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.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: first amendment, public info, publicly available info, social media, william alsup
Companies: famous, hey, twitter
Reader Comments
The First Word
“Subscribe: RSS
View by: Time | Thread
I'm honestly surprised Alsup took the stance he did.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
I guess those authors were thrown in jail or something because the big yellow book stopped coming.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Do people on twitter just have money lying around to waste on this?
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
"I don’t see how you can even make that argument with a straight face"
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
Re:
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%!
[ link to this | view in chronology ]
Re: Judges
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
That's why I'm shocked at his response here.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
ok if no one else is going to say it.....
[ link to this | view in chronology ]
Re: ok if no one else is going to say it.....
[ link to this | view in chronology ]
Maybe it's this guy:
NFL wannabe, never made it, spent a few years in the UFL
(which collapsed five years ago) so his money's running out.
[ link to this | view in chronology ]
Re: Maybe it's this guy:
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.
[ link to this | view in chronology ]
Re: Maybe it's this guy:
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.
[ link to this | view in chronology ]
Right of Publicity
[ link to this | view in chronology ]
Re: Right of Publicity
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.
[ link to this | view in chronology ]
Re: Re: Right of Publicity
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?
[ link to this | view in chronology ]