NetChoice Opposes California Photo Takedown Bill

May 4, 2009  

Chairman Mike Feuer 

Vice Chair Van Tran 

Committee on Judiciary 

California State Assembly 

Subject:  Opposition to AB 632, requiring the takedown of images on social networking websites     

Dear Chairman Feuer and Vice Chair Tran: 

NetChoice writes to oppose Assembly Bill 632, which requires social networking websites to implement certain technologies and procedures to remove photo images upon notice from a user. We believe AB 632 has a number of problems associated with it, because it (a) underestimates the difficulty of properly administering an image removal system, and (b) harms freedom of speech over the Internet. 

AB 632 is a technology mandate that would force a broad range of websites to establish mechanisms to remove photos, videos, and even caricature or satiric images of its users. Many if not most online sites are incorporating some sort of social networking functionality. Therefore, this bill would encompass a number of community events, news, sports, and travel sites in addition to more commonly regarded social networking sites. 

As a result, this mandate would force thousands of websites to redesign their sites to encompass a number of considerations: 

1. A specific image must be readily identified on a specific page—this is a non-trivial exercise. Photos may be buried deeply in a user’s album containing thousands of other images, and URLs of particular pages often change.
2. Sites must determine whether an image is actually of the particular user requesting removal. Otherwise, users could request removal of a number of photos that bear their likeness, but do not actually include them, for a number of political, religious, or abusive reasons. Yet, even trained experts have difficulty identifying persons in photos, as images are affected by lighting, clothing, and changes in hair style or makeup. 
3. Removal must respect copyright law. Websites would face potential lawsuits from copyright owners if removing their copyrighted images negatively impacted them.
4. How to deal with group photos, where the user is just one of many people in the image?

The above considerations required by AB 632 place websites in an untenable position, since they would face potential liability for both removing and not removing images.    

Furthermore, consider the freedom of speech implications. As more people use the Internet to communicate and engage in social networks, including legislators, policymakers, journalists, celebrities, and business leaders, it is important to provide greater protections for speech online. Yet, AB 632 has serious loopholes that provide an end-around the First Amendment: 

• A legislator views certain photos as damaging to his chances for reelection, and demands them to be taken down.
• A celebrity does not like an unflattering image of her, and flags it for removal.
• A weblog engages in investigative journalism on local government corruption, posts photos associated with the story, but the local official demands takedown. 
• A cartoonist sketches a satiric cartoon that includes the image of a CEO who wants it removed.

Social networking sites are not equipped to deal with the intricacies of the above situations, and our public figures would know this. As a result, society would be the real losers under the approach dictated by AB 632. 

Instead, we suggest that a legislative approach focused on the harms of certain conduct, not a mandate on technology or business mechanisms. If an image is abusive or harassing, there may be better ways to update harassment and stalking statutes for electronic images so that law enforcement can effectively react. Moreover, the judiciary may need clearer guidance on how to deal with defamation law with regards to digital images.    

For the above reasons, we request that you oppose AB 632. Thank you for considering our views, and please let me know if I can provide further information. 

Sincerely, 

Braden Cox 

Policy Counsel, NetChoice 

cc:  Members of Committee on Judiciary