Facebook Privacy Changes Violate Basic Rights

fb-privacy-commentThere are many ways in which Facebook can be said to be innovative. It is a product of value to users across the world. And it deserves to make money from selling ads, as other media properties do. What it can never be allowed to do, however, is to seize control of your private information, your identity, your family relationships or your right to self-expression, without your consent, and then sell these for profit.

Yet that is exactly what Facebook is once again proposing to do. It is as if the managers of the social network have no other plan. Year after year, Facebook implements, without any advice or consent from users, radical changes to its privacy policy, which always seem to be some version of the idea that you have surrendered your information, content and identity to Facebook, so that Facebook can sell them.

Each time, there is a major outcry, and Facebook reverses course, partially or entirely. Each time, Facebook promises to honor user privacy, and not to do it again. And each time, Facebook makes yet another attempt to seize control of your personal content, information and even of your identity, in order to “monetize” one of the most successful media properties in world history.

That last part is important, because Facebook claims (falsely) that it has to do this in order to justify not charging users fees. The truth is, Facebook would not exist had it ever charged access fees, or if it did, it would be much much smaller, perhaps by 99% or more. And, most importantly, Facebook has what no other media property in world history has ever had: hundreds of millions of subscribers who spend significant amounts of time engaged with this particular media property, and who use it to share information.

That Facebook cannot adequately monetize this unprecedented asset is indicative of two things, fundamentally: 1) a lack of imagination, and 2) incredible greed. Facebook should not have had to go public in order to raise money to continue building its online empire. It went public to make overnight billionaires out of early investors. That is not a good enough reason to do away with the basic rights of its users.

To argue that such a successful media platform cannot simply make a living by selling ads and/or premium subscriptions, or by providing promotional services to other media properties or campaigns, defies comprehension. While it costs money to run servers, it cannot be said to cost more than would the massive production and distribution infrastructure required to operate a physical print publication with the same readership.

Also, Facebook has zero overhead for content creation. People read content generated by other users, who share this content voluntarily. They do this not to surrender their identities to Facebook to fund an overzealous public offering of stock, but because that sharing is mutually beneficial to Facebook and to the user: it draws more users to Facebook, and allows people to get something out of the experience.

Facebook cannot simply redefine the logic of that relationship, because it wants to seize ownership of something it did not create. And it cannot justify that seizure by arguing that digital content is not covered under federal copyright law. Since the Digital Millennium Copyright Act, copyright automatically accrues to any and all works produced by an individual, regardless of whether that individual seeks copyright protection or not.

The United States Copyright Office explains it like this:

Copyright protection subsists from the time the work is cre­ated in fixed form. The copyright in the work of authorship immediately becomes the property of the author who cre­ated the work. Only the author or those deriving their rights through the author can rightfully claim copyright.

Facebook’s entire function is to link content to people’s identities, so it would be more appropriate to say that it provides near automatic copyright proof and protection than that it should enjoy a near automatic power to appropriate what one creates or shares. Facebook cannot even make the shabbiest of copyright infringement arguments—that it could not determine to whom the content belongs—because it is specifically structured to do just that.

There is a reason Facebook keeps surprising its users with these radical violations of basic privacy protections: because not one of its users would, in their right mind, agree to what Facebook is demanding. Facebook claims that it will both protect your privacy and also sell your likeness, creative work, family events and private data, for its own profit. It is fair to say that any judge would have to find reasonable the argument that users have volunteered their information to Facebook only and in every case with the specific expectation that such actions would never be allowed.

What’s more, there is something deeply insidious about the logic of what Facebook is alleging: it seems to be arguing that it is designed to appropriate your content, your data and your identity. Yet its entire way of interacting with customers purports to be virtually the opposite. There is a lure dynamic at work that suggests Facebook attempts to placate concerns about online privacy, with the specific intent to pirate personal content and data, for profit.

Given past guarantees that it would not do this, it would be hard to argue that this lure dynamic is not actively at work, and that alone would suggest that Facebook could never be allowed to subject its users to such treatment. Beyond that, the social network has made agreements with regulators that require it to refrain from precisely that kind of unilateral content expropriation. In fact, in 2011, an FTC settlement imposed on Facebook regular privacy policy audits for a term of 20 years, due to the scope of its privacy violations.

A coalition of privacy advocacy groups is asking the Federal Trade Commission to bar Facebook from implementing this policy change. According to the New York Times:

A coalition of six major consumer privacy groups has asked the Federal Trade Commission to block coming changes to Facebook’s privacy policies that they say would make it easier for the social network to use personal data about its users, including children under 18, in advertising on the site.

In a letter sent to the agency late Wednesday, the coalition said Facebook’s changes, scheduled to go into effect later this week, violate a 2011 order and settlement with the F.T.C. over user privacy.

“Facebook users who reasonably believed that their images and content would not be used for commercial purposes without their consent will now find their pictures showing up on the pages of their friends endorsing the products of Facebook’s advertisers,” the letter says. “Remarkably, their images could even be used by Facebook to endorse products that the user does not like or even use.”

The American Society of Media Photographers issued this alert, with a convenient Q&A. Facebook’s proposed policy change could do a lot more than violate users’ privacy rights or federal copyright provisions. It could, if allowed to go forward, overthrow much of the freelance and professional media production market which allows for something like a free press to exist.

While not a guarantee against Facebook’s proposed intrusion, anyone concerned about potential damage to their professional production is encouraged to mark any and every item posted on Facebook with a standard copyright or Creative Commons license notification. The following are standard examples:

  • Copyright © 2013 Full Name
  • CC License: Non-commercial Attribution ShareAlike – Full Name

It is also possible to add “All Rights Reserved”, for added specificity and scope.

At present, Facebook’s proposed policy changes threaten the very concept of a secure open network of shared content which has made Facebook such a worldwide success. And that could have a significant chilling effect on the very kind of online engagement that makes sites like Facebook viable in the first place. Investors may now start to wonder whether Facebook’s managers have any serious plan for long-term commercial solvency, or whether the global clout of hundreds of millions of subscribers is being squandered.

New proposed lending practices even suggest that Facebook’s failure to assist users in protecting personal data is leading lenders to require access to users’ accounts in order to data mine for connections, likes and habits that might suggest a poor credit risk, even where a user’s credit score is respectable or high.

The best course of action for all Facebook users, at the moment, is to get educated about the proposed changes, get educated about basic privacy protections guaranteed by law, and by regulation, and spread the word across Facebook that they oppose this expropriation of their private content and data production.

UPDATE: Thurs., Sep. 5, 2013: After tens of thousands of user comments objecting to the proposed changes, and a petition from privacy groups to the FTC to intervene to block the changes, Facebook has reportedly decided to delay the changes, pending further review. According to the New York Times’ Bits blog:

Facebook has apparently decided to delay a proposed new privacy policy after a coalition of privacy groups asked the Federal Trade Commission on Wednesday to block the changes on the grounds that they violated a 2011 settlement with the regulatory agency.

A spokeswoman for the F.T.C. confirmed Thursday that the agency had received the letter but had no further comment.

In a statement published by The Los Angeles Times and Politico on Thursday afternoon, Facebook said, “We are taking the time to ensure that user comments are reviewed and taken into consideration to determine whether further updates are necessary and we expect to finalize the process in the coming week.”

Users may continue to post comments to the policy directly to Facebook here.

> A Little History

The following are a list of articles (some linked in the text above) that show the history of this pattern, year after year:

And, prior to the recent content and rights grab, Techlicious offered the following, which will need to be significantly revised, if the new policy goes ahead:


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