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Welcome to the inaugural edition of CDT's Tech Talk, where we chat up the smartest people in tech policy to go beyond the headlines while doing our very best to avoid acronyms. We can do it. I'm Brian Waslowski, and it's time to talk tech policy. This week, we'll explore what constitutes a true threat in the online world and what the Supreme Court has to say about it. And we'll help you take better control of your digital legacy that you will leave behind when you die. A bit morbid perhaps, but trust me, this is something you should be thinking about. The laws managing what happens to your digital assets are vague to nonexistent. But that doesn't mean you can't take steps to manage your digital legacy. I have CDT's very own Ellie Lang here with me today, and she's going to discuss how you can take control of your digital legacy. And in fact, she developed a guide that is online at www.cdt.org, that tells you just how to do that. Welcome, Allie. How are you? Hey, Brian. Thanks for having me. So good to see you. We get to talk every day, but rarely do we get to talk and get be recorded, so that's kinda fun. Yeah, it's kinda fun. Fun. So your piece came out just a few weeks ago and it really resonated with me. Partially I had a friend because I had a a very good friend who passed away far too soon and when he passed away his mother, took control of his Facebook account. And at first, it was kind of nice, you know, it was a memorial page for him, and everyone was posting things. But then she got a little bit weird and creepy and started friending people and commenting on different posts posts as though she were my friend. And I ended up having to unfriend him, which is kind of sad. But then at the same time, I just know that this is not something that he would have wanted to happen to his Facebook account. And I'm certain he didn't think about that, before passing away. Is this a common thing? Yeah, it's interesting,

So what, I mean, I guess what you were writing about is really what someone should do to make sure that that doesn't happen. So that their wishes are understood

Well, I mean, so I would imagine there's a ton of different ways that you could go about doing this. I mean, and it would be different for any platform you're on. Whether it's email, gosh, I mean, I would like, you know, maybe Aruba to go in and clean up my email and make that disappear. I just just looked this morning and I have over 10,000 messages in my inbox of my personal Gmail account.

Yeah. No. It's fascinating when you you bring up that point. The fact is there is so much information being created and we're still kind of at the early stages when you look at history in terms of collecting the sort of data and the sort of records that people keep online. They chronicle their lives. And I think you wrote in your post that they're sort of writing their own history in a way that was never done before. So I I so I think it will be fascinating to see what they do with that. So if you had a piece of advice to someone that really wants to take control of their digital legacy, What are the things like, what are a couple of concrete steps that they should do right now?

for an addiction program or or a counselor or something where you've had very very sensitive communications I would make sure that's factored into your decision because that's that's a huge deal those confidences were made, you know, in good faith Wow, yeah that's true a lot of things are happening necessarily in person anymore. They're happening in a way that's recorded. What about things like passwords? I mean, you mentioned that Gmail has a system, Facebook has a system. What about sites without systems? You know, I'm doubting that like certain banks have thought through this. Or, you know, dating sites we mentioned before. You know, should you share your passwords with people? Should you store them someplace that they're accessible? What's a way to go about that? So don't put them in your will, cause wills are eventually public. And so you don't wanna hear your whole password. That's a good point. Out out out in the password history out there. I think

just in sort of a broad stroke, that people have access to your accounts. Yeah, it it sounds a lot like making sure, you know, when people used to lock things up in a safe in their house. Yeah, make sure the combination is around. Exactly, exactly. So that you could do that. You know, when my grandmother died a bit ago, my parents went through, you know, their house and were finding photographs and all that sort of stuff. And I imagine that as we move forward, people are going to be wanting to do the same thing in the different email accounts and the Facebook accounts. There's gonna be that joy of remembering and discovering things from the past and this. But gosh, it is surely a different world when you have to think about what you need to clean out and what you have to manage and what you have to prepare for. Fascinating stuff. Yeah. I think I think you're right. I mean, for most people, I think that they want their logos to have access. And I think that's good. I mean, I'm not trying to say, like, you should never give someone access to your accounts when you die. I think you should if you want to, but I don't think it should be the default because there are a lot of people who don't have good relationships with their families. There are a lot of families who,

it. That makes a lot of sense. And that's why you titled your piece Taking or Digital Legacy Taking Control of Your Digital Assets. Something close to that. Thank you so much, Ally. It was great chatting. Any last parting thoughts you wanna share? Nope. No. I can't make Well, that's perfect. You covered it all. Always great chatting, and we hopefully will have you on Tech Talk again soon. Great. Thanks, Brian. Take care. Is that a jerkish Facebook post or a true threat? Recently, the Supreme Court heard a case in which the defendant, Anthony Alanis, was convicted under the interstate threat statute for posting rap lyrics and other statements online that expressed violent thoughts and desires involving his estranged wife. No doubt these were offensive, but should these kinds of statements be legally considered true threats? The Center for Democracy and Technology, along with the ACLU, the National Coalition Against Censorship, and the Abrams Institute for Freedom of Expression at Yale Law School. That's an impressive group there. All mild and amicus brief in the case. I'm joined now by CDT's free expression director, Emma Alonso, who is going to tell us why CDT filed a brief, what the court decided, and, of course, what it means. Welcome, Emma. Thank you for having me on the show. You know, the first one is always the best one, so you're gonna make it, like, rock star seller. And I really think that you probably have the hardest job here at CDT because leading the free expression works, so often we end up on the side of, you know, cases that are not necessarily the most appealing and certainly this one or at least the post that Mr. Alon has posted were not, you know, things that too many people would love to see.

But why did we, you know, file a brief in this? Yeah and that's I mean that's typically the case in, First Amendment law. You're never really dealing with, easy cases. You're always kind of in the realm of more extreme speech or speech that seems to be really pushing the edge of what is part of our open and robust, you know, exchange and dialogue as a society and what maybe has crossed the line into something that the government can regulate. Just because we don't like the speech doesn't mean it shouldn't be out there. Right. And it's really important to remember that when we're talking about something like the true threat statute, the question we're really asking is when can government send a person to prison solely for having said something? And, you know, there will be times when somebody has incited imminent lawless action or tried to directly threatened a person and with the full intention of putting them in fear of their life or fear of their safety. And in those cases, you know, we do think it's reasonable to treat that kind of activity as a crime and to punish somebody. But there's a lot of speech that falls far short of that standard. And that's part of our, you know, strong tradition of protecting the widest range of speech possible. So we were interested in this case because it was, for for a number of reasons, but as you might have seen, you know, the headlines about the case, a lot of, a lot of the reporting on this was calling it the Facebook threats case. Right. Right? And what's gonna happen with the the Facebook threats? And everybody can kind of think of times that they've seen online communications that, you know, they were surprised by, shocked by, offended by. So I think there's a lot of script problems. I have to friend to plenty of people because of things I posted. But I don't think I felt threatened yet, so that's probably good. Yeah. By the end, social media gives us quite a view into the the thoughts and opinions of people that we might we might have, Good point. Realize they held those opinions before. And we're all sort of figuring out how to to deal with that and how to, to, respond as individuals and as a society. But our concern in this case was, we wanted to make sure that the court really understood the context of online speech. Because the question, kind of that issue was what standard does the government have to prove to convict someone of having threatened a person? Does the government have to prove, as we were arguing, that that person intended to communicate the threat? Or, does the government have to prove, as the lower court held, only that a reasonable person would have thought that this statement was a threat. Oh, interesting. So it's really the difference between did the speaker intend to threaten or did the audience feel threatened? And one of the big concerns that we've heard from a lot prosecutors and a lot of people who were arguing for the lower standard, for the idea that if the audience feels threatened, that's enough to build a case on, you hear a lot of concerns that, you know, the Internet's the Wild West. There's so little context on for online communication. People are posting under pseudonyms, or they're posting anonymously, and how are you ever supposed to divine the, you know, the real thoughts and intent of a speaker? It's just setting too high of a bar for prosecution. And what we wanted to help the court understand is that there's actually a lot to online communication that can help show you the context, can help show you what a particular speaker and the choices that they were making was intending.

And so that, you know, that there is enough for prosecution to potentially build a case. What are some examples of that? Is it like, you know, the different platforms that you posted on? I mean, I guess Facebook's a good example. If I were to threaten someone and not tag them in it or if I were to threaten someone and tag them in it in it. Is that too different, you know? One clearly shows my intent to threaten them. One may just be me venting.

That's, yeah, exactly. There's so many different choices that if you wanna, you know, if you wanna express your frustration with me online. I've never been frustrated with you, Emma. You've got so many different options there, right? You could send an email to your friend talking about me. You could, post on Facebook, but we're not friends and I don't see that. You could tweet about it to the world, or you could send that communication directly to me. Each of those things sort of reveals a different idea that you might be having about who are you trying to express this message to. And if you're not trying to express the message to me, saying that you were intending to to make me feel threatened, I think is a pretty difficult case to make. Interesting. So there there are things that speakers do

to kind of that What happens when you then amplify it though? Is there an angle? I mean a lot of things when you look at it at least social media, the application effect, you know, if someone retweets me, which I mean, let's be honest, rarely happens, but there are times that things do go viral and perhaps to places that I certainly didn't even intend, you know, whether it be a tweet or you name it with the platform. If it does take off, does that change the case for courts? Should that factor into it? That was another

key point that we were trying to to emphasize to the court that the reason the, reasonable audience standard, the reasonable person does the audience feel threatened standard for prosecuting these cases could really raise a big risk for chilling freedom of expression online. Because you as a speaker, you know, you might take some steps to target your message at a particular audience, but ultimately, it's pretty easy for other people to take your comments out of context and to decontextualize them, to take them out of that know, clear targeting just to a circle of your closest friends and share them with the world. Either, you know, retweet them to thousands of more followers than you might have

or, take a screenshot and post it on another website entirely. Or you can't even Snapchat. Yeah. Yeah. Yeah. Yeah. Yeah. Yeah. Snapchat can't go away now if you do that little

screen shot on the phone. It's too easy where you hold those buttons. Yeah. Yeah. And that I mean that's the the key with digital communications. It's so easy for different parts of your audience to, to take your communications into new audiences that you have no idea about. It means that a speaker would really be kind of, you know, in a very difficult position of if I want to make sure that no reasonable person in my audience could could think this is a threat, but I don't even know who my audience might be. Right. How, you know, that that does not give speakers really much of a sense of how they can possibly stay on the right side of the law. So we really wanted to emphasize to the court that, you know, it's not that there's no way to understand kind of the nitty gritty of, online communications, but really to drive home that it's, you know, if we're talking about criminal law, we need to ensure that a person actually is aware of the facts that, you know, that make them culpable of a crime.

So the Supreme Court took the case, they heard it, they came out with a decision. I'm sure they agreed with us, right?

Sort of. Okay. We so we and and a number of commentators were considering this case a, you know, a First Amendment case and making arguments about what does the First Amendment require in terms of this this knowledge standard in a criminal law. But the court, as it is very, likely to do, decided to avoid the constitutional question. They always They like to stop short of having to opine on on matters of constitutional interpretation if they can, and looked at it purely as kind a statutory interpretation question. And we're looking specifically at this federal statute that defines what, what the crime of sending a threatening communication is. What does that statute require in terms of knowledge on the part of the speaker? And they kind of broke it down into, two components to the statute that you have to know that you transmitted a communication and you had to know that the communication contained a threat. And in doing this and sort of breaking this down and putting it in the, from the perspective of the speaker and what the speaker has to know, they did strike down the, or reverse the lower court's holding that, a reasonable person standard was appropriate. So the, the third circuit had upheld a decision where a jury was instructed to decide would a reasonable audience have thought that this statement was a threat, and the court did clearly say, No, that standard is too low. It's gotta be what does the speaker intend. But there's still some uncertainty and some lack of clarity there, because they didn't, the court did not precisely pin down exactly what the knowledge standard is. So I'm sure we'll end up seeing some, you know, some more cases around this, this statute looking at, you know, if a speaker is speaking recklessly, they, you know, they have some awareness that what they're saying could or, you know, would likely be understood as a threat by another person. Is that enough or do you need to get, does the government need to demonstrate the highest standard that they they the person, the speaker themselves intended,

person to feel threatened? So for courts that do get cases like this in the future,

likely there's gonna be more new ground broken on it. It's not settled. Yeah. Then that that fundamental question of what is required by the First Amendment in terms of a a knowledge standard, for the crime of threatening someone is still it's in the same sort of unresolved place where you have some circuits, taking the the very highest standard, and others, you know, allowing for for more of this recklessness.

Well the Internet sure is changing the way that threats happen and this is a fascinating topic, Emma. Thank you so much for joining us. Absolutely. And we hope to have you back on again very, very soon. I'm sure we'll have some, more unsavory cases to talk about but always fun chatting. Great. Thank you. Thank you. That's it for this week's CDT Tech Talk. Thanks for listening. If there's topics you want us to discuss in the future, feel free to send us a tweet at SendemTech or hit us up on Facebook. Until next week, I'm Brian.