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Social Media: No “Friend” of Personal Privacy by Christopher Spinelli — 65

Facebook and MySpace. For instance, in United States v. Drew35 a 47-year-old mother, Lori Drew, was partly responsible for the suicide of 13-year-old Megan Meier. Drew created a fake MySpace account and contacted Meier posing as a 16-year-old boy. Using the account, Drew harassed Meier and inflicted significant emo- tional distress. A month after the fake account was created, Meier hung herself in her bedroom closet. Drew was later indicted and accused of violating the Computer Fraud and Abuse Act on several counts. One of the charges brought against Drew accused her of violating MySpace’s terms of service as a result of her access- ing MySpace servers in order to gather more information on Meier. The creation of a false account violated MySpace’s terms and conditions as well. The indictment was legally questionable because the Computer Fraud and Abuse Act, as currently written, only encompasses federal, state, and designated financial com- puter systems. As a result, on August 28, 2009, Drew was acquitted of these charges.

This case has incited a significant call to change state and federal policy. Most notable is a bill intro-

duced to Congress on August 2, 2009, titled the Megan Meier Cyberbullying Prevention Act. If it were to be passed, the bill would establish a federal definition of cyberbullying and criminalize online communication that is done “with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person.”36

Further highlighting the ineffectiveness of social networking website self-regulation, in February 2007 a case titled Doe v. MySpace attempted to reframe the responsibility of social networking websites in the context of protection from sexual predators. The plaintiff accused MySpace of negligence that stemmed from the belief that MySpace should have “implemented basic safety measures to prevent sexual predators from communicating with minors.”37 The District Court again denied these claims on the basis of the Communica- tions Decency Act. The Appeal’s Court affirmed this decision, relying on precedent established in Green v. AOL and finding that MySpace was not liable for user-generated content on its website.38 The Supreme Court denied certiorari to hear the case in November 2008.

All three of these cases provide a clear example of how Facebook’s and MySpace’s practice of self- regulation have been ineffective and unreliable. The question then becomes whether the government should abandon this policy of self-regulation and begin to hold Facebook and MySpace liable due to their claimed ownership of defamatory content, and the necessity to protect children. Without enforcing it personally, or specifically mandating guidelines for Facebook and MySpace, the government essentially permits the exis- tence of a medium that has the potential to become a safe-haven for sexual predators and the circulation of defamatory comments.

VII. Facebook’s & MySpace’s connection to discriminating employment practices

The limited amount of regulation on websites such as MySpace and Facebook has also led to a disturbing trend in the workplace. Both have displayed an inability to keep information that is thought to be p r i v a t e , o u t o f t h e h a n d s o f c u r r e n t o r p o t e n t i a l e m p l o y e r s . T h e d a m a g i n g e f f e c t s t h i s c a n h a v e o n o n e s career was made clearly evident in Barrow County School District v. Payne.39 There, Ashley Payne was a

Barrow County schoolteacher who, in August 2009, was forced to resign from her job. Ms. Payne alleges that she was asked to resign after photos from a recent vacation in Europe surfaced on Facebook. These photos reportedly show Ms. Payne holding wine and beer. Below the photo is a posting that states she was “headed out to play Crazy Bitch Bingo.” The school contends that it was forced to ask for Ms. Payne’s resignation after a parent called the school complaining about the content. However, Ms. Payne asserts that she was not “Facebook friends” with any of her students and had enabled all proper privacy settings on her profile. Con- tending such, Ms. Payne has filed a lawsuit against the school district. As of this writing, the trial is forthcom- ing.

35 United States v. Lori Drew, No. CR 08-0582-GW, http://www.scribd.com/doc/23406419. 36 Congress, 1st Session, H.R. 1966, (April 2, 2009), http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.1966. 37 Doe v. MySpace, 528 F. 3d 413 (5th Cir. 2008). 38 Green v. America Online (AOL), 318 F. 3d 465 – 2003.

39 “Barrow County School District v. Payne.” Citizen Media Law Project. Berkman Center for Internet & Soci- ety, 4 Mar. 2010. Web.

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