The National Law Journal reports on an interesting position by the Deputy General Counsel of Facebook:
Facebook’s legal department is ready for a fight. Almost every day, law enforcement officials and civil litigators request information from a user’s Facebook account, Deputy General Counsel Mark Howitson told several hundred lawyers in a packed ballroom during his keynote address Tuesday morning at LegalTech New York. But he is still waiting for a case on Facebook’s policies to go before a federal judge to define exactly what content on Facebook is protected so that it’s clearer to everyone. There’s some public misunderstanding about what Facebook’s legal responsibilities are to protect user’s privacy, he said. “We don’t want to have to deal with these requests.”The hugely popular social networking site is loath to hand over any information on its 350 million users without a subpoena, and even then the company will only provide basic subscriber information unless that user gives his or her consent, Howitson says. The Electronic Communications Privacy Act, which requires the subpoenas and currently determines Facebook’s legal policies, was passed in 1986, long before the advent of online social networking, let alone the smartphones through which many users access Facebook. A federal hearing could help clear up some of the confusion. “We’re itching for that fight,” he said.
I’ve heard this from the Facebook General Counsel’s Office’s before, and I can’t tell how much of their shtick is (a) a calculation that being seen as pro-privacy is good for business versus (b) a general frustration that their business model requires them to be governed by a complicated federal privacy law. Either way, stay tuned.
dfb says:
Knowing the guys over at Facebook, it is all PR-schtick. They’ll ride this until the minute they get a valid, legal request. It is on par with Google fighting the search engine request a few years ago with regard to the spawn of CDA. In the press, Google made a big stink about privacy but it was all about business intelligence in court motions and proceedings (not a lick about privacy).
That is not to say that ECPA is not horribly outdated and ready for a company with deep pockets and a real claim (i.e. MSFT or Google) to take on behalf of its user base to force Congress to make the law current and address the cloud. At this point, it is B.S. to say people do not have a reasonable expectation of privacy in email or other data held on the cloud or that a search warrant should not be required by third parties holding certain types of data.
February 3, 2010, 12:48 amTim says:
I imagine (a) is closer to their position than (b). The reason Facebook has grown much faster than Myspace in recent years is that people view it as a more private type of website than Myspace ever was.
February 3, 2010, 1:27 amAvatar says:
Why not (c), responding to law enforcement requests is time-consuming and expensive, and it’s in Facebook’s interests to raise the standard under which they are compelled to act as high as humanly possible?
Not that (b) isn’t also a perfectly valid reason. If law enforcement comes to them and says, “We are conducting an investigation of Person A, and we want everything in Person A’s Facebook account, hand it over,” it’s not as simple as pressing the “produce Person A’s personal information” button. What’s Facebook’s liability if law enforcement asks for the wrong account? Or if they ask for the right account, but Facebook grabs the wrong one by mistake? Or if the correct account is produced, but it was mistakenly requested in the belief that Person A was, in fact, Person B? If the account’s registered to “Puddin’ Tame”, what are the privacy implications there? What is Facebook obliged to provide, anyway? Name and address? A copy of all the user’s postings? Of all their comments? Of their high scores? Hours spent playing Farmville? All marketing information they’ve ever had on the user? Or is it just “whatever they ask for”?
Facebook wants to insist on subpoenas because it will cut down hugely on the number of fishing expeditions that officers will indulge in. And even with a subpoena, they’re going to want to comply with the minimum amount of effort and information possible, because that’s cheaper and easier (and if they’re successful at establishing that as the legal standard for what they’re obliged to keep track of, they don’t have to be worried about being sued for having “destroyed information relevant to an investigation” because their backup servers were getting full.)
Our forensics guy at work reports that traditional e-discovery web capture software has a hell of a time archiving Facebook information, because they’re so link-rich. Usually web-cap software takes a main page, requests that page, all the images, then starts going through it and going to every link offered, capturing every link from those pages, etc, etc. Even with techniques to prevent the site from spidering all the way to Kevin Bacon, even a modestly-populated page can consist of several thousand individual image links, comments, sub-pages, and so on. Tons of poorly-organized crap to wade through, and a lot of it unnecessary.
February 3, 2010, 3:32 amAnderson says:
The stuff is evidentiary candy much of the time. Like the premises-liability plaintiff who claimed to be so emotionally devastated by her rape, that she couldn’t have relationships and was unable even to think about sex. That was not borne out by the internet.
February 3, 2010, 7:43 amguest890 says:
Facebook is built upon the premise of collecting as much information about people as possible, often through sketchy and deceptive means. Even if they don’t hand it over to law enforcement, they are not “pro-privacy” by any stretch of the imagination. (I don’t use Facebook because they have repeatedly demonstrated that with respect to privacy they are either incompetent, malicious, or both; the Beacon fiasco is only one of the more egregious examples.)
I’m inclined to think the answer is some combination of (a) and Avatar’s (c). It’s easier for them if they don’t have to respond to these requests, and if it tricks some people into thinking they’re sticking up for user privacy, that’s to their advantage as well.
February 3, 2010, 8:50 ampedro says:
Facebook’s policy is disingenuous. If you read their TOS and privacy policy it is pretty clear that they are more interested in hoarding data then user privacy. I’m working on a book on social networking and privacy rights. The law has been too slow in this area.
-P
February 3, 2010, 10:01 amhttp://www.whoneedslawyers.com
LarryA says:
How about (d) If we hand over someone’s information and they get nailed, they’re a lot more likely to sue Facebook than the government agency we gave it to. We want some legal cover.
February 3, 2010, 2:41 pmFurshlugginer says:
Facebook may just want the liability shield that banks get from the (misnamed) Bank Secrecy Act.
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February 28, 2010, 2:57 pmCalandra says:
Other than the speed problems, I can’t really complain much about twitter.
March 21, 2010, 4:26 pmCasey Messamore says:
You know that there are some website out there that let you view private facebook profiles.
May 21, 2010, 12:47 pmThe Closing of the Internet Frontier? | theConstitutional.org says:
[...] Online, we are in the midst of the same transition from lawless frontier to integration with society. It has become routine to talk about government regulation of the Internet—ranging from “net neutrality” to Facebook privacy. [...]
June 7, 2010, 10:39 pmJane is an Asian Model says:
Twitter is slow and usually down! ARgh!!
June 15, 2010, 12:49 pmFarmville Bot says:
Farmville does consume huge amount of time (my spouse plays it when she is bored), but you can get ahead promptly if you build up a network of other farmers, then that sheep would be granted a giveaway from one to another. The game is well sustained, cause it always gets new stuff in it. New inventory, new gifting technic, etc. That’s what make the crowd in and still flowing. I think it’s popularity is based merely on marketing, and the effective use of Adobe Flash for a pleasant beautiful interface – that’s what most games don’t have. Me? I find it more fun to consume my time of boredom and laziness enjoying games from y8 and armorgames (bubble tanks tower defense, gemcraft, sonny, mastermind and other speedy games you can save progress in)
August 6, 2010, 6:01 am