It's day three of Mr. Parag Agrawal's term as CEO of Twitter, following Jack Dorsey's surprise resignation on Monday, and we're already seeing that the leadership change could mean facilitating the arbitrary removal of user speech. Today, Twitter has now banned "media of private individuals without the permission of the person(s) depicted" in its private information policy, but will make exceptions to the ban when Twitter determines exceptions are in the "public interest."
The sweeping "public interest" discretion Twitter reserves for itself in its new policy could aggravate Twitter's selective enforcement in content moderation. Under the policy, users appearing in photographs or videos to which they did not consent to can report these photographs or videos to Twitter for removal. The policy does not apply to public figures, and critically, it also doesn't apply to "individuals when media and accompanying Tweet text are shared in the public interest or add value to public discourse." Twitter only gives two hints at what might constitute the "public interest" or added "value in public discourse"—media involving crisis situations (like violence) or media "being covered by mainstream/traditional media (newspapers, TV channels, online news sites)." The policy appears to apply even to videos and images of individuals in public spaces.
(Logo of Twitter, Inc.)
Much could go wrong here. The policy change is effectively a "two-party consent" rule for media shared on Twitter, and it could be abused to erase useful information. Empowering Twitter employees to determine the "public interest" and "value" added to public discourse by videos and images heightens the risk of injecting political bias, wrong-headed notions of "misinformation," and other value-laden influences creeping into enforcement decisions.
To reduce these influences that limit speech online, Twitter should take a minimalist approach to enforcing this policy that sticks to newsworthiness. If media content reviewed under this policy displays any information that could be relevant to the public discourse, Twitter should err on the side of not removing the media. Content that lacks any such information could be considered harassment and removed for the harm-reduction purposes that Twitter espouses. This approach would be similar to the "newsworthiness" test used by some courts for privacy torts. In other words, Twitter would ask whether the media content contains any information relevant to an issue in the public discourse, not whether the distribution of that media would benefit some indeterminate "public interest," which, to be sure, is in the eye of the beholder.
Twitter may be within its First
Amendment rights in adopting the new policy. But if Twitter begins deciding,
for example, that media that discredits a person, narrative, or movement
favored by Twitter doesn't comply with its selective notions of what constitutes
the "public interest," @Jack's departure would mark more arbitrary
suppression of online speech.
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