Last week’s NYT exposé into the intimate location data collected and shared by mobile apps (including one app that tracked a user’s location more than 14,000 times a day) is the latest in a constant stream of bombshell data privacy revelations in 2018.
A recent GlobalWebIndex survey found that 72% of consumers in the US and UK are more aware of how companies collect and use their personal data than they were 12 months ago. 70% are now more concerned about online privacy.
They also found that 64% believed that sharing personal data online is beneficial to consumers and their shopping choices, yet only 49% feel in control of their personal data online.
They aptly describe the gap between those two numbers as a “Data-Driven Trust Deficit”. And I suspect that this Trust Deficit is growing.
"If marketing kept a diary, this would be it."
- Ann Handley, Chief Content Officer of MarketingProfs
In a HBR article earlier this year, Kevin Cochrane at SAP describes the erosion of brand trust this way:
“This seemingly limitless digital economy has brought with it feelings of overexposure. No one likes to feel as if they’re being watched, yet with technology continuing to mature, we have found ourselves entrenched in a marketing machine that has become far too intimate for anyone’s liking.
“The power of digital is so great that brands have started to abuse it. And with this abuse of power has come the erosion of the trust that once existed between businesses and consumers.”
In the HBR article, Cochrane gives recommendations to marketers on how to address this, including explaining the benefits consumers will receive from sharing data, giving consumers full control over the types of data they share, and provide tools to allow customers to edit privacy settings.
Overall, if marketers want brand trust, we have to earn it through our actions. And as the old Will Rogers quote put it, “it take a lifetime to build a good reputation, but you can lose it in a minute.”
Here are a few related cartoons I’ve drawn over the years:
More than three years ago, a statute aimed at criminalizing “revenge porn” passed the Texas Legislature with rare bipartisan support — it passed both chambers with nary a “nay” vote and won a swift signature from the governor.
Now, the fledgling law faces an existential threat: a legal challenge alleging it violates free speech rights. A state appeals court in April ruled the law unconstitutional, writing that “it violates rights of too many third parties by restricting more speech than the [U.S.] Constitution permits.” Now, the case, set for submission Wednesday before the Texas Court of Criminal Appeals, awaits final reckoning.
The vast majority of states have some kind of “revenge porn” law on the books. Signed into law in June 2015, the Texas statute makes it a class A misdemeanor to publicly post intimate photos of a partner sent with the understanding that they would remain private. Conviction can bring a fine of up to $4,000 and a sentence of up to a year in jail.
Congresswoman-elect Sylvia Garcia, the Houston Democrat who authored the bill as a state senator, defended its importance.
“The law is about a horrific practice that is about victimization, not speech,” Garcia said. “The law was crafted carefully to focus on only the worst and verifiable behavior that sexually defames its victims.”
The constitutional challenge stems from the conviction of Jordan Bartlett Jones, who was charged under the statute after sharing an intimate photograph of a woman without consent, according to court documents.
His attorney, Mark Bennett, a Houston First Amendment lawyer challenging the law on constitutional grounds, said it’s a clear violation of free speech rights.
“We engage in lots of harmful speech, and it’s constitutionally protected,” Bennett said. “If a statute restricts a real and substantial amount of protected speech, then it’s void.”
In April, the Tyler-based 12th Court of Appeals agreed with him. The state asked for that appeals court to rehear the case. After it declined, the state’s highest criminal court agreed in July to take up the matter.
After this week, the case will be fully briefed, and the high court could rule any time. A decision is expected in the next several months.
The Office of the State Prosecuting Attorney, which is defending the law, argues it should stand.
“There is no ‘core political speech’ at risk here. Common sense dictates that the conduct prohibited by the statute — violations of privacy of the most intimate kind — is not necessary or even helpful to a vibrant democracy,” said John Messinger, an attorney for the state. “The Legislature determined that ‘revenge porn’ and the like leads to emotional trauma, threats of violence, and even suicide, and it passed a law to comprehensively address this serious problem. By any standard, the statute is a constitutional act of representative democracy.”
Central to the case is the question of how skeptically courts should look at laws that limit free expression. Bennett argues that the law should be subject to “strict scrutiny” from the court — a high bar that often proves difficult for states to clear. Any restrictions on fundamental speech rights, he reasons, have to be looked at skeptically.
The state, for its part, argues the law should be considered with a lower level of “intermediate scrutiny.” Because the intimate, sometimes lewd images at issue in “revenge porn” do not constitute a “matter of public concern,” the state argues, they don’t merit as much protection as speech on pressing political questions like property taxes.
“Speech that is not essential for the marketplace of ideas to function properly is not entitled to the highest level of protection afforded by the First Amendment,” state attorneys wrote in a Nov. 12 brief.
Bennett said that argument amounts to asking the high court to undo centuries of First Amendment law. Bennett is also arguing four similar “revenge porn” cases before lower courts in Texas.
The Texas attorney general’s office also weighed in to defend the law in a May 8 brief to the 12th Court of Appeals.
After criticizing the Hunt County Sheriff’s Office on its Facebook page, Deanna Robinson found herself blocked from commenting or liking its posts. Nearly two years later, her free speech case against the small law enforcement agency is reaching the 5th Circuit Court of Appeals in New Orleans.
The case could ultimately clear up what's become a muddied legal issue impacting everyone from rural elected officials around the country to the president: in the age of social media, what constitutes a public forum?
Robinson’s lawsuit against her local sheriff's office was a culmination of yearsof contentious run-ins with the office.
Three-and-a-half years ago,a Hunt County deputy and local police officer arrived at herparents’ home with representatives from Child Protective Services and an order to take custody of Robinson’s 18-month-old son. When she asked to see the order, the officers refused. That’s when things escalated. In a home surveillance video widely circulated online at the time, Robinson – eight months pregnant – can be seen cowering in the corner of her kitchen as a Hunt County deputy and a Quinlan police officer force her to the floor and handcuff her. She was charged with assaulting an officer.
Over a year later, charges against Robinson related to both interfering with a child custody order and assaulting an officer were dropped. CPS hadn’t served Robinson the order that she was accused of violating before arriving with the writ of attachment that they wouldn’t let her read. A grand jury decided that there wasn’t enough evidence to put the officers Robinson accused of assaulting her on trial.
In the backdrop of that strained history, the Hunt County Sheriff's Office blocked Robinson from commenting on the Hunt County Sheriff’s Office Facebook page last year after she criticized the office there.She filed her lawsuit in February 2017. After losing the case at a North Texas trial court, Robinson appealed to the 5th Circuit. Oral arguments will be heard Thursday morning in New Orleans. Asone of the first cases of its kind to make it to an appeals court, the outcome could helpset a new legal precedent for government use of social media.
For some First Amendment lawyers, Robinson’s history with the sheriff’s office is part of what makes this case fascinating. “It’s quite clear she was singled out,” said Frank Lomonte, director of the Brechner Center for Freedom of Information at the University of Florida. “If the First Amendment protects anything, it’s the quality of government services you’re receiving.”
Robinson asserts that she was blocked from commenting on or liking posts on the page after posting comments that the office disagreed with. The office created a public forum by opening up the page to citizen input, she argues, and blocking her based on viewpoint is a violation of her First Amendment rights.
The Sheriff’s office counters that the page isn’t a public forum. It says that by deleting Robinson’s posts and blocking her, they were merely enforcing Facebook’s conduct rules.
That would imply that Facebook is compelling the sheriff’s office to violate Robinson’s First Amendment rights, said Lomonte. “It betrays a lack of complete and thorough understanding of how social media works.”
He added that it also ignores how much local law enforcement agencies now rely on Facebook for basic communication with the public.
“Police agencies will refer you to their Facebook page in the way they used to refer you to press releases 20 or 30 years ago,” Lomonte said. “If you’re not permitted to see that page, you’re losing out on information.”
Robinson’s attorney, JT Morris, argued that comment threads on Facebook posts hosted by government entities are de facto public forums.
“Just like a town hall meeting in the physical world,” he said.
It’ll be up to the 5th Circuit to decide whose argument holds water. The court could decide to bump Robinson’s case back down to the trial court in Dallas, which is what she’s asking them to do. That would mean that the lower court would get a do-over, and a mandate from the 5th Circuit to look more closely at some aspect of the case.
Or, the court could agree with the trial court and dismiss the case. At that point, Robinson might appeal to the U.S. Supreme Court, but there’s no guarantee that the highest court would take it on. But if there are disagreements between the 5th Circuit and 2nd Circuit court decisions, for example – or any at that level – it boosts the likelihood that the Supreme Court will be interested in ruling on the issue, according to First Amendment lawyers.
“The Supreme Court has never addressed the issue of whether government’s use of an interactive social media creates a public forum or not,” said Lyrissa Lidsky, law professor and dean of the University of Missouri School of Law. “The issue is new enough that it hasn’t worked its way through the appellate process to get a statement from a variety of appellate courts or the Supreme Court.”
Various politicians in Texas and around the country have sparked criticism for blocking people on social media. Back in 2011, then-Texas Gov. Rick Perry drew attention for blocking some journalists from his Twitter account. At the time, his spokesperson defended the practice as legal because it was Perry's personal account.
That’s a similar argument to the one President Donald Trump has made in response to a case brought against him last year by seven Twitter users for blocking them from his @realDonaldTrump account. In May, a federal judge in New York ruled that because Trump uses his account for official presidential business, his personal Twitter page qualifies as a public forum. By blocking people he disagreed with, the court said Trump was violating the First Amendment. The Trump administration appealed the case to the 2nd Circuit, and a date for oral arguments has yet to be set.
In a friend of the court brief in support of the plaintiffs in the Trump case, Electronic Frontier Foundation, a civil liberties group, called government use of social media “the rule now, not the exception” that could conceivably become the main form of citizen interaction with government. “As a result, members of the public must have a cognizable First Amendment right to receive such otherwise public communications from the government, and to participate in the forums that are created.”
Some courts have sided with government officialsin such cases. In Kentucky, Drew Morgan and Mary Hargis sued Governor Matt Bevin for blocking their critical comments on his Facebook page, saying the governor was curbing free speech. The court denied the plaintiffs’ claims, arguing that neither Facebook nor Twitter qualifies as a traditional public forum “necessitating the highest level of scrutiny.”
But cases outside of Texas’ federal court jurisdiction – like the Kentucky case or the Trump Twitter case – won’t be binding in Texas courts unless they make it to the Supreme Court.
A win for Robinson could spark more legal action in Texas. After the ruling in Trump’s Twitter case, state Rep. Briscoe Cain, R-Deer Park, tweeted: “In honor of some liberal NY judge telling @realDonaldTrump he can’t block people on twitter, I will be BLOCKING a lot liberal trolls today.”
Fascinating to see how this is going to move through the courts. If the pages are considered public forums, it seems like it would limit social media sites from implementing their own code of conducts as well. Wonder if the ad supported networks would then ban government entities or drop their rules.
Over at the Collabora blog, Erik Faye-Lund writes about Zink, which is an effort to create an OpenGL driver on top of Vulkan that he has been working on with Dave Airlie. "One problem is that OpenGL is a big API with a lot of legacy stuff that has accumulated since its initial release in 1992. OpenGL is well-established as a requirement for applications and desktop compositors.
But since the very successful release of Vulkan, we now have two main-stream APIs for essentially the same hardware functionality.
It's not looking like neither OpenGL nor Vulkan is going away, and the software-world is now hard at work implementing Vulkan support everywhere, which is great. But this leads to complexity. So my hope is that we can simplify things here, by only require things like desktop compositors to support one API down the road. We're not there yet, though; not all hardware has a Vulkan-driver, and some older hardware can't even support it. But at some point in the not too far future, we'll probably get there.
This means there might be a future where OpenGL's role could purely be one of legacy application compatibility. Perhaps Zink can help making that future a bit closer?"
This is neat, glad that Collabra is sponsoring it. The real gain I see is that graphics chip vendors can release one simpler driver, hopefully increasing support for the Linux graphic stack. Hope they realize this and chip in some expertise.