[governance] [Fwd: Facebook is blocking private e-mails between users that contain links to PirateBay]

[Parminder]

http://twit-o-matic.com/icontent/iframe.html?tmurl=http://feeds.wired.com/~r/wiredbusinessblog/~3/uMtBYD1iyyI/

Epicenter The Business of Tech <http://www.wired.com/epicenter>


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

    * By Ryan Singel Email Author <mailto:ryan at ryansingel.net>
    * May 6, 2009  | 
    * 5:20 pm  | 
    * Categories: Social Media
      <http://www.wired.com/epicenter/category/social-media/>

facebook_piratebayWhen 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 
<http://torrentfreak.com/facebook-blocks-all-pirate-bay-links-090408/>.

Facebook private messages are governed by the Electronic Communications 
Privacy Act 
<http://en.wikipedia.org/wiki/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 
<http://thepiratebay.org/torrent/4864059/Don_Quixote_Ebook>. 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.

/Additional reporting and writing by John C. Abell. This story was 
edited for style Wednesday afternoon./


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