They know where you sleep, and now they know where you get coffee.

That was the message driven home by the recently created website PleaseRobMe.com. The site aggregates Twitter posts sent when a person uses Foursquare to check in at a location — meaning they’re basically telling the world that they’re not at home at the moment.

According to the folks at PleaseRobMe, if a would-be burglar knows you’re out with friends, that “leaves one place you’re definitely not…home.”

The site is a commentary on the downside of overusing location-based services like Foursquare and Loopt. These services allow users to “check-in” at different locations around the globe using smartphones or laptops. Once checked-in, a user can choose to publicly share where they happen to be by using services like Twitter.

“The site allows people to meet and is a way to find out what is going on in your area,”
said Dennis Crowley, CEO and co-founder of Foursquare. Recently, Crowley checked-in at an airport and was surprised to discover a friend he hadn’t seen in months was just two terminals away. “That’s the benefit,” Crowley said.

While one of PleaseRobMe’s founders insists the site is not really an attempt to aid cat burglars, it could be just one step away from walking outside the First Amendment’s protection of free speech.

Is PleaseRobMe Aiding Burglars?

While the First Amendment’s guarantee that “Congress shall make no law…abridging the freedom of speech” seems absolute, not every form of speech is guarded by the Constitution. Rather, the Supreme Court has held that some forms of speech are not entitled to full protection.

According to several lower courts, speech that aids and abets illegal acts are not shielded by the First Amendment. So, if a website were to aid in the commission of a crime and was sued for its part in the offense, the First Amendment would not offer the publisher any protection.

i-fc9707073be2369010e8a50f919f80a1-hitman.jpg

In an influential Fourth Circuit Court of Appeals case, Rice v. Paladin Enterprises, Paladin published a book titled, “Hit Man: A Technical Manual for Independent Contractors.” The book provided “detailed instructions about how to…execute and cover up a murder.” In 1993, a man named James Perry followed the author’s instructions, killing three people. Subsequently, relatives of the deceased successfully sued Paladin for aiding Perry in the murders.

The Fourth Circuit stated that in order to charge a publisher with aiding and abetting a crime, the publisher must intend for people to use the article to commit an illegal act. In coming to its decision, the court noted that Paladin’s book was “so comprehensive and detailed that it is as if the [author] were literally present with the would-be murderer” during the crime.

The founders of PleaseRobMe have consistently stated that they do not want people to use the site to rob a house. Instead, the site is a commentary on the amount of personal information people are making publicly available. In fact, a burglar would have a difficult time using PleaseRobMe to commit a crime, since the site does not provide anyone’s home address unless it too has been posted to Twitter.

Section 230 Defense

Be that as it may, PleaseRobMe begs a particularly important question. What if someone designed a site that was intended, and could be used, to aid burglars using publicly available information? Could they be sued after someone’s house was robbed?

While such a site may lack constitutional protection since its intended use would be to aid the commission of a crime, it could be protected by Congress. Section 230 of the Communications Decency Act gives immunity to any “interactive computer service,” such as a website, against civil lawsuits (but not criminal sanctions) that arise from third party publications.

Section 230 was passed in 1996, just as the Internet was just beginning to make headway with the American public. As many courts have stated, the history behind Section 230 made it clear that Congress did not want websites to be liable for the statements of others. The legislature felt that imposing such a burden would hamper the Internet’s development.

Normally, Section 230 is invoked when a website is sued for publishing a defamatory statement that was written by a guest poster or independent commenter. In these cases, “Section 230 is often considered to be a very strong protection against defamation suits,” said Robert Richards, co-founder of the Pennsylvania Center for the First Amendment.

The question currently facing courts is how far to “define the bounds of Section 230 immunity,” Richards said.

Although Section 230 is often applied to defamation lawsuits, it has also been employed in invasion of privacy, negligence and misappropriation claims. As a result of this expansion, it is not unthinkable that a court would extend Section 230 to protect a website against civil claims of aiding and abetting a burglary.

Of course, there is a question of whether such a website could be understood as merely facilitating third party publications. Nonetheless, in the wake of the PleaseRobMe controversy, the legal question posed here seems relevant, and is far from answered.

Do Location-Based Services Invade Privacy?

As location-based networks become more popular, the risk of sharing sensitive information increases as well. Though many lament the fact that so much personal information is available online, Foursquare’s Crowley said his service isn’t invasive.

i-9d911d16d15bc20faff1fb825e91b561-foursquare.jpg

“We’ve been working on the project since 2001 and have checked in almost every day for the last 10 years, and the only bad thing that’s happened is an ex-girlfriend will sometimes show up where I am,” Crowley said.

He emphatically noted that “Foursquare is not tracking you. You have to check in and voluntarily choose to make your location publicly available.”

“At the end of the day, you have to be aware of what you’re doing online and the consequences of your acts,” said Kurt Opsahl, senior attorney at the Electronic Frontier Foundation. “It’s a matter of expectations. People want to tell their friends where they are,but, as PleaseRobMe points out, other actors may see personal information as well.”

Although Foursquare users must volunteer to divulge their whereabouts with the general public, the site’s editors may share some information with local businesses when offering various promotions, according to Foursquare’s privacy policy.

This has caught the attention of Congress, which is set to hold a hearing titled, “The Collection and Use of Location Information for Commercial Purposes.” The hearing will discuss the privacy concerns that have arisen due to location-based services.

“The key issue with these types of sites is disclosure. If people are agreeing that information can be shared in this manner, then that’s a service that a company can provide,” said Opsahl.

While the notion of sharing personal information with businesses may make some people uneasy, there are potential benefits. For instance, Foursquare’s “mayor” promotion offers free products to the user who checks in at a location the most often.

“In Texas, there is a restaurant that will give away a free steak dinner to the person who checks in the most,” Crowley said.

Rob Arcamona is a second-year law student at the George Washington University Law School. Prior to attending law school, Rob worked at the Student Press Law Center and also helped establish ComRadio, the Pennsylvania State University’s student-run Internet-based radio station. He writes the Protecting the Source blog.