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<div> <a moz-do-not-send="true" id="blog_header"
href="http://www.wired.com/epicenter"> <span class="blogName">Epicenter</span>
<span class="blogInfo">The Business
of Tech</span> </a> </div>
<h1>Facebook’s E-mail Censorship is Legally Dubious, Experts Say</h1>
<div class="entryDescription">
<ul>
<li class="entryAuthor"> By Ryan Singel <a moz-do-not-send="true"
href="mailto:ryan@ryansingel.net"> <img
src="cid:part1.07080700.05050108@itforchange.net" alt="Email Author"
border="0" height="11" width="14"> </a> </li>
<li class="entryDate"> May 6, 2009 | </li>
<li class="entryTime"> 5:20 pm | </li>
<li class="entryCategories"> Categories: <a moz-do-not-send="true"
href="http://www.wired.com/epicenter/category/social-media/"
title="View all posts in Social Media" rel="category tag">Social Media</a>
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<p><img class="aligncenter size-full wp-image-4617"
title="facebook_piratebay"
src="cid:part2.08030706.01090501@itforchange.net"
alt="facebook_piratebay" height="698" width="660">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.</p>
<p>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.</p>
<p>“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 <a
moz-do-not-send="true"
href="http://torrentfreak.com/facebook-blocks-all-pirate-bay-links-090408/">TorrentFreak</a>.</p>
<p>Facebook private messages are governed by the <a
moz-do-not-send="true"
href="http://en.wikipedia.org/wiki/Electronic_Communications_Privacy_Act">Electronic
Communications Privacy Act</a>,
which forbids communications providers from intercepting user messages,
barring limited exceptions for security and valid legal orders.</p>
<p>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.</p>
<p>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.”</p>
<p>“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.”</p>
<p>“The same automated system that blocks these links may also be
deployed where there is a demonstrated disregard for intellectual
property rights,” he added.</p>
<p>Facebook declined to answer questions about whether it similarly
searched private messages for references to illegal drugs, underage
drinking or shoplifting.</p>
<p>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).</p>
<p>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.</p>
<p>Wired.com confirmed Facebook is blocking private messages by sending
a link to a Pirate Bay <a moz-do-not-send="true"
href="http://thepiratebay.org/torrent/4864059/Don_Quixote_Ebook">torrent
feed of a book in the public domain</a>.
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.)</p>
<p>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.</p>
<p>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.</p>
<p>“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.</p>
<p><em>Additional reporting and writing by John C. Abell. This story
was edited for style Wednesday afternoon.</em></p>
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