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While pundits and lawyers cross swords over free speech on social media, a quieter yet critically important principle is being ignored: property rights. In addition to violating the First Amendment, the rush to force social media platforms to host content violates the Fifth Amendment as wellin particular, the Takings Clause.

The Takings Clause says that government shall not take private property "for public use, without just compensation." While many are familiar with the clause's importance when the government wants to seize land through eminent domain, courts have also applied this right as a limit on the ability to overregulate property. For example, if a beach town requires the owners of oceanfront properties to let the public walk across their yards to get to the beach, this would require compensation, because the regulation effectively takes the property owner's right to exclude, a cornerstone of ownership.

Likewise, the Takings Clause shields social media platforms from regulations requiring they host content or users they want to exclude. These platforms have as much right to eject unwelcome digital interlopers as homeowners do to stop the government from using their yard as a public right of wayunless they are given just compensation. If states intend to force social media apps to host users and content against their wishes, they will have to pay for it.

Both state and federal laws already treat online platforms as property. All states criminalize unauthorized access to computer systems, often expressly framing these crimes as trespass. Platforms defend their territory with encryption, authentication, firewalls, terms of service, and other digital fences. Laws affirming online platforms as protectable property, alongside the platforms' own fortifications, clearly categorize them as "private property" under the Takings Clause.

Laws that mandate online platforms to accept certain content or users effectively invade private property. And the courts have established that when the government grants third parties access to private property without the owner's consent, that requires compensation. The federal government had to pay a private marina owner in Hawaii before it could be compelled to allow public boating access. Similarly, the Supreme Court ruled just a few years ago that California had to compensate employers after it forced them to let union representatives access their property.

These precedents apply to content moderation laws like those currently challenged on First Amendment grounds. Texas's law, which prohibits "censor[ing] a user, a user's expression, or a user's ability to receive the expression of another" based on viewpoint, does to digital spaces what unlawful regulations do to physical spacesit negates the platform's right to determine its occupants.

One might argue that digital exclusions aren't as tangible as physical ones. Yet imagine a law that mandates private businesses to display campaign signs in their storefront windows. This law would not just violate the businesses' speech rights; it would also clearly violate their property rights to control their own space.

Supporters of regulating social media might point to the Supreme Court's decision in Pruneyard Shopping Center v. Robins, where the Court rejected a takings claim by a shopping mall forced to allow activists to distribute leaflets. The Court reasoned that a few activists wouldn't significantly disrupt a mall's essential purpose. The Court recently indicated that Pruneyard was an exceptional case because shopping malls are "generally open to the public" and lack the kind of terms of service that govern social media platforms.

Pruneyard was wrong to deny shopping malls the right to exclude, but, regardless of that decision, online platforms are not public malls. The core function of a shopping mall is to invite the public to shop. The essence of social media is speech and content. Interference with a platform's ability to control content affects its core purpose. Even owners of traditional public spaces can exclude activities that contradict their business's purpose. Social media platforms should be afforded similar rights under property law.

A win under the Takings Clause would mean that the government cannot require social media platforms to host all content unless they pay for the privilege. Compensation could be hard to calculate, given that the interference is ongoing and the economic effects are complex. Whatever the dollar amount, politicians will struggle to convince taxpayers to commit to a continuous cash funnel from their pockets to Big Tech. A win under the Takings Clause would likely make many regulators rethink their strategies.

As the early abolitionist Arthur Lee once said, property is the "guardian of every other right." Property offers a personal dominion free from undue influence or controlspaces we can each shape to reflect our own values. In defending this for online platforms, we uphold the foundation of liberty and innovation.

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Social Media Platforms Have Property Rights Too - Reason

The Utah Supreme Court ruled Thursday in favor of a defendant who had argued police could not force him to provide the passcode to his phone in order to aid their prosecution.

The states highest court concluded that cell phone passcodes are protected under the Fifth Amendment, which gives Americans the right not to self-incriminate under oath.

The defendant, Alfonso Margo Valdez, had been accused of kidnapping, assaulting and robbing his ex-girlfriend and was initially convicted for the crime.

Subsequently an appellate court ruled that having determined that Valdezs refusal to provide his passcode was protected by the Fifth Amendment the States commentary at trial on Valdezs refusal was a Fifth Amendment violation, according to a characterization from the justices.

The state Supreme Court upheld that ruling, sending the case back to the district court.

Some legal scholars believe Thursdays decision could pave the way to a U.S. Supreme Court case.

UC Berkeley School of Law Professor Orin Kerr posted on social media about the ruling soon afterward, predicting possible U.S. Supreme Court review.

The issue has been controversial with courts splitting nationwide. High courts in Indiana and Pennsylvania previously came to a similar decision as the Utah justices, ruling that compelling defendants to unlock their phone violates their right against self-incrimination. However, New Jersey, Massachusetts and Illinois rulings have held the opposite.

Valdez was convicted in his initial trial, but appealed on the grounds that his phones passcode was constitutionally protected. The appellate court sided with Valdez, saying that supplying the passcode would have been incriminating because it has long been settled that the Fifth Amendments self-incrimination protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence.

The state Supreme Court backed that argument.

Civil rights groups filed an amicus brief in the case, arguing that the State cannot compel a suspect to recall and share information that exists only in his mind.

The realities of the digital age only magnify the concerns that animate the Fifth Amendments protections, the brief said. In accordance with these principles, the Court of Appeals held that communicating a memorized passcode is testimonial, and thus the States use at trial of Mr. Valdezs refusal to do so violated his privilege against self-incrimination.

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Suzanne Smalley is a reporter covering privacy, disinformation and cybersecurity policy for The Record. She was previously a cybersecurity reporter at CyberScoop and Reuters. Earlier in her career Suzanne covered the Boston Police Department for the Boston Globe and two presidential campaign cycles for Newsweek. She lives in Washington with her husband and three children.

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Utah high court rules suspects don't have to provide police with phone passcodes - The Record from Recorded Future News

(Francisco Kjolseth | The Salt Lake Tribune) Utah Supreme Court Justice Paige Petersen asks a question during oral arguments at the Utah Supreme Court in Salt Lake City, Tuesday, Aug. 8, 2023. On Thursday, justices decided that individuals do not need to share their cellphone passcodes with police.

| Dec. 15, 2023, 1:00 p.m.

| Updated: 8:35 p.m.

If police obtain a warrant to search your cellphone, are you required to tell law enforcement the password to access it?

The Utah Supreme Court ruled on Thursday that under the U.S. Constitutions Fifth Amendment protection against self-incrimination, you dont have to help law enforcement access your devices, even if they have a judges permission to do so.

Nearly two years after the court first heard arguments in the case, with attorneys rehashing those arguments in March after two new justices joined the bench, the court agreed with the Utah Court of Appeals 2021 decision to reverse a conviction in an aggravated assault, kidnapping and robbery case.

When Alfonso Valdez was arrested for allegedly kidnapping and assaulting his ex-girlfriend, police took his cell phone from his pocket, according to court records. Detectives got a warrant, but could not crack the swipe code to sift through the phones contents.

An officer asked Valdez to help unlock the phone, but he refused, keeping law enforcement from ever accessing it.

Prosecutors later relied on testimony from a detective about Valdezs decision not to cooperate with police, and when giving closing arguments, argued that the resulting lack of evidence undermined his defense. A jury convicted Valdez, and he appealed.

The states two highest courts reasoned that Valdez agreeing to tell law enforcement his password could have amounted to self-incrimination, and he had a constitutional right not to do so.

We agree with the court of appeals that verbally providing a cellphone passcode is a testimonial communication under the Fifth Amendment, Justice Paige Petersen wrote in the decision. All justices on the court joined the opinion except former appeals court judge Justice Jill Pohlman, who recused herself and was replaced by District Court Judge John Walton.

During arguments in front of the Utah Supreme Court, attorneys for the state asserted that Valdezs refusal to share his swipe code was not protected under the Fifth Amendment because they said it could be compared to providing officers with a key, and was not semantic in nature.

Building off of that contention, the state said a passcode wouldnt have given police any meaningful information, except what they already knew the phone belonged to Valdez.

But the court dismissed those points in its decision, with Petersen writing, Here, we have a verbal communication that would have explicitly communicated information from Valdezs mind.

A spokesperson for the Utah Attorney Generals office said in an email, The office is disappointed in the courts ruling and is evaluating options for further review.

Attorneys representing Valdez did not immediately respond to a request for comment.

While the Utah Supreme Court has the final say on matters related to the state constitution, this decision could be appealed to the U.S. Supreme Court because of its focus on a right enshrined in the federal constitution. The high court would then determine whether it wants to hear the case.

Matthew Tokson, a law professor at the University of Utah whose work focuses on privacy and judicial decision-making, said the ruling helps to preserve Utahns privacy in their cellphones against government investigations. Whatever is in your cell phone, if its sufficiently protected by your passcode, is likely to be safe from inspection, and your refusal to open your cellphone for inspection cant be held against you.

Similar Fifth Amendment reasoning likely wouldnt apply to other phone access technologies, like Face ID or Touch ID. Tokson said for that reason, he has personally opted not to sign into his devices with biometric identifiers.

He added, however, that such a precedent may make criminal investigations more difficult by preventing the government from accessing pertinent information, even with probable cause and a warrant.

In the future, case law surrounding the Fifth Amendment and law enforcements technology use, Tokson noted, could impact questions that may arise as artificial intelligence becomes more sophisticated in reading emotions, for example and widely used.

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Utah Supreme Court says accused don't have to share cellphone passwords with police - Salt Lake Tribune

This is a story about a rather unassuming 32-inch high concrete retaining wall in southeast Texas.

The wall is the creation of the Texas Department of Transportation. As part of updating I-10, an east-west federal highway between Houston and Beaumont, TxDOT had an idea. An awful idea.

A wonderful, AWFUL idea.

Those Texas grinchy geniuses wanted to ensure emergency vehicles could drive on I-10 should the countryside flood. And so they raised the height of I-10 by 18 inches and built a 32-inch high concrete barrier smack dab down the middle of the road so that eastbound lanes remained navigable should disaster strike.

Where I come from we call that a dam.

And of course Mother Nature put the dam to the test. Hello Hurricane Harvey. The Category 4 hurricane made landfall on Aug. 25, 2017, deluging a 20-mile stretch from Winnie to the Trinity River. On the eastbound side of the I-10 concrete barrier, vehicles went zippity-do-da hither and yon.

On the west side of the barrier a lake emerged running as far as three miles north of I-10. In short, the concrete barrier worked exactly as TxDOT intended and designed.

Except located in that Hurricane Harvey manmade floodplain were houses and farms. Doh! Which begs the question: What in blue blazes was Texas thinking?

Among those people whose houses were flooded is Richie Devillier. His home and 900-acre farm were destroyed by floods thanks to the I-10 dam. Devillier was digging his way out of that mess when, in a cant-believe-its-happening-again moment, Tropical Storm Imeldas September 2019 arrival flooded Devilliers farm a second time. Crops destroyed. Dead cattle. Twenty-three inches of water.

Reasonably, Devillier asked the state of Texas for financial relief. And how much did Devillier receive? Not. One. Red. Cent. Bupkis. Its your farm. You pay for it.

Tired of the run-around from Texas bureaucrats, Devillier sued in state court under the Fifth Amendment to the Constitution, claiming Texas barrier was designed to serve as a retaining wall to store storm water on his private property without consent or compensation.

Make no mistake about it. Devillier had a case that Texas was very likely to lose at least as long as the case remained in state court. But just days after Devillier filed his lawsuit, the state of Texas submitted their own petition asking the case be moved from state to federal courts.

Excuse me while we get a little deep into the weeds here regarding the Fifth Amendment. A number of appellate courts have ruled that the Fifth Amendment is self-executing. Thats to say a property owner can sue a state directly for taking of property in violation of the Fifth Amendment. No controlling law is required.

By moving the case from state to federal court, Texas is attempting to change the rules. In federal court, takings lawsuits are controlled by 42 U.S.C. 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officers judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Texas is attempting to game the system. Texas argued it is not a person. Thus Devillier cant bring a claim under Section 1983. Its a classic catch-22.

United States magistrate Judge Andrew M. Edison was tasked with making recommendations to the federal district court and saw through the Texas fairy dust:

This thinking eviscerates hundreds of years of Constitutional law in one fell swoop, and flies in the face of commonsense. It is pretzel logic. There is not, as the State suggests, some sort of state exception that excludes state governments from the reach of the Fifth Amendments Takings Clause. The complete opposite is true.

The federal district court by and large adopted Edisons thinking and denied Texass motion, ruling private property shall not be taken for public use without just compensation.

But then Texas appealed and the Fifth Circuit reversed the lower court, ruling Texas indeed wasnt a person and, thus, there was no federal cause of action to sue for takings. In other words, inverse condemnation claims cannot proceed directly under the Fifth Amendment in the absence of a Section 1983 course of action.

Now the whole mess has ended up in the lap of the U.S. Supreme Court, which has agreed to take up the case.

The case has huge implications. Hands up for those in favor of having their property taken without just compensation. Someone? Anyone? I think not.

The Fifth Circuit has it wrong, wrong, wrong. The Fifth Amendment does indeed create a direct cause of action. The right to just compensation is right there in the takings clause. The high court need not do more than summarily reverse the Fifth Circuit and uphold the district court.

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Opinion Advocates for ideas and draws conclusions based on the author/producers interpretation of facts and data.

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High court must uphold constitutional taking clause to protect ... - The Midwest Center for Investigative Reporting

Recently unsealed documents reveal that Jump Crypto president Kanav Kariya pled the Fifth when asked about an alleged backdoor bribe made with Terraform Labs founder Do Kwon back in 2021, in an attempt to re-peg stablecoin TerraUSD (UST).

According to the SEC, Kariya and now-imprisoned Kwon agreed in May 2021 that Jump Crypto would manipulate the price of UST in exchange for amendments to the terms of Jumps LUNA loan agreement. In February, sources familiar with the case told reporters that Jump Crypto made $1.28 billion dollars in profit from Kwons now-decimated crypto empire.

And when you asked Do Kwon to lift the vesting conditions in exchange for Jumps agreement to buy up UST to restore the peg, Do Kwon agreed to that, correct? SEC counsel Devon Staren asked Kariya in court on August 18.

On the instruction of counsel I exercise my rights under the Fifth Amendment and decline to answer the question at this time, Kariya replied (via Blockworks). The Jump Crypto president pled the Fifth a total of nine times, according to his recently unsealed deposition.

Read more: Jump Crypto profited from Terra Luna as investors lost billions

The SECs ongoing case against Kwon and Terraform Labs alleges that they violated securities laws and defrauded investors. Both the SEC and the defense have filed for summary judgement while Kwons lawyers believe the case should forego a trial by jury because the SEC has failed to prove its clients broke the law, the commission has asked for swift judgement because the alleged fraud and sale of securities is clear, undisputed, and overwhelming.

Kariya was deposed at the end of August for his alleged involvement. Kwon was a fugitive until his arrest in Montenegro, where he is currently serving time in prison after local courts found him guilty of document forgery. He awaits extradition.

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Jump Crypto chief pled Fifth over alleged backroom Do Kwon deal - Protos