Facebook’s E-mail Censorship is Legally Dubious, Experts Say

Via Wired.com -

When The Pirate Bay released new Facebook features last month, the popular social networking site took evasive action, blocking its members from distributing file-sharing links through its service.

Now legal experts say Facebook may have gone too far, blocking not only links to torrents published publicly on member profile pages, but also examining private messages that might contain them, and blocking those as well.

“This raises serious questions about whether Facebook is in compliance with federal wiretapping law,” said Kevin Bankston, a lawyer with the Electronic Frontier Foundation, responding to questions from a reporter about the little-noticed policy that was first reported by TorrentFreak.

Facebook private messages are governed by the Electronic Communications Privacy Act, which forbids communications providers from intercepting user messages, barring limited exceptions for security and valid legal orders.

While the sniffing of e-mails is not unknown — it’s how Google serves up targeted ads in Gmail and how Yahoo filters out viruses, for example — the notion that a legitimate e-mail would be not be delivered based on its content is extraordinary.

Facebook chief privacy officer Chris Kelly acknowledged that the site censors user messages based on links. But he insisted that Facebook has the legal right to do so, because it tells users they cannot “disseminate spammy, illegal, threatening or harassing content.”

“Just as many e-mail services do scanning to divert or block spam, prevent fraudulent, unlawful or abusive use of the service — or in the case of some services, to deliver targeted advertising — Facebook has automated systems that have the capability to block links,” Kelly said in an e-mail. “ECPA expressly allows Facebook to operate these systems.”

“The same automated system that blocks these links may also be deployed where there is a demonstrated disregard for intellectual property rights,” he added.

Facebook declined to answer questions about whether it similarly searched private messages for references to illegal drugs, underage drinking or shoplifting.

EFF lawyers suggested that the legality of Facebook’s censorship turns on Facebook’s Terms of Service, how and when the blocking takes place, and whether the messaging system affects interstate commerce (thus giving the federal government jurisdiction).

It’s not clear, however, how links to torrents are spammy, harassing or illegal. Torrents themselves are not copyright-infringing, nor would Facebook be liable for their users’ communications under federal law even if the files were infringing.

Wired.com confirmed Facebook is blocking private messages by sending a link to a Pirate Bay torrent feed of a book in the public domain. Such content is freely available to everyone, as all copyrights have expired. Nevertheless, the message bounced twice, returning the following failure notice: “This Message Contains Blocked Content. Some content in this message has been reported as abusive by Facebook users.” (Facebook’s link-censoring system is may be just tilting at windmills, however, because removing a single vowel from the domain name lets the URL go through.)

In the case of Wired.com’s test, there were only two Facebook users who should have been aware of the content — Wired.com editor John C. Abell and his message’s intended recipient, who was sitting five feet from him — and neither had the slightest objection to it whatsoever.

The EFF’s Bankston suggests that the real answer to the legal confusion over what providers can and cannot do with users’ online communications needs to come from federal lawmakers, who authored the statutes about e-mail privacy in the 1980s when the technology was much different.

“It is often unclear whether or how these Web 2.0 companies are covered by federal electronic privacy statutes, and that’s why Congress needs to update and revisit the law,” he said.