Out-Law / Your Daily Need-To-Know

Facebook lawsuit will criminalise its own users, says EFF

Out-Law News | 05 May 2010 | 5:16 pm | 3 min. read

Facebook is in danger of criminalising many of its users and trampling on their rights to access their information in the way they choose, according to a digital rights advocacy body.

Facebook is suing Power Ventures, which operates social media aggregator Power.com. That site's users can tell it to access all their social networking profiles and deliver them at one time.

The social networking giant claims that Power.com violates its terms and conditions and infringes its copyright when it allows users to access Facebook material through it. Those terms forbid the use of automated log-in systems.

The suit also makes a criminal claim against Power Ventures. It says that by using login details to copy and redisplay a user's Facebook content, Power is committing a crime.

"[Power] knowingly accessed and without permission used Facebook data, computers, computer systems and/or computer network in order to devise and/or execute a scheme to defraud and deceive in violation of [the] California Penal Code," said its 2008 law suit. "[Power] knowingly accessed and without permission took, copied, and/or used data from Facebook's computers, computer systems and/or computer network in violation of [the] Code."

Digital rights advocacy group the Electronic Frontier Foundation (EFF) has lodged papers with the court hearing the case arguing that Facebook's actions would criminalise users.

"California's computer crime law is aimed at penalizing computer trespassers," said EFF civil liberties director Jennifer Granick. "Users who choose to give their usernames and passwords to aggregators like Power Ventures are not trespassing. Under Facebook's theory, millions of Californians who disregard or don't read terms of service on the websites they visit could face criminal liability. Also, any Internet company could use this argument as a hammer to prevent its users from easily leaving the service as well as to shut down innovators and competitors."

The EFF argued in its court submission that it was not reasonable to make a criminal conviction based on the contents of a private agreement, such as a website's terms and conditions.

"Facebook argues that by offering these enhanced services to users, Power violated California’s computer crime law. It grounds its claim in the fact that Facebook’s terms of service prohibit a user from having automated access to a user’s own information and that Power continued to offer the service to Facebook users even after Facebook sent Power a cease and desist letter demanding that it stop," said the brief. "Yet merely providing a technology to assist a user in accessing his or her own data in a novel manner cannot and should not form the basis for criminal liability."

"To hold otherwise, as Facebook asks this court to do, will create a massive expansion of the scope of California criminal law, hinging liability on arbitrary and often confusing terms chosen by private parties in the contracts of adhesion they present to users," it said. "This creates both legal uncertainty and the risk of capricious enforcement. It will also hobble user choice and interfere with follow-on innovation, in part by creating a barrier to Facebook users who wish to move their data from Facebook to a competing service."

"While users who choose services such as Power’s may breach Facebook’s terms of use (if those terms are otherwise enforceable), breaches of these sorts of private contracts should not be turned into criminal conduct," it said. "Allowing a private party to define criminal conduct puts far too much power in the hands of business entities that are not necessarily acting in the public interest."

The EFF said that Facebook's motives in the action were led by profit and not by a desire to stop personal information being used outside of Facebook's systems.

"Through changes to its terms of service and the functionality of its Application Programming Interface or API, through which third parties can see Facebook user’s information and activities, Facebook now offers to certain third parties and advertisers as much information about any particular user and his or her friends as that user themselves could access using Power’s service," it said.

"Thus, by continuing to press for Power to be liable under criminal law, Facebook’s actions appear to be aimed not at protecting users from the sharing of their information, but at ensuring their own control (and the corresponding ability to monetize) user information, even against the users themselves," it said.

The EFF said that if users were allowed to access their own information, which they are, then the tool that they use to access it should not be relevant. The criminal law, it said, was designed to stop people accessing information that they had no right to see or use.

It also said that logic dictated that if Power committed a criminal offence in the process, then Facebook's users must have committed a criminal offence as well.

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