
    If you didn't want to appear in the game, you can press a couple buttons and remove your account.
    If you didn't want to have your publicly shared avatar seen, maybe use a different picture?

    IP there is very little it can't do these days, sadly the biggest thing is make sense.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Dec 2016 @ 1:37pm

      Re:

      >What the hell is wrong with some people?

      Some people are so vain, that whenever money and their name is mentioned, they think that the money is earned because of their name, and they want their cut, of 150%!

      reply to this | link to this | view in chronology ]

    • identicon
      Bruce C., 15 Dec 2016 @ 12:25pm

      Re: Judges

      Playing devil's advocate here, I hope Twitter's lawyers were more thorough than only playing the first amendment card. Even if the judge rejects the First amendment claim, Parker still has to prove that he didn't agree to Twitter's terms of service and privacy policy, as well as the "publicly available" argument.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Dec 2016 @ 1:44pm

    would someone more clever than me like to explain how the hell people like this get to become judges? seems to me that there is more brains and common sense in an idiot that being displayed by this guy (and no offense meant to anyone who is an idiot!)!

    reply to this | link to this | view in chronology ]

    • identicon
      kallethen, 15 Dec 2016 @ 5:43am

      Re:

      To be fair, Judge Alsup handled the Oracle vs. Google case very well, going so far as to learn a bit about programming to better understand the issues regarding APIs.

      That's why I'm shocked at his response here.

      reply to this | link to this | view in chronology ]

  • identicon
    TripMN, 14 Dec 2016 @ 2:28pm

    Is the information age that hard to grasp?

    I read - blah blah Judge Alsup... and was like, 'okay, someone sensible hearing the case'. Then I kept reading and was like 'damn, he just removed most of his credibility as a good judge that understands the modern information world'. Someone should force him to use Twitter for a month and then see what he thinks about the publicly available information that people keep spewing, especially the 'celebrities'.

    I think a better analogy would be this being like cutting pictures out of a newspaper and making a collage where the pictures are selfies famous people took that included their name and favorite color.

    Not only did these people do it themselves, they did it because they wanted it to be seen.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Dec 2016 @ 3:35pm

    > Alsup took issue with that, likening it to criminals stealing and sharing Social Security numbers.

    It isn't "sharing Social Security numbers" which is the crime. Credit reporting agencies and banks and such do that all the time.

    The crime is the stealing of them via burglary or computer hacking or what have you, or identity fraud if you use them for that.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Dec 2016 @ 3:45pm

    ok if no one else is going to say it.....

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Dec 2016 @ 3:46pm

      Re: ok if no one else is going to say it.....

      Who_tf is Jason Parker, why does he mistakenly think he is famous and who made him this way?

      reply to this | link to this | view in chronology ]

      • icon
        Aaron Walkhouse (profile), 15 Dec 2016 @ 12:56am

        Maybe it's this guy:

        https://en.wikipedia.org/wiki/Jason_Parker_%28American_football%29

        NFL wannabe, never made it, spent a few years in the UFL
        (which collapsed five years ago) so his money's running out.

        reply to this | link to this | view in chronology ]

        • icon
          That Anonymous Coward (profile), 15 Dec 2016 @ 10:41am

          Re: Maybe it's this guy:

          That would make sense, as a majority of publicity rights cases seem to be coming out of sports.
          Put a tattoo on someone & they dare to make him look life like in a game?? You deserve millions.
          You were on a team & didn't get a super deal?? You deserve millions.
          You're a dead star and your estate makes money licensing your likeness to hock crap on tv?? You deserve millions if someone mentions you in a book.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Dec 2016 @ 10:23am

          Re: Maybe it's this guy:

          Neat, I made TechDirt.

          C+ for the effort in trying to dox me, but F on the execution. It's really not difficult to find me if you try.

          reply to this | link to this | view in chronology ]

  • identicon
    Susan, 14 Dec 2016 @ 11:24pm

    Right of Publicity

    Right of publicity and privacy both limit any First Amendment rights. If a person puts their picture and name and other information onto Twitter, there is no right for a third party company to take those photos and other info and use it to make a for-profit game out of it. If you want to make a game where you make money using the name and photograph of Katy Perry -- that violates her right of publicity. Right of publicity has to do with trying to make money off the name and fame of famous people, without their consent. It would have made more sense, if legally possible, to file this lawsuit in California, which is where Twitter is located, which is where many celebrities are located or have lawyers, and which has a very robust Right of Publicity law, along with lawyers and judges who understand that law. There is no First Amendment right that I ever heard of to make a for-profit game using the names and likenesses of famous people without their permission.

    reply to this | link to this | view in chronology ]

    • icon
      Frozen Njal (profile), 15 Dec 2016 @ 4:31am

      Re: Right of Publicity

      Right of Publicity is a very made-up right. It's not a natural right.

      Additionally, if you put yourself on a public platform, you are pretty much agreeing that someone will do something with your information, whether it is simple lists, or games like this.

      It's one thing someone using your likeness or name to endorse a product without your agreement. However, all that is being traded here is information that the CELEBRITIES THEMSELVES made *public*. So if the public wants to trade that information, they have every right, especially under the First Amendment.

      Celebrities work by getting themselves known and some of their information public. So they can't complain when that public information is used in a way that causes neither them nor anyone else any harm.

      reply to this | link to this | view in chronology ]

      • icon
        suebasko (profile), 15 Dec 2016 @ 2:48pm

        Re: Re: Right of Publicity

        A lot of what you say is true. However, since the company made a game for profit and used the names and likenesses of famous people to promote and sell the game, they can complain that it violates their rights.

        I don't know what a "natural right" is or what it might have to do with this or any court case.

        The main weakness I see in this case is that the person who filed the case does not seem to be famous and I highly doubt anyone was trading his Twitter profile. If he was not being traded in the game, I doubt he'd have standing to sue. I wonder if anyone checked on this?

        reply to this | link to this | view in chronology ]


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