Click the link below to listen to our latest episode, exploring the relationships between social media and legal issues, with a focus on how partisan and binary thinking pervades these spaces. Also available on Apple Music and Spotify
Author: CultureCritically
Politics and Twitter: How Twitter Political Leaders responded to the raid of Mar-A-Lago
by: Tino Mataruka
On August 8th, 2022 former United States President Donald J. Trump’s home and hotel in The Mar-A-Lago Club in Palm Beach, Florida were raided in search of documents that were believed to be mishandled during Trump’s time in the White House. This was a major event and there is even speculation it could result in the former president having to forgo his desire to re-run for office in 2024 due to his alleged mishandling of government documents. This event has generated significant discourse on various social media sites, specifically Twitter. For this blog post I have examined both a conservative social media influencer and a liberal social media influencer with the hopes of comparing and contrasting their rampant tweets and the backlash or support that proceeded in their respective comment sections to analyze how legal opinion gets formed on social media after new stories come out.
Steven Crowder is a conservative social media influencer that has his own podcast called “Louder with Crowder”. When the news broke out about the search warrant issued against former president Trump, Crowder was extreme in his response and caused a good amount of response in his Twitter comment section. Throughout this section I will analyze a few of his tweets and the responses to them. In Crowder’s initial reaction to the Mar-A-Lago raid, he issued a series of tweets condemning the invasion of Trump’s home and concluded with the statement, “Tomorrow is war. Sleep well.”
This statement was a hyperbole used with the hopes of causing an uproar in response to the Mar-A-Lago raid that could have served to initiate a panic amongst Crowder’s followers or anyone who saw the tweet. Crowder then proceeded the next day to tweet statements such as, “This is one of the darkest days in regards to your personal freedoms,” and “This is one of those days that you’re going to tell your children and grandchildren about,” again engaging his audience in an over-exaggeration to the raid of the former president. This hyperbole can be compared to propaganda where one uses biased and sometimes misleading information to promote their own political beliefs and agendas. With Crowder having just under two million Twitter followers, everything that he posts will at least be seen by thousands of people and when one has the power to deliver a message to this many people it can be very dangerous. For example the capitol riots started off with Trump’s comments on the election and then spread to people on social media where the numbers of people set to storm Washington just continued to rise until the issue became a national security crisis. Something like that can be ignited by a single tweet like the ones that Crowder has put out. The response though to these tweets is a whole other issue in itself that starts in the battlegrounds of the Twitter comment section.
Crowder’s ‘Darkest days’ tweet received 40.1k likes, 4.9k retweets, and 1.1k quote tweets as of September 13th. From going through Crowder’s tweets and scrolling through his comment sections, there is absolutely no shortage of discourse between Crowder supporters and non-supporters.
Surprisingly, the most liked comment of all these says, “My personal freedoms seem pretty chill not gonna lie”. With this being a tweet from Crowder’s page, you would think that the most liked comment would be one in favor of his opinion, but with this tweet it is in fact the opposite. All this does is speak volumes to how bold Crowder’s tweet was. More likely than not, someone who doesn’t follow Crowder or doesn’t agree with his opinions is not going to seek out his account to comment on it, but because of how Twitter pushes certain trending tweets out with its algorithm this person and others were able to see it and they believed the tweet was so outlandish that they had to storm into his comment section to try and disprove whatever he had said. Because Crowder attempted to disprove a national security issue with little evidence to support his claims, it was easy for people to combat him and it has gotten to the point where it’s not even a democratic vs republican issue, but rather one of Trump loyalists vs everyone else. The person who commented that they still have their personal freedoms could be conservative or liberal because not all conservatives are Trump supporters. From diving deeper into the comments, we just continue to see evidence of how subjective Twitter can be, with people hoping for attention through their public comments.
Adam Serwer is a liberal social media influencer who also serves as a staff writer for ‘The Athletic’. Following the raid of Mar-A-Lago, Serwer’s tweets completely differed from those of Steven Crowder, as we should expect from a democrat vs republican. While Crowder engaged in hyperbole by claiming that “Tomorrow is War”, Serwer mostly tweeted only in response to the tweets of others. 
Twitter comment sections can get very heated, as evidenced by responses to Steven Crowder. Adam Serwer, however, seems to have plenty of support in his comment section for his stance on Trump’s Mar-A-Lago raid.
Now, it would be inaccurate to say that Serwer has a “better” fan base than Crowder based on the comment sections of one particular case, but it is interesting that not many opposing opinions were seen in Serwer’s comments. As I mentioned earlier, a simple explanation could be that Serwer’s tweets weren’t as unhinged, but it could also be due to the fact that Serwer has 1.6 million fewer followers than Crowder. For example, Serwer’s most liked tweet within 72 hours following the Mar-A-Lago raid received 12.5k likes where Crowder’s received over 40k. The discourse seen in Crowder’s comment section could be seen as a result of his popularity through performative outrage while the lack of discourse in Serwer’s tweets is because he is less emotional in his tweets and his reach isn’t broad enough to have non-supporters running to his comments to refute every tweet that he puts out.
The raid of Donald Trump’s Mar-A-Lago home and hotel is a very important issue that is still ongoing and could be for a while and depending on how the case is ruled the documents found in Trump’s home could jeopardize his chances of re-running for office in 2024. The reaction to this event by political social media leaders on Twitter served to influence and upset those that keep up with them. To dive deeper into the social media aspect of hot current events, I analyzed the tweets and comment sections of Steven Crowder and Adam Serwer. From this I learned that there are different ways to go about spreading information on social media, as Serwer seemed to go with a research based approach whileCrowder utilized a brash and unhinged approach. I also learned that discrepancies in follow count can have an impact on the amount of discourse with an influencer’s comment section as evidenced by the amount of discourse within Crowder’s comments. Because of today’s culture, many people look to these political influencers to then formulate their own opinions. This can be dangerous at times due to the lack of fact checking done by these influencers and, while their views may be objectively correct, all that it ever seems to do is divide the political parties within this nation rather than unify for the achievement of a whole nation.
The Depp vs Heard Defamation Case: A Meme-Filled Virtual Circus
By: Ashley Myers
On June 1, 2022, millions of people were glued to their streaming devices awaiting the verdict of the six–week long defamation trial between movie star Johnny Depp and former spouse Amber Heard. The trial was high-profile and dramatic, the perfect combination for it to blow up on social media and become the topic of conversation on apps such as TikTok and Twitter. If you showed any interest in the case, it followed you on social media, with the recommendation algorithms constantly pushing case content onto your feed. Even if you did not keep up with the case, you probably had some idea of what was going on. However, the defamation case was misrepresented both in news media and social media and was often reported as a sexual abuse case, causing a major divide between Depp and Heard fans all over the world, as well as creating confusion for indifferent spectators of the case. Social media effectively turned a serious defamation case into a meme-filled virtual circus all while misinforming the public and encouraging people to choose one side or the other based on who they liked better, ignoring what was really important: the facts of the case, and what defamation entails.
Throughout the trial, people began to lose sight of the jury’s task at hand: to determine whether or not Heard had defamed Depp in her op-ed in The Sun published in 2018. Defamation occurs when someone makes a false statement about you which causes harm to your reputation, and Depp sued Heard for making defamatory statements in her op-ed where she described herself as a victim of domestic violence. The jury was responsible to determine four things in order to convict Heard of being guilty of defaming Depp: that the statement was false, that the statement was published, that the statement caused harm, and that the statement would not be considered under free speech. After hearing all of the evidence after six weeks, the jury found Heard liable for three claims of defamation and ordered her to pay Depp $15 million in damages, and found Depp liable for one claim of defamation and ordered him to pay Heard $2 million in damages. Though this verdict pleased many Depp fans and avid watchers of the trial, Heard supporters were furious at the outcome and have since spoken out in articles and social media, with statement such as “Many victims of domestic violence who watched this trial will likely conclude that, if they share their experiences, they will be disbelieved, shamed, and ostracized”. What the writers of these articles fail to realize is that this case was in fact not a sexual abuse trial, and it was not the jury’s duty to determine who was the ‘victim’ and who was the ‘abuser’. It was to determine whether or not Heard had defamed Depp. This misinterpretation of the trial, however, did not begin after the reading of the verdict. It was present throughout the entirety of the trial, with Depp fans blaming Heard and vice versa. Because media narratives tended to frame the case in similar ways to a sexual abuse case, it caused obscure understandings of what the deliberations of the trial were meant to determine. This effectively resulted in misrepresentation and misinterpretation of what the case entailed.
Amy Singer, long-time trial consultant and psychologist, has admitted that the “political-type online mudslinging” between opposing sides in the media made it tough not just for a passerby on the internet to understand what was going on, but also for professionals who were following the trial. Along with expressing this confusion, Singer’s team used a set of social media listening tools to deduce what jurors might be thinking by following social media posts of people with similar demographics and backgrounds. What she ended up finding, however, was beyond just what the jurors might have been thinking. She found that the trial was more like a political debate than a typical legal debate you might hear in conversations concerning abuse or murder cases, as she detected rifts between the two fanbases. She also found that it was a younger crowd who were invested in the case on social media on apps such as TikTok and Instagram, while older people were more concerned with the war in Ukraine.
News media has an enormous influence on our society, as it does not only communicate information, but also offers journalists individual opinions and perspectives on said information. We have long recognized journalists use framing when reporting on any given story, and the frames used during Depp v Heard obscured some of the particular legal issues at play. A prime example of this phenomenon can be seen in the Depp vs Heard defamation case. Many times news media companies want to portray themselves in a specific way, whether that is by promoting a specific political side, or profusely supporting a movement. This can be seen in the overwhelming amount of Pro-Heard articles that popped up after the trial’s verdict, claiming that the #MeToo movement has faced a setback due to the trial ruling. Pro-Depp reports remain largely on social media and are buried in the news media. Many of the articles bashed Depp and his legal team with remarks such as comparing attorney Camille Vasquez to character Regina George from the movie Mean Girls. The same type of misleading reporting on the Pro-Depp side can be seen similarly on different TikTok videos, with content creators accusing Heard of “putting on performance of her life” during the trial. With accounts of the trial on the media largely taking sides, it created confusion and led viewers away from understanding the reality of the defamation suit that was being tried, and into a world of fabricated and glamorized stories that were molded to fit each news outlet’s narrative.
Though the news media failed to provide adequate context concerning the trial, social media seemed to be the bigger perpetrator in distorting trial facts. With fans of both sides flooding apps such as TikTok and Twitter with memes, hashtags, and opinions, social media essentially tried the case in the court of public opinion. Creators went back and forth posting their takes on the trial and creating memes of both celebrities as well as their legal teams and the judge in the trial. There were also a multitude of different hashtags that emerged from the chaos, one of which being #justiceforjohnnydepp which has nearly 7 billion views on TikTok. The fans of both sides were ruthless in their posts, with some people going as far as posing death threats to people involved in the case. However, most of these opinionated posts were not based on the facts of the case and the evidence presented to the jury. They were based more on fandoms and who people decided they liked better, Johnny Depp or Amber Heard. Although the jury did indeed decide the outcome of the case, the future of the actors’ careers will ultimately be based on how they are viewed in the public eye, and both of them were harmed due to content creators going rampant on social media. This meme-filed virtual circus effectively encouraged misrepresentation of the case on social media by the dueling fandoms all while disregarding the legalities of the trial.
Though we have seen high profile cases such as the OJ Simpson murder trial blow up in the media, the Depp vs Heard case was one of the biggest cases since social media has been as prominent as it is today, with Law & Crime’s Youtube page attracting nearly a billion views on content related to the case. The cameras in the courtroom documenting the entirety of the trial is the reason that the case turned into a sensational affair that, in reality, should have been a matter that stayed between the defendant and plaintiff. With the whole world offering their opinions, it is hard to see past the buzz and see the reality: two individuals, neither of which are saints, fighting a legal battle to restore their names that have been plastered all over the media. Not all press is good press, and every main player that was involved in the trial was being talked about in the media, which has affected their lives and will continue to for years to come.
This trial had the opportunity to be a legal lesson for viewers but it instead turned into a war on social media between two ruthless fandoms who did not want to believe that their favorite star was problematic. This effectively created noise that made the trial hard for the public to understand the case, and ultimately distracted everyone following the trial from the legal facts. This analysis of the trials’ presence in the media has shown us how important articulation is between legal proceedings and celebrity culture when it comes to both news media and social media. Without a clear understanding by spectators of how different cases are tried, there is always the possibility that a high profile case could be misrepresented and effectively misunderstood by viewers, thus creating a ruthless environment on social media that negatively affects the outcome of the trial for both parties, no matter the verdict.
Culture Critically podcast episode 10
In this episode, undergraduate students Brooke Harley and Madison Wilkins join James Gilmore to talk about the media framing around Roe v Wade’s overturning and the renewed criticisms around the Supreme Court’s legitimacy. Part of our series on the intersections of law, culture, and media.
The episode is also available on Spotify and Apple Music.
Roe v. Wade: Through the Eyes of the Media
By: Madison Wilkins
We often speak of law and culture in one breath. That may be so because both systems play key roles in our society today. Therefore, it is desirable to examine their similarities and the impact they have on one another. Law and culture typically go hand in hand. They impact one another back and forth by creating breaking news stories, the shift in societal norms, and complete cultural resets. However, it is the deep dive that we take to determine how they are perceived in the public eye, and more importantly their ability to simultaneously allow us to understand the public agenda.
Agenda setting is the ability to influence the importance placed on the topics of the public agenda. The study of agenda-setting describes the way media attempts to influence viewers, and establish a hierarchy of news prevalence. Agenda setting today allows for the media to decide what should and should not be seen as crucial information. Somewhere along the way, society became so easily influenced by what was said on television and through social media that we may often utilize it as our only source.
Roe v. Wade has recently hit the headlines once again as the Supreme Court overturned the decision.. A case formed in 1970 managed to make its way back into the public agenda and people have major differences in opinion. According to Oyez, “In 1970, Jane Roe filed a lawsuit against Henry Wade, the district attorney of Dallas County, Texas, where she resided, challenging a Texas law making abortion illegal except by a doctor’s orders to save a woman’s life. In her lawsuit, Roe alleged that the state laws were unconstitutionally vague and abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments”.
I believe Roe v Wade has such a powerful position in law and culture because it defies this idea that all “MEN” are created equal as it calls the equality of women in the United States into question. Additionally, it also promotes the more feminist approach now where many see the importance of a women’s right to her own body. While most would take a look at why Roe v Wade was overturned, agenda setting allows us to focus on the media’s ability to influence the importance of the overtun and the direct impacts of this Supreme Court Ruling. Although many saw the decision as a pivotal moment in history, I question if people would’ve still placed such importance if the media had not. The public was definitely moved by the headlines and breaking news stories. Ultimately, bringing forth more emotions and opinions on the topic.
Fox News Framing: The Right Side of the Aisle
Although agenda setting encompasses influence, each major news network took different routes for the influence of Roe v Wade in the public agenda. The Fox News Agenda Setting of Roe v Wade offers a more conservative approach compared to their media company rivals. Brook Singman of Fox had the opportunity to discuss the Supreme Court ruling with Donald Trump. According to Brooke Singman, when asked whether he feels he played a role in the reversal of Roe v. Wade, after having appointed three conservative justices to the high court, Donald Trump told Fox News: “God made the decision. We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives”. Fox News saw the overturn as a victory, a long awaited decision in the making. Fox News utilized agenda setting in order to influence the public to see Roe v Wade overturned as a moment of triumph. They did so by evoking emotion and having the public look at the decision through the lense of a pro life citizen. There was great celebration from their viewers and supporters as we saw footage of the supporters in Washington D.C. following the decision. Amongst all the excitement from Fox News watchers, other news networks influenced opinions on Roe v Wade differently and they took a different approach to do so.
CNN Framing: The Left Side of the Aisle
Despite the fact that CNN is also a leading news media company, they influenced and see Roe v Wade in a different lense than those of Fox News. CNN viewed Roe v Wade from a more logical perspective and took a more informative approach. They explained the news for what it was and the impact that it has on various states and the governing laws that would be put into place. However, in the breaking news article Biden’s opinion was brought forth on the matter. He claimed that this supreme court ruling casts a “dark shadow” over our country. Therefore, CNN did see Roe v Wade overturned as a loss for our country. According to the writers of CNN, “‘It’s a sad day for the court and for the country,’ Biden said, speaking from the White House, calling for Congress to codify the right to an abortion — something that’s unlikely given the split balance of power in the Senate”. Biden’s perspective was important to CNN as they felt it would influence the public opinion to hear the President of the United State’s state how the Supreme Court’s decision is going to negatively impact our country. In terms of agenda setting, you’ll notice that CNN’s breaking news story offers more visuals of state impacts as opposed to the conservative Fox news that utilized a more emotional video to influence their viewers. CNN and Fox are consistently seen on opposing sides on the other ends of the political scales, but it is crucial to see what a more moderate approach has to say about the overturn of Roe v Wade.
NBC News: A Moderate Perspective
The National Broadcasting Company or NBC is an American-English language commercial broadcast television and radio network. It is the flagship property of the NBC Entertainment division of NBCUniversal, a division of Comcast. NBC tends to take a less political approach to law and culture. According to their news source, “The Supreme Court on Friday overturned the landmark Roe v. Wade decision that guaranteed the right to abortion in the United States, undoing decades of legal precedent and paving the way for around half of all states to ban the procedure”. NBC influenced users to stay in the know by bringing them consistent news on states and further decisions to be made. They did not frame it as a victory or a dark storm cloud, it is simply being shared as news from the perspective of an unbiased individual. Many of the articles that followed the breaking news also cited updates with very nonemotional and uninvolved headlines. These new stories served more as updates and less for political usage.
All things considered, there’s a different side to every story. Whether it’s Fox News, CNN, or NBC, you’ll receive the same news from different perspectives with different influential intentions. There is a reason we often speak of law and culture in one breath. They both work as systems to play key roles in change within our society. Law and culture typically go hand in hand. The evidence of this is shown in our history. Despite the fact that Roe v Wade was put into place decades ago, the culture of this ever changing generation and the opinions of citizens today display a need for change. Whether you are on either side of the aisle, we see people striving for positive impacts. Regardless of what they believe in, we are seeing law and culture on both sides. They impact one another back and forth by creating breaking news stories and the shift in societal norms. Ultimately, they are the reason we are influenced into deciding and understanding what we should perceive as important. As we move forward, we will continue to see these effects in Roe v Wade, and other current events the media deems relevant.
How Roe v. Wade sparked discussion of Supreme Court legitimacy
by: Brooke Harley
As ordinary people that live in the United States, each and every one of us is affected by both the Law and the Culture that surrounds us every day. In the age of social media and the polarization of liberal and conservative beliefs, we have come to see law and culture intersect in a multitude of new areas. As this particular series takes a deep-dive into Law and Culture and the multitude of discussions surrounding it, I believe that it is worth taking a critical look into one of the sources guiding the laws that impact our everyday lives. The Supreme Court is the highest law-enforcing governing body in the United States. Every aspect of law is dictated by the Court’s decisions and rulings, based on their interpretation of the Constitution and other prior legislation. The Supreme Court was established to be a fundamentally non-partisan body that balances out the very partisan legislative and executive branches of the U.S. government. And yet, after the recent decision to overturn Roe vs. Wade, an influx in reports and commentaries debate whether the Supreme Court has remained a partisan entity. With this discussion comes questions regarding the legitimacy of the Supreme Court as well as whether the Court still serves the public as a whole. After gathering opinions from a variety of sources, I’ve analyzed the discussion from each side of the aisle. Being as though the culture of division in politics is very prevalent in this case, what exactly is being discussed?
With the recent overturning of Roe v. Wade, many socially liberal individuals have become outraged about why and how such a prominent and monumental case could be overruled. In the last four years, three justices were replaced by the same (largely disliked) president, who didn’t even win the popular vote, at the hands of the minority leader of the House of Representatives. This created a base for criticism largely from liberals regarding the legitimacy of the Supreme Court as a non-partisan entity. Many of the conversations surrounds the two most recent appointments to the Supreme Court, and Mitch McConnell’s actions during the hearings in the house. The minority party leader was able to block the previous President Obama’s nomination of Merrick Garland to replace Justice Antonin Scalia, claiming that “No Justice should be appointed during an election year”. Four years later, McConnell pushed his own party’s nominee, Amy Coney Barrett, onto the bench to replace Justice Ginsburg, just five weeks away from the next presidential election revealing that his thoughts about appointing justices during election years had ulterior motives. The liberal ideology towards the Supreme Court is one that is generally described as believing in a “living constitution”, meaning that the constitution should be interpreted during Court rulings to reflect the way people live today, and shouldn’t be strictly adhered to. Being as this differs greatly from the conservative “originalist” ideology about how the constitution should be interpreted, media conversations focus largely on the idea that the conservative point of view is outdated and no longer effective, despite the fact that now two thirds of Supreme Court justices subscribe to a more conservative ideology. Much of the discourse surrounding the difference in party ideologies also includes comments about Donald Trump, a very unpopular president with liberals. These mentions include comments about how Trump claimed that this would happen if he had the chance to appoint justices, likely an attempt to get the public to associate the conservative viewpoint with Donald Trump, creating a negative connotation. Another common criticism of the Supreme Court is that not only are liberals unnerved, but conservative Justices share the sentiment about how bad the Court looks after overturning Roe v. Wade. The liberal media makes sure to emphasize Justice Roberts’ statements regarding how the recent ruling divides the country specifically about how unnecessary it really was. Justice Roberts, who is known to be conservative, has made it known that although he is not upset by the ruling, he fears what it will do to the public’s view and support of the Supreme Court. Liberal-leaning media outlets make an effort to include statements from conservative legislators regarding how the recent ruling divides the country, and has sparked so much conversation regarding the legitimacy of the Supreme Court, and how unnecessary it really was. It’s clear that the discussion and framing of the legitimacy of the Supreme Court from a liberal point of view is meant to be a conversation about whether this branch of the government continues to serve the public the way it should, and whether it remains the non-partisan and non-biased entity that it was always meant to be.
While liberals clearly have their own thoughts and opinions regarding the Supreme Court, there are just as many opposing opinions that come from the conservative side of the aisle. Many individuals that subscribe to a socially conservative ideology saw the overturning of Roe v. Wade as a win and most of the criticism regarding the Supreme Court comes more in support of the branch and targets the liberal discussion. A primary criticism of the liberal media targets the idea that there is only a discussion of the court’s legitimacy because they didn’t get their way in the ruling, with comments made about a minority of the public being so loud in the media, that we think more people are not in support of the decision than are. This sparks discourse from conservatives stating that challenging the Supreme Court and its functioning is a very serious allegation, and risks the public losing trust in the branch based on opinion, rather than the true functioning of the court. In response to the liberal point made that the constitution is outdated and from a completely different time period, conservative media argues that the constitution has supported a well functioning and successful government and nation for centuries, so although it may be old, it does its job. Claims made about how our Constitution and government structure have gotten us through so many historical crises, prove that something must be working. Much of the language used in these conversations uses words like “delegitimize” and mentions of majority versus minority, likely to emphasize how the court is still a legitimate entity, and to point out just how focused on the partisan aspect the liberal media has become. Now the criticism that the conservative media makes directly at the Supreme Court deals mostly with how they should not be influenced by the public’s opinion on certain topics and cases, tying into the conservative belief that the Constitution should be followed explicitly, and the Justices that sit on the bench are the best fit to do so. Generally speaking, the conservative media frames their opinions based on the idea that the court is not operating any differently than it always has, and that liberals should not criticize the branch and jeopardize its legitimacy on the basis of emotion and opinion.
The overruling of Roe v. Wade caused much discourse between cable news networks and has truly reinforced the culture of division surrounding political discussion. Where one side argues, the other will always disagree, and the legitimacy and functioning of the Supreme Court is not an exception to the rule. Conservatives will defend their party while liberals will criticize it and vice versa for as long as the two party political structure exists. However, should one party be able to influence and swing the court’s rulings so much in just four years, the structure of the Supreme Court itself is fundamentally challenged. And although ideally the court should not rule on the basis of opinion, it is clear that recently, it has. The decision about Roe v. Wade sets a very serious and ominous precedent for how easily the Supreme Court can change, and who really holds the power to change it.
Introduction: Law, Culture, and Media Framing
For our first series this semester, the students in the Collaborative decided to explore the relationships between law and culture. Our initial conversations around this topic explored how “the law” is not some neutral or everlasting thing, but changes based on shifts in cultural practice, political ideology, and various values and morals, among others. At the same time, the legal domain has tremendous authority to exercise control over everyday life through criminalizing various behaviors or through operationalizing discrimination through the courts.
The posts in this series are all motivated by recent, high-profile legal cases that took place over the summer of 2022. These include Dobbs v. Jackson Women’s Health Organization, which effectively overturned Roe v. Wade and ruled there is no constitutional protection or right to an abortion; Depp v. Heard, which was focused on defamation related to Heard’s claims of “representing domestic abuse;” and the Department of Justice’s seizure of classified materials from former President Trump’s Mar-a-Lago resort in Florida, which is an ongoing legal matter over the handling of classified materials and the power of the FBI to search the materials taken by former presidents at the end of their terms.
For each of these stories, we decided to evade questions of judgment around the legal matters themselves. We do not discuss, in this series, whether the verdict in Depp v Heard was incorrect and damaging, or what the political consequences of the Dobbs decision might be. We have chosen instead to examine issues of media framing around these issues, and how they indicate a constellation between law, media, technology, and culture. Across the four posts, you will note shifting conversations between broadcast/cable news and social media chatter. We illustrate repeatedly how the framing of these issues amplified elements of the stories that made it more difficult to assess what’s going on with the articulation between law and culture, sometimes in ways that made it next to impossible to follow the actual legal arguments, as with the social media conversations during Depp v Heard.
Collectively, then, this series offers a critique of media framing—both on broadcast, online, and social media—of recent high-profile legal cases. We suggest that media frames routinely reproduce ideological and often partisan framing, or they utilize trends in celebrity culture and fandom (as with Depp, Heard, and Trump) to reframe the issues away from the particular legal matter being debated. The effect of this, we suggest, prevents us from collectively having meaningful public discourse about legal processes. We hope these reflections inspire critical reading and attention to how legal matters are discussed in a variety of mediated spaces, so we might be better equipped to assess the ways law shapes culture, and vice versa.
Culture Critically episode 09: Warner Bros Discovery
Click the link below to listen to this week’s episode of Culture Critically:
Contents:
- Show intro
- Story of the week: Amazon’s iRobot acquisition
- Main feature: Warner Bros Discovery
Full show script
Culture Critically script
Intro
Hello and welcome back to Culture Critically. We’re a podcast focusing on communication, media, technology, and popular culture, and how these impact the ways we think, know, and live.
I’m your host, James Gilmore, and I’m a professor of media and technology studies in Clemson University’s department of communication.
Today we’re jumping in and talking about the big announcements regarding Warner Bros. Discovery, including the news that HBO Max canceled multiple movies and others from their platform.
As always, Culture Critically is focused on generative and provisional conversation about these ideas. My hope is to get us thinking and talking about important issues.
The Story of the Week
Recently, Amazon acquired iRobot, the company which produces Roomba vacuums. Roomba are the most popular robot vacuum, which automatically navigates a floor and collects dirt
The acquisition has been alarming to privacy advocates, which may come as a surprise to you if you’ve never used a Roomba, or never really thought about how yours works. While early – and, still, less advanced — models of Roomba used sensors to note objects and walls and automatically redirect their path, more advanced models like the Roomba i3 actually use floor mapping to generate and store maps of your room, ostensibly to “help” Roomba learn how to navigate space and remember where things are located. As these Roomba scan spaces, they create maps, which can be stored and given designated areas to focus or avoid cleaning.
As Bloomberg put it over the weekend: Amazon has “acquired a mapping company. To be more precise: a company that can make maps of your home.” At its surface, the acquisition allows Amazon to integrate more of its smart home products together, and paves the way for even more appliances that are integrated.
But, like with Google and Apple, these products are also about turning the home not into a system of automation but also data collection. In a paper I co-wrote with one of my graduate students, Carla White, last year—and which hopefully is close to being accepted for publication!—we argued that products like Google Nest are partly about trying to make self-surveillance feel pleasurable and omnipresent, an ongoing part of domestic practice that changes the way we imagine our homes. Amazon is clearly part of this, too, and as they continue to expand into the so-called Internet of Things marketplace, we need to be mindful of how the very definition of “appliance” may be changing. While we tend to just think of them as a category for domestic goods, it’s worth remembering the early definitions of “appliance” derive from words like attach, adhere, join. What we’re watching—heck, what we’ve been watching with the efforts to make consumer-grade internet-connected home devices popular over the last 10-15 years—is a rearticulation of what appliances are attaching themselves to. They are connected, joined to data collection operations of massive technology and commerce companies, and they are part of the ongoing development of a culture of surveillance within our homes.
Main story: WB Discovery
Our main story in today’s podcast is the announcement that HBO Max and Discovery Plus would merge next year, creating a new streaming platform that comes out of the creation of Warner Bros Discovery, a company merger which took place earlier this year.
Now, this is an early announcement and there’s still not a lot that’s known about what this new streaming platform will be. As the company’s global streaming chief put it: the platform will have “something for everyone in the household,” from developing a decade-long plan for superhero media, housing legacy media offerings like Harry Potter and a steady stream of reality programming from Discovery’s line-up (https://www.washingtonpost.com/business/2022/08/05/hbo-max-discovery-plus-warner/)
Instead of speculating about the future, like how the two platform techs will merge, how content will be organized, and how the platform infrastructure will try to compete with successful platforms like Disney Plus, I want to take this episode to look at a series of recent decisions which tell us something about the chaos that’s guiding WB Discovery’s current approach.
So, in thinking about what’s to come, let’s understand how this streaming platform is related to three decisions that have happened since WB Discovery merged in April:
1 – The decision to gut the CNN Plus streaming news service
2 – The decision to cancel and permanently shelve two movies, specifically Batgirl
3 – The quiet move to remove half a dozen HBO Max exclusive titles from the platform
Now, before I talk about each of these, let’s talk about streaming platforms generally
They market themselves largely on accessibility – the ability for a subscriber to watch whatever they want from a library of thousands of titles, whenever they want. This anytime, anywhere, on-demand culture (as Chuck Tryon called it a decade ago) was how Netflix became such a big—pardon the phrase—disruptor in film and television production. As subscribers could watch entire seasons of television in a day instead of doled out over three-nine months, Netflix grew a massive subscriber base as other companies pivoted to streaming and tried to market their content against Netflix, leading to what’s been called “the streaming wars” between companies like Netflix, Amazon, Hulu, and has expanded to include HBO Max, Peacock, Paramount Plus, Disney Plus, etc etc etc
Okay, but what’s important to understand is that accessibility is a trap (or, at the very least, a misnomer). As I (and countless others) have written about, these are also about data collection and analysis, trying to satisfy the long-held dream of knowing exactly who is watching media and how they watch, from what titles they browse, to how long it takes them to make selections, to how often they actually finish what they start.
Companies like Netflix have long claimed that this allows them to personalize your experiences, or at least to more finely group and recommend content to you. Disney Plus does the same thing, and it’s reasonable to assume HBO Max does some form of it, as well.
So it’s potentially easy to see why WB Discovery would want to bridge HBO Max and Discovery Plus: They can gather even more data from a broader subscriber base OR understand how the same subscribers navigate content across these two platforms. For example, my wife and I are subscribers to both HBO Max and Discovery Plus. If audience data from these two platforms AREN’T shared, or part of the same analysis pool, the company may not know that we binged Property Brothers at the start of the pandemic and I’m a devout watcher of Barry. Those two things don’t necessarily go together, and it’s part of what has historically made understanding audience behavior at scale so difficult. On a pragmatic level, then, the creation of this service makes sense as a way to feed and continue to hone the data collection operations of the platform.
Okay, fair enough. But that also doesn’t explain the bizarre and antiquated charts the company used to explain the “unique and complementary” distinctions between HBO Max and Discovery Plus, saying for instance that HBO Max is “male skew” and “appointment viewing,” while Discovery Plus is “female skew” and “comfort viewing.” It’s a chart that reproduces some of the worst cliches of gendering an audience, most obviously ones which relegate supposed female shows to “comfort” (a synonym for things with lesser quality) and supposed male shows to “appointment” (a synonym for things with higher quality). If the company plans to actually make data-driven decisions, it’s hard to understand how they arrived at this chart, which seems to be locked more in the 1960s than the 2020s in the way it thinks about audiences.
But what about the three decisions the company has recently made regarding canning, shelving, and deleting its existing properties?
First, let’s think about CNN Plus. You may have forgotten about CNN Plus—it was only around for a month. As Axios reported soon after the service shut down (https://www.axios.com/2022/04/26/cnn-plus-pitch-deck-subscribers), the platform stumbled out of the gate and was poised to “burn through $400 million in 2022 alone,” as a summary on The Verge discussed (https://www.theverge.com/23043232/cnn-plus-axios-chat-shut-down-streaming-news) – News has historically been a loss leader for most media companies, and Discovery quickly realized that bifurcating the news audience between cable and streaming was only going to hurt sales for both.
But let’s think about CNN Plus in the context of controlled audience management. The dream may very well have been to eventually move everything onto streaming, allowing producers and network executives to better understand how people watch news, and change their formats and scripts to match that.
More perplexing was the decision to simply cancel and shelve the completed Batgirl movie, which cost $90 million dollars and starred Leslie Grace in the title role with Michael Keaton set to return as Bruce Wayne. As many outlets noted, it’s rare for a studio to simply not release a movie, even if they thought it was bad (look around, there are lots of bad movies released each year).
Rarer still was the decision to simply REMOVE original content HBO Max had produced and exclusively distributed. These include the Anne Hathaway pandemic film Locked Down, the Seth Rogen comedy An American Pickle, the sci-fi romance Moonshot and the Robert Zemeckis movie The Witches. One of the perceived advantages of streaming platforms is the ability for companies to simply stockpile enormous backlogs of content with variable quality.
Moreover, HBO Max didn’t even announce these titles would be pulled. It was folks on Reddit who first noticed and reported on their disappearance.
Instead, Warner Bros Discovery seems intent on writing off these assets. As the company’s CFO put it, the canceled films didn’t, according to a New York Times summary, “fit the combined company’s plan to generate ‘maximum returns’ on its investment in content.” The Times suggests these moves have to do with the $55 billion debt the company was “saddled with” at the end of the merger due to spinning off from AT&T. (https://www.nytimes.com/2022/08/04/business/media/warner-bros-discovery-earnings.html)
So, this is a lot, especially since Warner Bros Discovery only went public in April. In less than six months, the company has canceled what was supposed to be a premier streaming news platform, shelved multiple movies in profitable intellectual property franchises, and removed assets from a platform library.
Let’s not forget that this isn’t even the only bit of turmoil to hit Warner Bros and HBO Max in the last two years. As COVID has battered the movie theater business, Warner Bros made the decision to release all its major movies day-and-date in theaters and on HBO Max in 2021, a decision that some embraced and made others roil. Director Christopher Nolan has said he won’t work with Warner Bros anymore after the way they distributed Tenet, and has taken his Oppenheimer movie to Universal.
Still, the HBO brand has staying power: the network had 140 Emmy nominations this year (https://variety.com/2022/tv/awards/emmys-nominations-list-2022-1235313788/) including 25 for Succession, the most of any show.
What all of this points to is a crisis that comes from several trends coming together:
1 – The crisis in theatrical revenue, which inspired a huge pivot to streaming
2 – The potential downturn in streaming, with Netflix reported losing nearly a million subscribers in the second quarter of this year, the biggest loss in the company’s history
3 – The ongoing swing of mergers and acquisitions, where different company cultures clash as media assets continue to be absorbed into huge telecommunication companies.
And while we can’t say for sure where it’s headed from here, I think it’s safe to say the people running WBD want to tighten the ship, cut costs, and work towards improving audience data collection across the company’s assets.
That’s to say, they’re invested in control, which for me remains the key word for understanding how platforms operate and how companies manage them, even when they make decisions that appear ludicrous.
Conclusion
Alright, that’s our show. Thank you for joining us on today’s episode of Culture Critically.
You can find us on social media, with rebranded accounts:
On Twitter, we’re @culturecriticly and on Instagram we’re @culturecritically
You can find me @JamesNGilmore
Thanks for listening and I look forward to being back with you soon.
Culture Critically episode 08: Flo and the cultural politics of Anonymous Mode
Click the link below to listen to this week’s episode of Culture Critically:
Contents:
- Show intro
- Story of the week: Twitter sues Elon Musk
- Main feature: Flo and Anonymous Mode
Full show script
Culture Critically script
Intro
Hello and welcome back to Culture Critically. We’re a podcast focusing on communication, media, technology, and popular culture, and how these impact the ways we think, know, and live.
I’m your host, James Gilmore, and I’m a professor of media and technology studies in Clemson University’s department of communication.
We’ve got a good one for you today. We’ll be continuing our discussion of pregnancy tracking apps in the wake of the decision to overturn Roe v Wade
As always, Culture Critically is focused on generative and provisional conversation about these ideas. My hope is to get us thinking and talking about important issues.
The Story of the Week
Twitter is suing Elon Musk for pulling out of his bid to acquire the company, setting up a legal battle that will shape the future of Twitter’s ownership and its operations
With reports in Wired indicating the company is “on autopilot” and “a mess,” we’re seeing one of the social media titans continuing to sit at a crossroads not just for its future ownership, but also potentially for its vision, growth, and long-term viability. https://www.wired.com/story/as-elon-musk-walks-twitter-workers-say-no-ones-in-charge/
This story will be playing out over months, I’m sure, and we’ll hope to cover it in more detail as we learn about the lawsuit, Musk’s response, and what pathways it will move through.
Main story: Flo and Anonymous Mode
If you missed our last episode, I talked briefly about the calls to delete period tracking apps as well as to request all data from your profile.
Flo, which has a userbase of nearly 250 million users, announced the launch of its new Anonymous Mode on June 30.
So let’s talk about
1: What Anonymous Mode is
2: Why it is necessary
3: What it indicates about the politics of this present crisis
Now, let me just start with the obvious: I am, indeed, a white man talking to you about women’s reproductive health. I acknowledge that’s problematic, to say the least. I was hoping to find a female-identifying colleague to join me on today’s podcast to take the lead on this discussion, but this podcast is still relatively new, and people’s schedules are difficult in the summer, and I’ve had a hard time attracting potential guests. I’m still working on it though!
If YOU listening—yes, you!—have some perspective and insight on this or any other issue, reach out to us. I’m @JamesNGilmore on Twitter and you can DM me directly if you’d like to come on the show and talk about your research, your insights, and your perspective on this or any other issue related to technology, media, and culture. That’s right, Culture Critically needs guests. It could be YOU!
So I apologize in advance if I’m unable to capture the complexity of this issue, especially for any of the women-identifying listeners. If I miss anything important, write me a correction and I’ll feature it in the next episode. I want to be sure I’m getting this as right as I can.
According to Flo’s June 30 press release, the new Anonymous Mode “deidentifies data on a deeper level by removing personal email, name and technical identifiers. In the event that Flo receives an official request to identify a user by name or email, Anonymous Mode will prevent Flo from being able to connect data to an individual”
Flo also notes the company “does not share or sell any health data with any other company”
As I mentioned on the last episode, Flo’s previous promises to protect data were misleading.
An FTC complaint alleged the following: : Flo, as early as 2016, “handed users’ health information out to numerous third parties, including Google, LLC; Google’s separate marketing service, Fabric…Facebook, Inc. through its Facebook Analytics tool…marketing firm AppsFlyer, Inc…and analytics firm Flurry, Inc….And Respondent took no action to limit what these companies could do with the users’ information. Rather, they merely agreed to each company’s standard terms of service. By doing so, Respondent gave these third parties the ability to use Flo App users’ personal health information expansively, including for advertising” https://www.ftc.gov/system/files/documents/cases/192_3133_flo_health_complaint.pdf
Flo settled this complaint, and according to the New York Times, one of the conditions of this settlement is that Flo must “obtain users’ consent before sharing their health details and ot obtain an independent review of its privacy practices” https://www.nytimes.com/2021/01/28/us/period-apps-health-technology-women-privacy.html
The company denied wrongdoing, and insisted it only used a vaguely defined “analytics” to improve user experience
So Flo has a specious track record with matching its claims about privacy to its actions. Flo did obtain a review of its privacy practices that did not find any current misrepresentations, and the company included quotes from that report in their June 30 announcement.
But what does any of this have to do with Roe v. Wade?
Flo—and apps like it, as well as most consumer-grade wearable fitness trackers—are not health devices. Their terms of service make that very clear, often for legal purposes.
As such, they aren’t covered by HIPAA, which has federal regulatory law governing how patient health data can be protected and transferred.
Flo, Fitbit, Apple, Samsung, these companies exist outside the protections from HIPAA because they aren’t, for the most part, associated with an actual doctor or hospital.
This can be confusing, because these companies regularly claim that in order for their products to provide the most accurate information, you need to disclose as much data as possible. And for women who are trying to gather actionable data about their own bodies for fertility purposes or to monitor any number of health conditions, or heck—just because they want to—it can be infuriating to learn that this data isn’t actually treated as federally regulated Health Data.
As Kayte Spector-Bagdady wrote on Twitter after the draft of the Supreme Court ruling leaked, “Your period information can be used to track if and when you got pregnant. And if and when you are no longer pregnant. And that information can have absolutely no protections for who gets it (and how they use it)” https://news.bloomberglaw.com/pharma-and-life-sciences/fertility-apps-bound-by-weak-disclosure-rules-in-post-roe-world
So because this data is not protected, law enforcement agencies could request Flo to release information related to your account if they are investigating you for potentially having had an abortion.
A recent Vox piece about this issue lays out how major companies like Google and Apple regularly comply with law enforcement requests for data, and do not see the data you provide them as deserving of legal protection if you are suspected of a crime. https://www.vox.com/recode/2022/7/6/23196809/period-apps-roe-dobbs-data-privacy-abortion
If this is coming as a surprise to you, it really shouldn’t. While not explicitly connected, much of this can easily be traced to the development of the US Patriot Act and the ways it legalized digital wiretapping through things like the PRISM program. The legalized investigation of digital data means that all of our traces can be used against us if we become a person of interest.
So what does this indicate?
First, let’s talk about self-tracking. The term has become somewhat popularized—at least it was a decade ago—to describe how we can use apps and devices to gather information about how much we move, what we eat, and various other elements of everyday life. I’ve published on this, as have dozens of others media and technology researchers. Gina Neff and Dawn Nafus’s book Self-Tracking, published in 2016, maps out the contours of what this industry looked like about six years ago now.
The problem with so-called “self-tracking” is that it’s largely a misnomer. It implies a system where you are tracking yourself. But that’s rarely the case. The work has been delegated, offloaded to some sort of computational system that analyzes data you provide it. Apple Watch activity data processes a variety of sensors to determine if you’ve met your move goals for the day, much as Flo analyzes the data you provide to make algorithmically determined analyses of your health.
“Self-tracking” as we currently define it is actually all about mediation, the use of a third party to analyze the data we collect—sometimes passively, sometimes actively inputting it—and having it make sense to us.
While these devices have been met with grand claims about the diffusion of health knowledge into everyday life, the democratization of medical tracking, about the ability to push science forward given how many millions of people contribute data to these systems, we should be cautious.
I think what’s important here is to recognize that self-tracking is actually a misnomer. Rather, we need to think about this as always-already an act of self-surveillance, where we willingly provide data to a variety of third parties
While we’ve sort of, I think, collectively accepted that companies like Google and Facebook are data extraction companies as much as anything else—that they are invested in surveillance capitalism, to borrow Zuboff’s concept—we need to do more to scrutinize the variety of health, wellness, and productivity apps that ask us to constantly input data.
Which gets us to 3: How this underscores the current politics. We are in a moment where juridical changes have suddenly shifted what is considered criminal activity and criminal behavior. If law enforcement agencies are investigating whether an abortion has taken place because it is a legally punishable act
An NPR story from July 11, for instance, details the practice of keyword warrants. https://www.npr.org/2022/07/11/1110391316/google-data-abortion-prosecutions
Keyword warrants allow law enforcement to “request information on everyone who has Googled specific search terms,” and these can be cross-referenced against Geofence warrants, which “seek information about every device that has crossed into a defined location in a specific period of time.”
If you can triangulate keyword searches, phone location, and health data provided to Flo, law enforcement can create lists of potential criminals, using nothing but data provided to smartphones, obtained through warrant requests, to prosecute women.
Currently, there’s a case in Colorado where an attorney has filed a motion to suppress evidence obtained from a keyword warrant, claiming it is antithetical to the Fourth Amendment. https://www.theverge.com/2022/7/1/23191406/denver-arson-google-keyword-warrant-challenge-constitutional-fourth-amendment-privacy
We’re in another moment, much like the Patriot Act 20 years ago, where the legitimation of data-based surveillance is coming to the fore.
The most infuriating part of this, of course, is that women should feel like they can trust a company to secure their data. And I’m not saying that Flo’s Anonymous Mode isn’t a step in the right direction. But we should be treating health and wellness data as intrinsically needing to be anonymized, not just encrypted. Anonymous should be a default position for building these apps, not something that is developed after settling a complaint with the FTC about privacy issues.
And in addition to the work being done to help secure reproductive rights and bodily autonomy for women, we need to push for even more legislation which can reduce, if not eliminate, keyword warrants and geofence warrants before they spiral out of control.
We can, ourselves, begin understanding self-tracking as a mode of self-surveillance, and do an audit on the kinds of data we are supplying, and whether we are encrypting and anonymizing that data sufficiently. This doesn’t change the systemic problem of data surveillance, but it might help protect us.
Imagine analog, handwritten ways to create these charts and perform the work of tracking.
Conclusion
Alright, that’s our show. Thank you for joining us on today’s episode of Culture Critically.
You can find us on social media, with rebranded accounts:
On Twitter, we’re @culturecriticly and on Instagram we’re @culturecritically
You can find me @JamesNGilmore
Thanks for listening and I look forward to being back with you soon.
Culture Critically podcast episode 07: Mental health platforms
Click below to listen to this week’s episode of Culture Critically
Show contents:
- General show update
- Story of the week: Flo and ‘Anonymous Mode’
- Online mental health platforms and the cul de sac of care
Full show script
Intro
Hello and welcome back to Culture Critically. It’s been a while! We took time off at the end of the academic year, I’ve been teaching summer classes, and I’ve got some updates to share with you on today’s show.
If you’re joining us for the first time, we’re a podcast that talks about big ideas in communication, media, technology, and popular culture. We care about how these areas impact how we think, know, and live.
I’m your host, James Gilmore, and I’m a professor of media and technology studies in Clemson University’s department of communication.
In today’s episode, I’m going to be outlining some of the changes in the podcast moving forward, before talking with you about a recent journal publication analyzing online mental health platforms.
We’re moving to a planned podcast every other week for the time being, likely with more happening during the academic year.
In our previous podcasts, we’d focused on roundtable discussions with students. While students will remain an integral part of the podcast during the academic year, I also want to find opportunities to devote episodes to discussing recent events, interview colleagues and friends, and provide perspective and commentary.
Because undergraduate students rotate in and out of working with me, they’ll be invited on to share research occasionally, often near the midpoint and end of semesters.
I’ve been thinking, in the month and a half off, about what this podcast is meant to do. I’ve arrived at trying to play around with podcasting as a form of “gray literature”
I can’t promise everything—heck, anything—we discuss will be fully formed, but it seems that right now, with so much going on in the realms of media, technology, and culture, this blog can serve as a space for reflection, commentary, and discussion.
There are lots of opportunities for CS researchers and analysts to develop gray literature online: Blogs, microblogging like Twitter, video-based media like YouTube and TikTok, and audio media like podcasting all offer unique opportunities.
I’m excited to play around with what I can offer you in this show
Story of the week
We have to highlight the Supreme Court’s decision to overturn Roe v Wade, a decision that is already causing chaos across the United States and leaving the future of bodily autonomy and reproductive rights in horrifying uncertainty.
But for the story of the week, we wanted to highlight how technology is part of this chaos and uncertainty. You may have heard about the calls to delete period tracking apps as well as to request all data from your profile.
For the next episode of Culture Critically, I’m hoping to do a deeper dive into the policies around data collection on these apps and talk about them in relation to issues in datafication and surveillance.
For now, I want to point out that Flo, the most popular period tracking app, just on Friday announced that it intends to create an Anonymous Mode for data collection. In a June 24 tweet, Flo Period Tracker said: “You deserve the right to protect your data. We will soon be launching an ‘Anonymous Mode’ that removes your personal identity from your Flo account, so that no one can identify you”
A year and a half ago, Flo settled a complaint with the Federal Trade Commission over how the company had “deceived its users” based on language stating it would not share “information regarding…marked cycles, pregnancy, symptoms [and] notes” to any third parties or other health data to certain types of parties. https://www.mobihealthnews.com/news/fertility-app-flo-health-settles-ftc-over-sensitive-data-sharing-complaint
The FTC alleged the following: Flo, as early as 2016, “handed users’ health information out to numerous third parties, including Google, LLC; Google’s separate marketing service, Fabric…Facebook, Inc. through its Facebook Analytics tool…marketing firm AppsFlyer, Inc…and analytics firm Flurry, Inc….And Respondent took no action to limit what these companies could do with the users’ information. Rather, they merely agreed to each company’s standard terms of service. By doing so, Respondent gave these third parties the ability to use Flo App users’ personal health information expansively, including for advertising” https://www.ftc.gov/system/files/documents/cases/192_3133_flo_health_complaint.pdf
I want to devote our next episode of Culture Critically to talking about Flo and other trackers more in-depth, but for now let me just say this: Flo fundamentally failed to protect its users for a three year period, until—according to the FTC complaint—the Wall Street Journal revealed this practice in 2019. Flo may say that you have the right to protect your data, but that’s not a right the company was interested in protecting until it became expedient for it to do so, first in 2019 after its deceptive practices were made public, and again in 2022 after women are rushing to stop using these apps.
Flo is not here to protect you, and you shouldn’t expect a third party tracking application with this kind of record to adequately care for your health data.
Main story: TAO
But onto our main story, which is a discussion of my recently published article “Stuck in a cul de sac of care: Therapy Assistance Online and the platformization of mental health services for college students.” It was published several months ago in Television & New Media, and I share authorship with seven former students, most of whom were undergraduates when we performed this research together!
This article emerged from our undergraduate students trying to grapple with the lack of available mental health resources on our campus. And it’s not just a Clemson problem. In a 2018 study of 571 US college counseling centers, 34% report a wait list to mental health services and an average wait time of 17 days.
So instead of directing more funding these centers so they can hire more counselors and serve the needs of students dealing with a variety of mental health concerns—most specifically anxiety, depression, stress, and sleeping disorders—many universities are trying to instead license technological platforms that can supplement care. At Clemson, we have TAO, or Therapy Assistance Online, which is a cognitive behavioral therapy platform designed to help provide care to students who can’t get an appointment in the counseling center.
When COVID-19 first hit and Clemson pivoted to online education in March 2020, the university sent an email to all employees and all students about how to navigate a landscape becoming rapidly upended. There was a dedicated section on Mental Health, and TAO was touted in the first paragraph of this section: “There are nine online treatments with multiple modules from which you can select to best address your concerns.”
Calling TAO “online treatment” is generous, at best. We were already in the midst of researching the platform when this email was sent, and we were shocked that the university was placing it front and center in its mental health response to the COVID crisis. TAO’s promotional materials sound great: a user an “work on behavioral change online anytime…work when you want, where you want.” While it positions itself as accessible, it also positions itslf as work, and it’s up to the user to navigate, understand, and apply its information. There’s no therapist, no counselor, just pre-made videos loaded with stock footage. All the while, users are providing data to the platform without receiving feedback.
In one of its promotional videos—which was embedded on Clemson’s counseling and psychological services website—TAO explicitly argues it is more effective than face-to-face therapy at improving “life functioning,” “global mental health,” “well-being” and “symptoms” in a bar graph that is never explained. Moreover, its promotions do not align with the realities of the program: Its founder has claimed the platform uses “artificial intelligence to create practice tools so people can practice with feedback throughout the week.” For instance, there are claims the platform “introduces [users] to different approaches to depression, and then based on how they are responding to depression perhaps moves them into a cul-de-sac of modules that take that particular approach. If they’re not responding the way you would expect or not really liking it…you can move them to a different model.”
There’s a logic of personalization here and, in fairness to TAO, maybe that does exist in some version of its service, and maybe our university just didn’t license that version of the service, but here’s some of what we found:
- Its consent form explicitly claims it is “not a treatment for mental health disorders. If you require treatment for an emotional or mental health problem please contat your local counseling service.” However, our local counseling service was deferring to TAO as an online treatment, misrepresenting it. The company calls TAO a “prevention program,” but its legal documents qualify that pretty considerably: it is “a platform to assist you to bounce back from life’s disappointments and frustrations.” Using “disappointments” and “frustrations” in place of words like “stress’ and “depression” make clear that TAO is legally positioning itself not as a care provider, but as something else.
- We were constantly asked to complete the Warwick-Edinburgh Mental Well-Being Scale, which asked questions like “I’ve been feeling optimistic about the future” on a scale of “None of the time” to “All of the time.” Over our two-month research period, we all responded truthfully in our personal accounts to the Scale. Every time we completed the survey, we received a prompt thanking the user, and that was about it. None of us saw any changes in the programs we were offered or the assignments we were asked to complete. This Scale was just sucking up our data, but never giving us anything in return.
- This replayed itself when completing other activities. In the session “Core Beliefs,” we were asked “What is the first picture that comes to mind from your childhood?” After filling out a form and hitting next, we were then asked “Why? What was the conclusion you reached from this experience?” We answered these questions honestly, with some of us sharing traumatic memories and others sharing non-traumatic memories. Regardless, hitting “Submit” simply ended the session and we never received any sort of feedback from the system.
- As we used TAO, we came to see it more as a data extraction platform than a care platform. While teletherapy has many benefits for many people when done ethically and compassionately, the experience of using TAO was mostly just constantly giving the platform survey responses, qualitative answers, and answering other forms of prompts while never getting the kind of personalization, feedback, or care structures promised in the advertising
Calling TAO a cul-de-sac is quite fitting, as in French it simply means “dead end.” TAO is a constant series of dead ends.
We know that mental health is reaching epidemic status among college campuses, if it’s not already there. If we can’t provide better funding to support these students, we deserve to give them better than a bunch of forms to fill out and hope that works.
Conclusion
Alright, that’s our show. Thank you for joining us on today’s episode of Culture Critically.
You can find us on social media, with rebranded accounts:
On Twitter, we’re @culturecriticly and on Instagram we’re @culturecritically
You can find me @JamesNGilmore
Thanks for listening and I look forward to being back with you soon.
Culture Critically 