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Is it Time for Twitter to Reconsider its Terms of Service?

By Robyn Hagan Cain | Last updated on

Twitter has a bit of a P.R. conundrum on its hands this week after the Seventh Circuit Court of Appeals struck down an Indiana law banning sex offenders from social networks.

The problem: Should the micro-blogging platform amend its terms of service (TOS) to keep known sex offenders away?

The now-overturned law, Ind. Code § 35-42-4-12, prohibited certain registered sex offenders from "knowingly or intentionally" using a social networking web site or an instant messaging or chat room program that the offender knows allows users who are under 18. The American Civil Liberties Union of Indiana challenged the sex offender social media ban on First Amendment grounds.

Last year, District Judge Tanya Walton Pratt upheld the law, finding that Indiana had a strong interest in protecting children and social networking had created a "virtual playground for sexual predators," reports. The Seventh Circuit disagreed, finding that the ban broadly prohibited substantial protected speech rather than specifically targeting the evil of improper communications to minors.

How does this pose a unique problem for Twitter?

CNET explains that Facebook, under pressure from then-New York Attorney General Andrew Cuomo, modified its legal terms in 2009 to prohibit sex offenders from using the social network. The Facebook terms explicitly state, "You will not use Facebook if you are a convicted sex offender."

Twitter, by contrast, has no such ban, so it could face similar pressure to modify its TOS to ban sex offenders to make the platform safer.

Generally, violating a website's TOS wouldn't be a big deal, but federal prosecutors have been targeting certain TOS infractions under the Computer Fraud and Abuse Act (CFAA). The CFAA currently allows the feds to prosecute a user who violates a site's terms of service, though there has been talk of amending the law after Internet activist Aaron Swartz's death.

An amendment to the terms right now, however, could present its own problems. Advocates for greater Internet freedom are all-too-aware of the way that the CFAA can be used to prosecute violations of a private company's TOS. Changing the terms in a way that would effectively implement a sex offender Twitter ban under the CFAA could be perceived as an end run around the Seventh Circuit's First Amendment concerns.

So what should take priority? A "safer" social media experience or the First Amendment? Tweet your opinions to @FindLawLP.

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