The Complaint Almost Filed Against Facebook

Even after bloggers and consumer rights groups kicked up a cloud of suspicion around changes Facebook quietly made to its service agreement in weeks prior, the social networking site didn’t back down. Instead, CEO Mark Zuckerberg stuck up for these changes on the company’s blog.

But a day later, on Feb. 17, word that Washington-based consumer watchdog Electronic Privacy Information Center (EPIC) was preparing to file a formal complaint to the Federal Trade Commission sent Facebook scrambling to the defense. Representatives from the company called up numerous privacy experts for advice, including EPIC executive director Marc Rotenberg. What Facebook wanted to know, according to Rotenberg: if they reverted to their old terms of use, would EPIC drop the FTC complaint? Sure thing, Rotenberg said.

As PC World reported, EPIC’s compliance appears to have heavily influenced Facebook’s stance. On Feb. 18, the company dropped the new terms, and EPIC dropped its complaint. But what was EPIC prepared to tell the FTC?

BusinessWeek has obtained excerpts from a draft of EPIC’s complaint that shed light on the beef privacy experts had with the changes to Facebook’s terms of service (in addition to EPIC, the draft was signed by the Center for Digital Democracy, PIRG, Patient Privacy Rights, and others). EPIC took issue with widely criticized changes that, in effect, gave Facebook rights to your content even after you stop using the site. But the group also faulted another move, which got considerably less attention, but that may also undermine a user’s privacy. Specifically, the removal of this line:

When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site.

By removing this line, EPIC believes Facebook may have been trying to open the door for other uses of these archived “copies” of information. According to Rotenberg, one such use could be to allow users’ status messages to be reproduced on other sites through its Facebook Connect service. The draft of EPIC’s complaint makes explicit reference of the site’s Application Program Interface, or API, which is the means by which Facebook Connect partner sites can send information to and from the social networking site.

Still, the document states that the terms were changed “prior to” the decision to launch Facebook Connect, which is inaccurate, as Facebook spokesperson Barry Schnitt points out: “We had Facebook Connect partners months ago and we’ve had APIs for years,” Schnitt says. He asserts that the purpose of changing the site’s terms of use was “not to give us new rights or open new business possibilities.”

The draft introduction and conclusion of EPIC’s complaint, which was never filed to the FTC:

Complaint and Request for Injunction, Request for Investigation and for Other Relief

INTRODUCTION This complaint concerns several material changes in the Terms of Service for Facebook, the largest social network service in the United States, which adversely impacts Facebook customers, eviscerates privacy rights recognized in most states in the U.S., increases the risk of identity theft, and unilaterally and retroactively transfers control and ownership of user generated content to Faceboook. It was quietly established by Facebook shortly after the company reached 175 million users and became the fastest growing social network service in the United States and prior to a decision to launch a new Application Program Interface that would provide Facebook developers access to detailed user data. The change is an Unfair and Deceptive Trade Practice, subject to review by the Federal Trade Commission (the “Commission”) under section 5 of The Federal Trade Commission Act, and should be reversed.

CONCLUSION There are many privacy issues that arise with social network services, such as Facebook. Some may be addressed through user control, user education, or change in business practices. But other matters go to the very foundation of the service, the rights and responsibilities that are assigned to the company and the users by the terms of service. This petition concerns one such matter. It simply cannot be correct that Facebook, having induced millions of Internet users to provide detailed personal information to share with their friends and colleagues, can now transform the terms of service under a take-it-or-leave-it edict that does not even allow users who choose to cancel the service the opportunity to recapture the data they provided. It is precisely in such circumstances that agencies charged with protecting consumers and safeguarding a fair and transparent marketplace must intervene.

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