Social media platforms influence public discourse in profound ways. Billions of users worldwide and hundreds of millions in the United States rely on the platforms to connect with each other as well as with businesses, advocacy organizations, and governments. They depend on the platforms for news, including news about politics, political candidates, and elections. Through their business practices, policies, and design decisions, the platforms influence how we engage with one another and with the communities around us, with far-reaching implications for society. Yet even the social media companies themselves do not fully understand this influence. It is vital that the public understand better how the platforms are shaping public discourse—what relationships they encourage or discourage, what information they amplify or suppress, and what communities they bring together or pull apart.
Digital journalism and research are crucial to this process. Many of the most important stories written about the social media platforms have relied on basic tools of digital investigation. For example, investigations by The Markup revealed that YouTube’s ad-targeting blocklist includes keywords associated with social justice but excludes keywords associated with hate. A study by ProPublica and The Washington Post revealed that Facebook’s platform played a central role in the spread of misinformation and threats in the months prior to the attack on the Capitol on January 6, 2021. And a study by a Michigan State University professor detailed the means QAnon has used to evade Twitter’s attempts to crack down on misinformation.
Unfortunately, many platforms ban tools that are necessary to this kind of journalism and research—tools including the automated collection of public information and the creation of research accounts. Journalists and researchers who use these tools in violation of the platforms’ terms of service risk serious consequences. Their accounts may be suspended or disabled. They risk legal liability for breach of contract. And they face potential civil and criminal liability under the Computer Fraud and Abuse Act, which the Department of Justice and some platforms have in the past interpreted to prohibit certain violations of a website’s terms of service. The threat of liability has had a significant chilling effect. Journalists and researchers have modified their investigations to avoid violating the platforms’ terms of service, even when doing so has made their work less valuable to the public. In some cases, the fear of liability has led them to abandon important projects altogether.
We need a new approach. After documenting the legal risks that reporters and journalists face in studying the platforms, this white paper proposes a legislative safe harbor that would give legal protection to certain newsgathering and research projects focused on the platforms, so long as the projects respect the privacy of the platforms’ users and the integrity of the platforms’ services. The safe harbor is limited by design, and its adoption would not obviate the need for other reforms—including reforms relating to platform transparency. Enacting the safe harbor, however, would significantly expand the space for digital journalism and research that is urgently needed.