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.”
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.