Q & A with Peter Jenkins

Adjunct professor Peter Jenkins teaches a course at Osgoode Hall Law School called Legal values: Law, ethics & social media. Offered for the second time in the winter 2014 term, it’s a small first-year course open to 20 students, with five spots reserved for upper-year students. Jenkins spoke with 4Students assistant editor Heather Gardiner about the course.

What is the course about?
It defines social media in a broadly construed sense. It’s not just the traditional things that come to mind when you think of social media, such as social networks [like] Facebook and micro blogs such as Twitter, but also other forms of social media broadly defined, such as collaborative projects [like] Wikipedia, content communities [like] YouTube, and even things like WikiLeaks. Then [there are] two types of virtual worlds: online social virtual worlds such as Second Life and online gaming virtual worlds such as World of Warcraft. So there’s all different types of categories subsumed within the rubric of social media as a whole, not just social networks.

How is social media connected to the law?
Some of the major areas of the law that relate to social media are issues of defamation obviously, in the sense of some people who are victims of cyber stalking and trolling, and there you get into criminal law as well. There are issues of contract law in the sense of the terms of service that you click on when you enter a site. There are issues involving constitutional law, particularly privacy issues and freedom of speech issues. So it intersects with the law in many, many different ways. At the same time it’s a bit of a feedback loop because not only do these legal issues affect social media, but social media affects the development of the law. It’s fundamentally changing what our conception is of things like reasonable expectations of privacy and other basic legal concepts.

The course has three main objectives. How will each be achieved?
1. The first objective is really to engage the students in a critical, legal analysis of some of the issues involving social media — things like privacy, anonymity, narcissism and legal culture, human rights, and whistleblowing. To that end we engage them in a critical analysis of a broad, diverse range of materials. It includes things like case studies involving individuals who have had some tragic encounters with social media; it involves listening to recordings of debates between lawyers and members of the legal community involving interesting issues such as anonymity versus a real-name policy; it involves looking at articles in law journals, scholarly books, and engaging in a discussion of all of those materials.

2. Another objective is to look at some of the benefits of social media in the sense of things like social activism. We looked at some readings by people like Malcolm Gladwell who talked about the strong tie versus the weak tie, and that social activism using social media involves weak ties sometimes with people you haven’t met or barely know, as opposed to the strong ties which occurred in social activism in the 1960s when people went with their college roommates and people who they knew and they put themselves in harm’s way in demonstrations against segregation in the deep south, for example.

In the Middle East where you have the Arab Spring, social media was used very effectively to mobilize people and a lot of people did end up putting themselves in harm’s way as a result of mobilization through social media. So there are different schools of thought on whether social media is effective for social activism or not, or whether it just makes people feel better that they’ve given some token effort into being a social activist without putting themselves in harm’s way.

We looked at some cases involving people who participated in the Occupy movement in the United States last year, particularly the ability of the government to obtain copies of people’s Twitter feeds and the metadata behind the Twitter feeds, which actually enables the police to pinpoint people’s locations at the time of their tweet.

3. The third objective of the course is to look at proposals for reform as well as potential self-help measures that students can engage in to prevent themselves from becoming victims of some unintended misuse of social media. Information in the sense of embarrassing photographs which are put on in a moment of haste tend to stay on the Internet . . . once it’s out there, it’s out there. So through some cautionary tales of people who’ve posted material as youths or young adults that they would later regret, trying to foster a culture amongst the students that they should really be careful what they post. And then looking at some proposals for reform that have been put forward by various legal scholars. So there are some interesting technological solutions and various other proposals for reform that we examined.
Why is it important to teach students about the law and ethics of social media?
[Students] should be concerned about the increasing prevalence of the role of social media in society. No matter whether they end up as advocates, decision-makers, or policy-makers, they really need to be aware of the issues involving social media because it’s becoming so diffuse and such an integral part of business, our social relations, our economic relations, and our personal relations. We discussed in the class how there is a problem amongst the judiciary, particularly that they’re not up to speed on all the various ins and outs of social media. Of course, as young people, students are more up to speed on that but to supplement the knowledge that they already have, they really need to become familiarized with some of the legal issues surrounding it as they move forward into these roles in society so that they can deal with them effectively.
What kinds of legal issues have arisen recently as a result of social media?
There have been a lot of tragic issues over the past six months or so involving the deaths of various young people who were engaged in social media issues [that] led to their demise, often through suicide. There’s the cyber stalking case of a young woman in high school in Nova Scotia, who had pictures of her posted online and was bullied so severely she took her own life. Issues involving misidentification of people — there was a student at Boston University who was wrongly identified as one of the bombers in the Boston Marathon bombing. He was found dead floating in the river there. They haven’t figured out what happened to him, presumably it was a suicide. So social media issues can result in very tragic circumstances and people need to be aware not only to protect themselves, but to try and do something to prevent these things from happening to other people in the future.

There are also issues surrounding government surveillance programs. We have the problem that’s been revealed through the leaks by Edward Snowden, who was an employee of a contractor working for the National Security Agency in the United States, that social media companies are being leaned on by the government to divulge the content of all these posts, which we presumably thought were none of the government’s business.

What kinds of issues do you predict will arise in the future?
One of the things I think that we should really be looking at as potentially a game-changing technology is this whole issue of wearable computers. Google is coming out with something called Google Glass at the end of 2013 or early 2014. Basically it’s a wearable computer, which looks just like an ordinary pair of eyeglasses except for the fact it has a little area attached to one of the lenses where it has a small screen that you can look at and actually surf the Internet while you’re talking to somebody. There are some dangers with that in that you could have facial recognition software; you could pass people on the street and instantly find out their background . . . which is very much an invasion of privacy. The other thing is that if we are wearing something called Google Glass — potentially every waking hour of the day — we’re beginning to live inside these virtual worlds created by these corporations. So wherever we go when we’re awake, we have ads coming at us through these glasses or various feeds coming in and we’re permanently in that world created by Google or some other social media company. . . . Normally constitutional obligations are not the responsibility of a corporation; they’re the responsibility of a government. But when governments and corporations begin to look the same in the sense that we’re living in a world created by this corporation, it seems that corporations should begin to have some constitutional obligations, such as providing freedom of speech rights to people living in these worlds that they’ve created.

How do you incorporate social media into the course?
I set up a Facebook discussion group for the students, which has the highest available privacy settings on Facebook. [It] is secret and closed, which means that students can comment within the group and make posts without worrying that somebody can search their name on the Internet and find something that they said in this Facebook discussion group. . . . Students can post between classes and during classes. I find that some students are more reticent than others to participate in a verbal discussion in class; some are more comfortable with posting in the Facebook group rather than raising their hands in class because some people are just not comfortable speaking in front of other people, particularly first-year students who may not have developed that skill yet. . . . It also enables the students to continue the discussion between classes, but also to comment on something which was said in the class.

Is there a practical component of the course?
[I’m] developing a proposal for a practicum that would involve Google Glass. If I can actually get a couple of pairs of Google Glass by January of next year what I’m proposing is to have some students wear a Google Glass at the law school and out in the community and document the reactions and the issues, whether of a personal or legal nature, and have that as a bit of a practical subcomponent of the course or actually maybe as a separate course on its own. A lot of businesses and institutions are going to have to develop policies on the wearing of these devices. I think that would be quite a valuable exercise to do and the students would love it.

How will students be evaluated?
The major portion of the evaluation is a scholarly paper, which is 75 per cent of the grade, then there is 15 per cent devoted to a class presentation that they give, and 10 per cent is based on overall participation, which includes both class participation verbally and participation in the Facebook group.

Are there any prerequisites for the course?
No prerequisites. The only requirement is that people must have a Facebook account. [If you are] concerned about privacy issues . . . just make sure you don’t post much at all on it, it can be a very skeletal account for purposes of participating in the group.

What do you hope students will take away from the course?
One is that the Internet never forgets. It never hurts to re-emphasize this. Be really careful what you post on Facebook, it’s just going to follow you around potentially for the rest of your life. . . . Just assume that there is no privacy.

The second is a broader issue extending beyond that, which is that with things like Google Glass, we’re all going to be starting to live inside these virtual worlds created by these social media companies and it’s going to fundamentally alter the balance of power between governments and corporations and the balance of responsibility between them. Eventually people will be looking to corporations for their constitutional rights at some point in time. This will fundamentally restructure the way we think about constitutional law generally in society.

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