Tim Cushing
TechDirt
Oct. 8, 2013

We saw Nova Scotia deliver the worst in cyberbullying laws (Canadian edition) earlier this year. Like most bad cyberbullying legislation, this one was prompted by the suicide of a teen. It’s too tempting for legislators to rush into action with no real idea on how to solve the problem, much less mitigate it, and the attendant public uproar contributes nothing in terms of clear thinking or common sense.

As a result, laws like Nova Scotia’s get passed — laws that rely on purely subjective measures. If someone feels offended, they can press charges, utilizing a non-adversarial process that allows the accuser to present his or her case directly to a judge, who then decides whether or not it’s actually cyberbullying. This opens the accused up to civil proceedings, criminal charges and a chance of being banned not just from social media but from the internet entirely, along with being banned from using electronic devices — like a phone.

Maryland’s anti-cyberbullying law (“Grace’s Law”) is also the byproduct of the charged reaction to a teen’s (Grace McComas) post-bullying suicide. Grace’s Law attempts to outlaw being a jerk while still pretending it doesn’t tread all over the public’s First Amendment rights. It grants exceptions for “expressing political views” and “conveying information” but that’s it. And if it’s a teen on the receiving end of “electronic annoyance” (whether or not the “annoyer” knows the target is a teen), expect the hammer to fall swiftly and crushingly.

Grace’s Law is now in effect and the state of Maryland has gone even farther, partnering with Facebook to help it censor the output of Maryland c..., as Walter Olson details at Cato.

On Tuesday, the new law took effect, and this morning Maryland attorney general Douglas Gansler unveiled a joint initiative with Facebook and the National Association of Attorneys General (NAAG) in which Facebook will create a new program for school officials, the Educator Escalation Channel — initially limited to use in the state of Maryland, presumably pending similar enactments elsewhere — allowing the officials to object to Facebook users’ content. Per local radio station WTOP, Maryland school officials will be offered the chance to flag “questionable or prohibited” language. That is to say, they will flag speech that isn’t prohibited by the new law but which they deem “questionable.”

The targets of the new program, according to Gansler as quoted by WTOP, include persons who are “not committing a crime… We’re not going to go after you, but we are going to take down the language off of Facebook, because there’s no redeeming societal value and it’s clearly hurting somebody.” That is to say, Gansler believes he has negotiated power for school officials to go after speech that is not unlawful even under the decidedly speech-unfriendly definitions of the new Maryland law, but which they consider hurtful and lacking in “redeeming societal value.”

Once again, the subjective standard is being applied. What’s offensive to Maryland officials is deemed to be offensive to everyone. Maryland will now start censoring users’ posts and comments, all with Facebook’s approval. Here’s Scott Greenfield with Facebook’s public statement on its partnership in free speech ....

“Facebook continues to look for ways to help parents, teens and educators better understand the safety features built into our service,” Facebook’s Brooke Oberwetter said in a statement, thanking Gansler “for his national leadership on the issue of online safety and for working with us to create this pilot program in Maryland.”

Oberwetter’s statement appears to have been pre-written by an official at the Ministry of Love. It contains the sort of Big Brother-embracing faux cheeriness Oberwtter, who once sued the DC Park Police after being arrested for dancing at the Jefferson Memorial (and lost but still returned to dance again), wouldn’t make on her own. Nope, this is a corporate canned speech, one that gives a glassy-eyed nod as it awaits orders from its new “partner.” As Greenfield points out, this is a dangerous precedent Facebook is setting.

While Facebook may be a private enterprise, fully entitled to decide what content is acceptable on its platform and similarly entitled to decide that its users will no longer be allowed to write “Suzy is a poo poo head” on the wall, it’s not that simple when the censor is a state actor and the content at issue is deemed offensive not because it violates any law, but because someone is empowered to stifle speech that doesn’t comport with their vision of redeeming societal value, whatever that means. By doing the bidding of teachers, Facebook becomes the agent of the state.

Even the new statement issued by Facebook, where it claims it won’t be changing its content policy “one iota” rings a little hollow. The response, given to the WSJ’s Law Blog, claims Facebook will show no greater preference to reports via Maryland’s direct line than those arriving via the “report” buttons deployed by everyday, non-Escalating non-Educators.

But the foot’s in the door.

But this is Maryland? Who cares? And Facebook is so MySpace, right? Except it’s a pilot program, and it comes with the support of the National Association of Attorneys Generals, who would like nothing better than to make sure that no speech that doesn’t meet its approval is ever seen. This is how it starts, in one god-forsaken state on one declining platform.

Maryland is the only state in the nation currently working with (or adjacent to) Facebook to make preemptive strikes against posts “without societal value.” It’s very unlikely it will be the last. There are plenty of opportunistic politicians, administrators and attorneys general more than happy to point out how SERIOUS they are about tackling the cyberbullying menace.

Maryland’s anti-bullying law sets its own dangerous precedents, as does Facebook’s willingness to (at least publicly) ingratiate itself to censorious state bodies. It won’t just be one state or one social network before it’s all said and done. With the NSA peeking in the back door and Maryland’s NAAG squad peering through the windows, the world’s largest social network has placed one foot on a slope that descends rapidly to Facebook.gov.

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