What’s the Legal Definition of a “Social Media Site”? Uh… (People v. Lopez)

Photo credit: Social media concept in thumb up symbol // ShutterStock

Photo credit: Social media concept in thumb up symbol // ShutterStock

I’ve previously discussed “social media exceptionalism,” i.e., the development of legal rules applicable only to social media predicated on the assumption that it’s somehow unique, special or different from other media, online or off. I’ve never found a principled justification for social media exceptionalism, at least as compared to other types of Internet media. Nevertheless, regulatory mania has generated a fair amount of social media-specific laws in the past decade.

One of the trickiest angles is defining “social media” sufficiently precisely to distinguish it from other media. Because there’s no clear dividing line between “social media” and “the rest of the Internet,” attempts to develop social media-specific rules have run into significant definitional problems. California highlighted this problem in its social media privacy laws. The California legislature apparently intended to regulate social media login credentials but instead its definition covered all electronic data, online and off. Oops? (More on those laws in a moment).

Today’s case involves the gang-related probation conditions for a convicted criminal. The trial court required that the probationer:

provide [his probation officer with] all passwords to any social media sites, including but not limited to Facebook, Instagram, MocoSpace, MySpace, or anything similar. And shall submit said sites to search at any time with or without a warrant by a peace officer

Probation conditions similar to this are imposed regularly, especially for sex offenders where statutes may mandate the turnover of login credentials. But what exactly qualifies as a “social media site” for purposes of these conditions? The probationer claimed it was unconstitutionally vague. The court discusses:

Defendant argues that the term “social media site” is vague, because it has “neither a clear legal definition or any obvious contours in common sense.” Defendant maintains that, for example, certain Web sites like Facebook are commonly accepted as a social media site. However, he claims that due to the inherent ambiguity in the term “social media site,” it is unclear whether other, less typical Web sites would be considered a “social media site.” In support of this argument, defendant brings up the example of a newspaper Web site where individuals are able to create accounts and comment on news stories. These Web sites involve a degree of social interaction with other users, and is a way for users to share and promote content with each other. Defendant insists that it is unclear whether these Web sites would be considered social media sites under the imposed condition.

The People disagree, arguing that the term “social media site” is not vague. First, the People maintain that defendant can always ask his probation officer for clarification. We reject this argument. Accepting this contention would mean that in all situations where a probation condition suffers from ambiguity, the problem could be remedied by asking a probation officer for clarification. However, the central element of a void for vagueness claim is that the probation condition is not sufficiently precise for the probationers to know what is expected of them. If probationers must resort to asking probation officers for clarification regarding the terms of probation, it follows that the condition does not pass constitutional muster.

It’s nice to see the court reject the argument that the probationer must ask for clarification from the probation officer. That puts way too much discretionary power in the wrong hands, and merely needing to ask imposes its own form of chilling effect. The court continues:

We find more merit to the People’s argument that any vagueness is ameliorated by the condition’s illustrative examples of social media sites, such as Facebook, Instagram, MocoSpace, and MySpace. Additionally, the People point out that the condition’s purpose—to prohibit defendant from engaging in unlawful online conduct or associating with gang members through social media sites—lends the needed clarity.

In certain cases, appellate courts have concluded that illustrative examples and the trial court’s reason for imposing the probation condition can cure a probation condition’s vagueness problem. This is based on the general concept that “‘abstract legal commands must be applied in a specific context. A contextual application of otherwise unqualified legal language may supply the clue to a law’s meaning, giving facially standardless language a constitutionally sufficient concreteness.’“ (People v. Lopez (1998) 66 Cal.App.4th 615, 630 (Lopez ).)

For example, in In re Malik J. (2015) 240 Cal.App.4th 896 the appellate court considered whether a probation condition requiring the minor to “‘provide all passwords to any electronic devices, including cell phones, computers or [notepads], within [the probationer’s] custody or control’“ was unconstitutionally vague or overbroad. (Id. at p. 900.) The minor appealed, arguing that the phrase “‘any electronic devices’“ could be interpreted to include Kindles, Playstations, iPods, the codes to his car, home security system, or even his ATM card. (Id. at p. 904.) However, the appellate court concluded that the imposed search condition was in response to the trial court’s concern that the minor would use items such as his cell phone to coordinate with other offenders. Additionally, the minor had previously robbed people of their iPhones. (Id. at pp. 904–905.)

Therefore, the appellate court concluded that it was reasonably clear that the condition was meant to encompass “‘similar electronic devices within [minor’s] custody and control that might be stolen property, and not, as [minor] conjectures, to authorize a search of his Kindle to see what books he is reading or require him to turn over his ATM password.’“ (Id. at p. 905.)

Like the court in Malik J., the court here provided context by listing certain examples of social media sites covered by the probation condition, including Facebook, Instagram, Myspace, Mocospace, or anything similar. Further, the probation condition was imposed as part of a standard set of gang orders. Accordingly, the condition’s purpose—to deter criminal activities associated with gangs and to prevent future criminality by disassociating defendant from other gang members—provides guidance to the probationer and clarifies which “social media sites” the condition intends to target.

OK, perhaps so far so good. The court uses ejusdem generis to help narrow the intended meaning. If “social media sites” must be like Instagram, that provides some clarity about what’s excluded. However, the court continues:

Defendant maintains that the term “social media sites” remains ambiguous on its face. We agree with defendant’s assessment that at first blush the definition of the term “social media” appears murky, because it lacks a clear definition in California law. Our Legislature has attempted to define the term “social media” in other codes, but the crafted definitions have been sweeping. For example, in a footnote in their reply brief, the People point out that the term “social media” has been defined in the Education Code as “an electronic service or account, or electronic content, including, but not limited to, videos or still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.” (Educ.Code, § 99120.) A similar definition is also found in Labor Code section 980, subdivision (a).

Murky? Yes. Sweeping? Yes. (In legal parlance, “sweeping” is often a synonym for “overbroad”). The court continues:

The People do not attempt to argue that these definitions apply to defendant’s probation condition. Nor do we believe application of this definition is appropriate, since the broad definitions found in the Education Code and Labor Code, which include “online services or accounts” or “Internet Web site profiles or locations,” would encompass almost anything that can be found on the Internet, including online bank accounts and e-mail accounts. This definition likely encompasses a larger swath of defendant’s online presence that the probation condition did not intend to reach. [Eric’s emphasis added]

However, a practical, acceptable, and common-sense definition of the term does exist. And that is what the condition needs in order to pass constitutional muster. According to the Oxford English Dictionary, “social media” constitutes “websites and applications which enable users to create and share content or to participate in social networking.” (Oxford English Dict. Online (2016) < http://www.oed.com> [as of Jan. 25, 2016].) In turn, “social networking” is defined as “the use or establishment of social networks or connections; (now esp.) the use of websites which enable users to interact with one another, find and contact people with common interest, etc.” (Oxford English Dict. Online (2016) < http://www.oed.com> [as of Jan. 25, 2016].) And, “social network” is defined as “a system of social interactions and relationships; a group of people who are socially connected to one another; (now also) a social networking website; the users of such a website collectively.” (Oxford English Dict. Online (2016) < http://www.oed.com> [as of Jan. 25, 2016].)

We are guided by the general principles that the language used in a probation condition must only have “‘“reasonable specificity,” ‘“not“ ‘mathematical certainty.’“ (Sheena K., supra, 40 Cal.4th at p. 890.) And, a probation condition is sufficiently specific “‘“if any reasonable and practical consideration can be given its language or if its terms may be made reasonably certain by reference to other definable sources.”‘“ (Lopez, supra, 66 Cal.App.4th at p. 630.)

Here, the term “social media,” although not mathematically precise, has a reasonably certain definition: Web sites where users are able to share and generate content, and find and connect with other users of common interests. And, the term was made sufficiently specific by the trial court when it clarified that the probation condition covered social media sites including Facebook, Instagram, Myspace, Mocospace, or anything similar.

Accordingly, for the aforementioned reasons, we do not find that the term “social media sites” to be unconstitutionally vague and reject defendant’s conjecture that the condition could be interpreted to include news Web sites.

Lastly, defendant posits that the condition is also vague because it covers social media “sites.” Defendant claims that it is unclear whether, based on this language, social media applications (i.e., applications that only have an interface accessible on a cell phone or tablet device) that do not have a Web site component would be covered by the probation condition. We disagree that the condition is vague in this regard. Although the term references “sites,” we believe it is reasonably clear that the probation condition intends to include all social media that has an online component. Read this way, there is no vagueness in the condition’s use of the term “sites.”

b. Overbreadth

Next, we address defendant’s argument that the challenged condition is constitutionally overbroad. A separate panel from this court rejected the same argument in People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski).

In Ebertwoski, the defendant was a member of a criminal street gang who promoted his gang on social media. This court concluded that “[d]efendant’s constitutional privacy rights are not improperly abridged by the password conditions any more than they are by the search condition.” (Ebertowski, supra, 228 Cal.App.4th at p. 1176.) “Even where there is ‘(1) a legally protected privacy interest; (2) a reasonable expectation of privacy under the circumstances; and (3) conduct constituting a serious invasion of the privacy interest,’ the constitutional right to privacy is not violated if ‘the invasion of the privacy interest is justified because it substantially furthers one or more legitimate competing or countervailing privacy or non-privacy interests.’ “ (Ibid.) Accordingly, Ebertowski held that the state’s interest in preventing the defendant from continuing to associate with gangs and participate in gang activities outweighed the minimal invasion of his privacy. (Ibid.)

We follow the reasoning set forth in Ebertowski and conclude that the challenged condition is not constitutionally overbroad.

OK. In order to find the meaning of the term “social media sites” is “reasonably certain,” the court had to (a) ignore a statutory definition of the exact same term adopted by the legislature (albeit for a different context, although the password privacy concern is identical) and (b) collapse the definition of three different words from the Oxford English Dictionary Online. That’s great.

So here it is, the court’s definition of “social media sites”: “Web sites where users are able to share and generate content, and find and connect with other users of common interests,” as qualified by ejusdem generis where the exemplar sites are Facebook, Instagram, Myspace and Mocospace. Let’s test our understanding of the definition through some use cases:

* online banking passwords: definitely excluded from the probation condition, especially because the court says so.
* e-commerce sites: normally excluded if the site is purely transactional, but Amazon seems clearly included due to its review functionality…? Following that logic, every online retailer with a review functionality for its users should be included.
* newspaper message boards: the court’s definition implies users must be able to “connect” to each other, which older message board functions don’t normally allow. But if the term “connect” is metaphorical and not technological, then every UGC function is designed to enable like-minded folks to gather and discuss. So I don’t really know what the court meant to say about newspaper message boards.
* online dating apps like Tinder or Grindr: definitely included even though they are mobile apps.
* online video games like MMORPGs: included in the definition (I think?).
* photo and video sharing sites like YouTube and Flickr: these seem to be included in the definition of “social media sites,” but notice that Google and Yahoo’s single sign-ons mean the login credential from these sites should also enable logins to Gmail or Yahoo Mail, despite the court saying the restriction wasn’t meant to reach email. Hmm.

This would be just an academic game of semantics if the consequences weren’t so significant. Remember the stakes: failure to disclose the required login credentials to the probation officer or (on demand) a peace officer means revoked probation–i.e., jailtime–for the probationer. In this situation, if you’re the probationer, aren’t you going to turn over every login credential you have, even your online bank or your online retailer, to make sure you stay out of jail (even though the court said online banking passwords were out of scope)? Perhaps probationer overdisclosure is the real intent of the criminal justice system administrators, but otherwise that sounds exactly like the kind of vague and overbroad restriction that we don’t tolerate in our society, even for convicted criminals.

Case citation: People v. Lopez, 2016 WL 297942 (Cal. App. Ct. Jan. 25, 2016)

Related Posts:

* The Spectacular Failure of Employee Social Media Privacy Laws
* Recap of Washington State’s Employer Social Media Password Bill
* Washington State’s Proposed Employer Social Media Law: The Legislature Should Take a Cautious Approach — SB 5211
* State Laws Restricting Social Media Use by Sex Offenders Are Failing in Court
* Big Problems in California’s New Law Restricting Employers’ Access to Employees’ Online Accounts
* Banning Sex Offenders from Social Networking Sites is Unconstitutional–Doe v. Jindal
* Probation Limitations on Internet and Facebook Use Violate First Amendment — In re J.J.
* New Jersey Authorizes Ban of Sex Offenders’ Internet Access