Filters and Links
Wired.com today published an article calling into question the legality of Facebook’s new policy of filtering links to the Pirate Bay. Citing EFF lawyers, the article claims that Facebook is violating the Electronic Communications Privacy Act (ECPA, 18 U.S.C. § 2510 et seq.) by filtering these links. While there is little wisdom in doing so, nothing about Facebook’s new policy violates the law.
At issue is whether or not Facebook is illegally “intercepting” electronically communications. Ordinarily, internet service providers are exempted from the ECPA through the “ordinary course of business exception.” Hall v. Earthlink Network, Inc., 396 F.3d 500, 504 (2nd. Cir. 2005). Under the exception, content obtained during the ordinary course of business is not, by definition, an interception of electronic communications.
Assuming that it qualifies as an ISP, messages that are processed without filtering by Facebook are clearly exempt. The courts have consistently held a very narrow interpretation of “intercept” under the act. See U.S. v. Councilman, 373 F.3d 197 (1st. Cir. 2004). Messages “in storage” are treated very differently from messages “in transmission.” See Steve Jackson Games, Inc. v. U.S. Secret Service, 36 F.3d 457 (5th. Cir. 1994). The ECPA focuses on how the information is obtained, not how the information is used.
Facebook is unlikely to face any legitimate legal challenge from this policy. The purpose of the ECPA is to prohibit unauthorized interception of communications. Spam filter technology, analyzes the content of an email message when determining whether or not to allow a message. Google scans the content of email for the purpose of serving advertisements. These are authorized uses of the communications and not subject to the ECPA.
What is clear, and has been clear for quite some time, is that the law as written is not suited to deal with the current generation of internet technology. As noted by the court in Konop v. Hawaiian Airlines, Inc., “until Congress brings the laws in line with modern technology, protection of the Internet and [private websites] will remain a confusing and uncertain area of the law.” 302 F.3d 868, 874 (9th. Cir. 2002).
The Facebook terms of service give the company wide latitude to “remove any content you post on Facebook” if that content violates the site’s terms. §5.2. However, the terms are silent as to the limits of Facebook’s power to filter or otherwise remove user content. Ultimately, this issue will revolve not around the ECPA but contract law, and under those principles, it will be hard plead damages.
Legal issues aside, Facebook has created another public relations nightmare for themselves by subjectively restricting user links. Facebook certainly has an interest in creating a safe and sanitary environment that appeals to all of its users. However, this policy and other similar company decisions, such as the prohibition on photos of breast-feeding mothers and the infamous Facebook Beacon fiasco, only serve to alienate the company’s user base and raise public ire.
