Introduction

Digital content moderation is a facet of society in the United States that is consistently under scrutiny. Artists have the unique ability to challenge the processes by which digital content is policed, monitored and/or tracked through their work and the presentation of it (whether in person or digital). It is also essential for these individuals to be wary of the implications of their actions in digital spaces. When acting in a digital space, it is important to understand the extent and limitations of how artwork could be censored or monitored by either governmental or neoliberal enterprises with ideological concerns in mind.

To investigate the intersection of these components, this research revolves around the question: What should artists who use internet platforms as a public forum expect regarding their data privacy and the potential both private companies and governmental entities have in censoring or using their work? This report focuses on the legislative landscape surrounding digital privacy, various perceptions regarding the state of current digital interaction as it pertains to grander sociopolitical structures, and practical recommendations for artists and arts management professionals centered around ensuring the proper messages are heard and delivered effectively. 

Anonymity & Virtual “Town Squares”

Anonymity is a form of identity that has been central to the progression of many aspects of democracy in the context of physical protest or, in certain cases, performative artistic expression centered around dissidence to the state. Asenbaum defines anonymity as “a context-dependent identity performance expressing private sentiments in the public sphere by negating some aspects of the legally identified and/or physically embodied persona.” This definition characterizes anonymity as constructive and agentic but leaves the concept open for interpretation as there are many scenarios in which anonymity leads to negative consequences if used as a tool by bad actors. Regardless of its potential negative side, anonymity can be used positively in physical “town squares” to stem discussion around topics of ideological importance. Masked individuals have the ability to voice opinion in physical spaces and anonymously engage in public debate, but in digital spaces, one’s expectation of privacy, especially on mainstream platforms, is much lower, as this report will outline.

Forms of artistic civil disobedience are effective in changing others’ minds, especially in socially leveling spaces (McQuilten 2019). This report will show how most mainstream social media platforms are currently decent at providing these open forums but are in jeopardy because of coming legislative attacks and are, ultimately, spaces that strip the potential for true anonymity. As per the aforementioned definition, this insinuates these platforms also strip one’s ability to erode “the boundaries between the opposing binary of private versus public” and facilitate “a private form of engagement in the public discursive arena.” Obviously, social media companies are privately owned spaces, but in this analogy, because they have become so central to the ability of the masses to congregate, debate, and bring about topics of ideological importance, this report will outline what factors to be aware of when navigating through these spaces and how to provide digital alternatives that mimic socially-leveling public spaces.

Survey Analysis

To determine if there is a lack of access to awareness regarding the notion of digital privacy in certain circles, a survey was distributed by means of a convenience sample of Carnegie Mellon graduate students (n=40) in the Heinz College of Information Systems and Public Policy. Though the survey only provided a snapshot, the results paint a decent picture of the landscape surrounding the concept of digital privacy and social media interaction among future leaders in media and the arts. Ultimately, the results of this survey highlight the notion that, even with access to higher education, there is an obvious division between how students act within a digital space and what privacy protections most of these same students believe would make them feel secure in navigating or acting within digital spaces. 

Some key findings are:

• Over 50% of respondents said they would be less inclined to use a website if they knew the owner(s) sold or shared personal data.

• However, over 75% of respondents answered that they either occasionally, moderately, or frequently use Facebook (which, as an organization, spends millions lobbying against policies that many of these same individuals could utilize to their benefit).

These statistics show that what many individuals want is functionally separate from how most individuals act on the internet, most likely without realizing the impact of their own actions. For example, Figure 1, shown below, highlights that most individuals would feel safer surfing the web if the option to opt out of the retention of their personal information was presented. Further on in this report, it will become clear that there is legislation that just passed that would aid in this front, but without proper education on the subject, privacy standards may stay the same or worsen over time with more social complacency.

In the same vein, Figure 2 shows that 69.23% of respondents had never researched their state or region’s digital privacy laws and another 12.82% of respondents hadn’t done so within at least a year prior to the survey. This shows that individuals within this collegiate circle put issues of privacy as priorities but fail to realize the tools they have at their disposal.

Furthermore, Figure 3 indicates that only 7.69% of respondents would not consider switching to a social media platform that is built around the notion of kindness within a digital community. Most respondents believe that trustworthy content moderation is good. These findings will help prove the importance of developing non-commercialized, private, and secure digital spaces.

Overview of Federal and State-level Digital Privacy Legislation

Crafting identity, whether through artistic expression or various forms of activism, is a crucial part of ensuring one’s message is both effectively spread and understood by intended audiences. Though most mainstream social media platforms exist for the purpose of aggregating user data with expectation of profit, most take for granted the exchange of ideas and digital interaction provided by these websites. Currently, Section 230 of the Communications Decency Act of 1996 provides a “liability shield” to social media companies, meaning that any posting or messaging through a platform under a company’s control would not be used as evidence to hold the company accountable for its users’ actions if these actions were to be considered illegal. The current political landscape could eliminate these legal protections. While this statute may not be the sole reason people can freely post their views and content of their choosing on major internet platforms, it is a major contributing factor that, if anything, should be analyzed in the context of its effectiveness in promoting free speech rather than the way in which it supposedly impedes governmental agencies from targeting alleged criminal activity. 

Regarding content and data moderation, the Eliminating the Abusive and Rampant Neglect of Interactive Technologies Act (EARN IT Act) has passed through the Senate Judiciary Committee and could move further towards enactment with the momentum that is quietly being built. It would, in practice, strip the “liability shield” that is currently utilized by social media and tech companies by forcing them to monitor their content for child sexual abuse material (CSAM) and break end-to-end-encryption standards to allow for “backdoors” into their information security system(s). While the societal importance of combatting CSAM is not up for debate, the means by which this would occur should be because the enactment of such a law would immensely lessen user data security. The recent SolarWinds hack is a prime example of how easily backdoors can be exploited at the expense of a platform’s user base.

94.87% of those surveyed from Heinz College had never heard of the EARN-IT Act.

In reference to data and consumer privacy, the California Consumer Privacy Act (CCPA) was considered to be one of the most comprehensive digital privacy bills of its time (ca. 2018) and set into motion many other state legislatures in redefining how privacy is viewed in the digital age. Shown below is an interactive map that outlines the legislative landscape on the state-level after the passage of the CCPA. To be clear, several other states do have digital privacy laws, but this specifically highlights bills that are either currently active, passed/signed, or dead/postponed that were introduced in reaction to the movement towards cleaning up the standards around digital privacy that was catalyzed by the CCPA.

With the recent passage of the California Privacy Rights Act (CPRA) in November, many legal experts expect other states to follow suit in reaction, similarly to what occurred with the advent of the passage of the CCPA in 2018. The CPRA drew from what many considered to be the “gold standard” in data privacy legislation: the EU’s General Data Protection Regulation, or GDPR. The CPRA allows for users to “opt-out” of both the sharing and selling of personal data associated with the use of a website. It also specifies the “Right to Restrict Use of Sensitive Personal Information,” which makes the tracking of individual users less possible since consumers may limit the use of “precise geolocation data, race, religion, sexual orientation, social security numbers, and certain health information outside the context of HIPAA.”

78.13% of Heinz College students surveyed weren’t aware of the CPRA’s potential effects.

An interactive map of state-level digital privacy laws drafted and sent to committee, post-passage of the CCPA, as of February 2021, can be found here:

Examining Social Platforms’ Privacy Policies 

If an artist is hoping to remain as functionally anonymous as possible on the internet, it is best to veer away from the behemoths, such as Facebook (and any of its subsidiaries such as Instagram). To clarify, even the Federal Trade Commission is still unsure of how exactly consumer data aggregated from major social and video platforms is utilized by these companies and has recently sent an order regarding this to Facebook and Snap, among others.

There is no one, set metric by which to assess the strength of a social media company’s privacy policies and truthfulness behind their claims, but there are some factors that are worth taking into consideration when assessing if any questionable content—either artwork or content of political or ideological concern—should be posted for the purpose of spreading a message. However, researchers from the University of California, Berkeley, outlined a set of standards that are worth looking into when attempting to choose internet platforms on which to exhibit artwork or promote some form of activism, whether performative or otherwise.

Complete anonymity can only occur if the artist takes extreme precaution by using certain VPNs or by creating social media accounts that have virtually no connection to cookies or other identifiers retained from other websites. For the vast majority of individuals, the process of taking these extreme precautions is either too complex or impedes upon one’s ability to effectively spread a message. It may, however, still be important at times for certain messages to be spread without a face to the name or the cause. In these scenarios, it is essential to assess the potential impact of using certain platforms. Scrutinizing on a platform’s privacy policies is the first step. Below are two examples.

Telepath

The founders of Telepath promote their pride in the platform’s ability to effectively create spaces for discussions that build a sense of community. This community building occurs through various methods. One of the most unique (in contrast to major platforms like Facebook or Twitter) is by taking into question the notion of “free speech” and what it entails on mass social media platforms. Marc Bodnik, Executive Chairman, summed up the sentiment behind the platform’s choices in moderating users and content on Telepath in this statement:

In conjunction with this sentiment, the privacy policies of Telepath highlight the notion that the executive administration behind the platform is dedicated to ensuring as much transparency regarding the use of personal data as possible. For example, this excerpt from the privacy policy states:

• As a rule, we don’t share your personal information outside the company.

• We won’t sell your personal information.

• We may share your personal information with third parties in limited circumstances, including: (1) with your consent; (2) to a vendor or partner who meets our data protection standards; or (3) when we have a good faith belief it is required by law, such as pursuant to a subpoena or other legal process.

Arguably, the second clause of the third bullet point within the above statement is somewhat arbitrary, and this is why it is difficult to broadly state which standards of privacy should be championed and which shouldn’t. In contrast to how Facebook outlines its data privacy policy, however, it seems to be far more transparent. Facebook’s privacy policies may not fully be shrouded in legalese, but they are a consistent topic of concern for many privacy experts as there have been many accounts of inaccuracies with their claims, including a claim regarding the length of time some users’ personal data was held to be shared with third-party developers.

Dayflash

The creators of this app understand that Instagram, while it functions well in terms of reaching audiences because of the sheer volume of users, is too centered around promotions and paid engagement, and they developed this space to be devoid of any complex algorithms to drive engagement. The purpose of Dayflash is to provide a platform for “images to make their way into popularity… by producing and sharing high quality and visually engaging imagery.”

Regarding the platform’s privacy standards, there are some promising facets as good examples of simple and direct policy. For example, the policy states states:

Your privacy is critically important to us. We have a few fundamental principles:

• We don't ask you for personal information unless we truly need it.

• We don't share your personal information with anyone except to comply with the law, develop our products, or protect our rights.

• We don't store personal information on our servers unless required for the on-going operation of one of our services.

• In our blogging products, we aim to make it as simple as possible for you to control what's visible to the public, seen by search engines, kept private, and permanently deleted.

The fact that the policy outline explicitly states that Dayflash aims to “make it as simple as possible for you to control” your data means the administration behind the mobile application could not be clearer in their dedication to distance their practices from that of the mainstream social media platforms. Of course, the effects of the application of this statement ultimately comes down to trust and believability, but the forwardness of their policy shows promise. Dayflash hasn’t yet become very popularized, so there are not any accounts of a breach of trust, unlike many of the mainstream social media platforms.

There are a number of other up-and-coming social media ventures that take similar stances on privacy and the purpose of their platform for users. However, each of their user bases pale in comparison to that of major platforms. In using these websites or similar ones, artists would sacrifice their potential for higher levels of engagement but would likely have much less to worry about regarding the potential for their content to be monitored with commercial interests in mind. If these platforms would stand by their privacy-related claims, this would also insinuate there would be a minimal profile of data attached to the user in comparison to those held by major tech and social media companies.

It is clear that privacy policies are often not completely read or are overlooked entirely by internet users. According to the Pew Research Center, only 9% of adults always read the privacy policy of a website before agreeing to the terms and conditions. Some lawmakers are aware of the negative implications of letting this issue go unchecked and have consequently drafted legislation that could make using the internet, especially social media websites, safer in terms of the security and the usage of user data without holding an expectation that average Americans can realistically, consistently be aware of all the legal implications associated with using the internet.

The Effects of a Lack of Regulation on Privacy Standards

The Obama administration ushered in an era of increased surveillance on both citizens and non-citizens. Tech lobbyists used the Snowden leaks as a springboard to shroud the purpose of the data retention of major social media and tech companies, such as Google and Facebook, by arguing against sharing data directly with the government. This tactic resulted in the majority of the public overlooking what these companies were doing with user data internally.The Obama administration also began making it voluntary for citizenship-seekers and visa-seekers to include their social media “identifiers,” or handles, in their applications to the State Department. The Trump administration more recently made it mandatory to do so, which may be functionally forcing these individuals to self-censor in fear of retribution or heightened state scrutiny, even if these individuals are not actually doing or saying anything illegal on these digital platforms.

In many mainstream social media platforms, when fact-checkers attempt to combat misinformation, that which is deemed as false is censored or explicitly flagged as misinformation, which is then tied to the user’s account and aggregation of personal data. Artists who act openly in digital spaces must understand that it is not just their profile picture and username that can be used to identify the individual but also the aggregated profile of the individual that is built behind the scenes for commercial purposes that can also be extracted by law enforcement.

So, there is a sense of functional censorship that occurs within social media companies in content that faces the public, but the underlying practice of bulk data retention insinuates that immediate action does not always need to be taken to inflict pain on individuals or groups bound by ideological concern. Tech giants lobby to ensure that the government stays out of the core structures of their business but nonetheless retain user data profiles, which are built through countless algorithmic methods. If these profiles were to fall into the wrong hands, it could harm artists/activists who are simply attempting to exercise their own rights in a fashion that would have once physically occurred in a “town square” but no longer can because of the nature of the internet and other factors, such as the social distancing measures imposed due to the current global pandemic. Major social media platforms are very drawing to artists because they have the interconnectivity necessary to maximize outreach, generate debate, and capture the attention of necessary audiences. As such, it is essential to look to alternatives and educate others on these issues.

Recommendations 

Arts management organizations have the unique chance to both back certain movements and individuals who have promise in changing others’ minds. Moving forward, there are forms of legislation that may impede the ability of these organizations to have any lasting impact if their main method of spreading awareness is through digital spheres without proper veiling of the artistic subject and/or artist. The EARN IT Act is one such piece of legislation. As stated, true anonymity is difficult to attain in digital spaces, as too often “the individual's control over who has access to personal information is compromised by government surveillance and commercial data mining.” If arts management organizations take lobbying efforts against this form of legislation, artists may feel more inclined to spread awareness of topics of ideological debate if they can expect backing from arts establishments, the patrons of these establishments, and various followers connected to these spaces.

It is best to educate individuals on the most effective way to navigate through and act within these spaces, while offering support for their right to their point of view or expression. Considering even nearly all Heinz College graduate students surveyed were not aware of such a potentially paradigm-shifting piece of legislation, extending resources regarding political involvement to students could have a massive impact on awareness surrounding these issues. Many could argue digital privacy could be more easily grasped by the public if individuals brought it upon themselves to stay informed about the political sphere, but the reality is that digital privacy is a diverse and complex subject. To expect the masses to understand the legalese behind certain corporate policies and/or fragmented state-to-federal-level policies centered around personal data is not only an unrealistic belief, but it also shifts the burden away from those who directly profit or benefit from the lack of understanding of the masses to operate in a fair and sustainable manner. 

Senator Sherrod Brown (D-Ohio) released, in discussion draft form, the Data Accountability and Transparency Act (DATA) in June, and though it hasn’t gained traction, with increased support, companies may soon be regulated in their retention of data to only hold users’ personal data when it is “strictly necessary.” This would place the burden on those who monetarily benefit from data retention and sharing. The enactment of such a bill would potentially also institute a federal “Data Accountability and Transparency Agency” which would ensure proper privacy standards are upheld for U.S. citizens, much like Canada’s Office of the Privacy Commissioner. These advancements could provide more comfort to artists or digital activists in using digital spaces to elucidate topics of dissenting ideology to either corporate or governmental structures. 

It would also benefit arts organizations to develop properly encrypted digital spaces to allow for artists to act within these spaces, even if they chose to do so anonymously. There are currently not enough protective standards for artists who act in mainstream digital spaces, and with the emergence of political direction towards the drafting of bills like the EARN IT Act, the future will likely bring more opposition to free expression on digital platforms if lobbying doesn’t occur for the public interest. 

The Electronic Frontier Foundation and the National Coalition Against Censorship are two organizations that could increase their scope and effectiveness if they were to gain immense support from arts organizations, especially regarding unconstitutional content moderation and monitoring. Regarding data privacy legislation, the Electronic Privacy Information Center frequently uses the Freedom of Information Act to obtain information about unnecessary governmental oversight and privacy policies and could always benefit from third-party backing. Supporting privacy is supporting autonomy and the basis for free expression in a world where the lines between our society and digital spaces are increasingly becoming blurred.

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