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Facebook's Phony Privacy Battle

Katie Benner is a Bloomberg View columnist who writes about technology, innovation, and the cult and culture of Silicon Valley. She lives in San Francisco.
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When Facebook made user names,  profile pictures and other personal information publicly available a few years ago, founder Mark Zuckerberg said that people had started to care less and less about privacy. He told TechCrunch founder Michael Arrington: "That social norm is just something that has evolved over time.” And he said that Facebook was changing to keep up.

But the reality is that technology companies -- with Facebook leading the charge -- pushed that norm to change. Corporate surveillance was the proposed trade-off for “free” Internet services, a deal that has now extended to most mobile apps. Users challenged this bargain, but over time, the idea that social networks and apps mine and sell our personal data became accepted.

At the same time, a never-ending succession of security breaches reinforced the idea that there’s no such thing as an online secret. October's Snapchat hack proved that disappearing communiques never really go away. The Apple iOS hack this fall proved that photos on our phones aren't really private. And the new Sony hack was more proof that e-mails can easily be read and sometimes seep into public view, a lesson that most business people (and George Clooney) already knew. 

Thanks to services such as Facebook and our various smartphone apps, we’re always already under surveillance. Strictly speaking, we’ve volunteered to be watched by big corporations. But the more that software services become essential parts of life, the less that relationship complies with the spirit of the law. How numb have we become to the lack of control we have over our data? Even after we found out that Facebook and the dating site OKCupid used our information to conduct secret user experiments, the services still thrived.

Government surveillance seems to be the last line in the online privacy sand. When an agency watches us, especially without our knowledge, we believe that it’s an invasion of privacy that infringes on our rights. That's why revelations from Edward Snowden's massive data dump regarding National Security Agency widespread, secret surveillance created such a stir. 

That's why Facebook's current legal fight with the Manhattan district attorney’s office is so interesting. Basically, the company is appealing a decision that let the DA’s office collect vast amounts of data on 381 users as part of a disability fraud investigation. Of those people whose accounts were searched, about 300 were never charged with a crime. Facebook says the warrants were too wide in scope. It objects to the fact that it wasn’t allowed to tell users about the search, not even those who had done nothing wrong. And the company wants the right to challenge and reject bulk warrants for information, just as they can reject or modify subpoenas for information.

Fighting for the ability to treat warrants like subpoenas won’t necessarily stop law-enforcement’s push into our online lives. In a 2012 case involving Twitter, Manhattan prosecutors subpoenaed the microblogging service for deleted Occupy Wall Street messages. Twitter fought the request. In the end a judge ordered it to turn over the information. (Unsurprisingly, companies including Google, Twitter, LinkedIn, Microsoft and Dropbox are watching the Facebook case and have filed briefs in support of the social network.)

Judges so far seem unwilling to grant Facebook the right to reject search warrants, comparing them in these cases to warrants that let investigators search a storage facility or a home. Authorities generally don’t tell citizens that their property is about to be searched beforehand, for fear that people will destroy evidence. Facebook takes issue with that analogy because the Manhattan DA can’t enter Facebook’s system as it would a home and start rifling through drawers. The company itself must be complicit in the raid by collecting, packaging and delivering the data. And it’s not just a few storage lockers that were examined. Hundreds of accounts were swept all at once.

I’m as worried as anyone about what happens when government bulk data collection goes unchecked (Hello NSA!), even if that collection is in service of something good. One can certainly argue that the Manhattan DA should stop people from faking disabilities to steal taxpayer money. And many supporters of such warrants use the defense that innocent people have nothing to fear when third parties monitor their communiques.

Yet I don’t buy that pro-surveillance argument. As Mariko Hirose, a staff attorney at the New York Civil Liberties Union, told me: "The reason the Constitution limits the government's power of search and seizure, and the reason why we don't want the government combing through our information is because the government still has power that companies don’t, like the ability to prosecute people and take away their liberties."

It’s easy to understand why, in principle, Facebook doesn’t want to be complicit in these searches. Why it wants to be known as a company that fights back against the government.

But I wonder whether Facebook (or any company that thrives by sharing our data) is the best judge of what’s OK to hand over to investigators and what is not. Our current questions about surveillance wouldn’t exist without Facebook, which has undeniably forced users to cede privacy, click by click, to advertisers. The company doesn’t like playing ball with law enforcement, even though it has long performed, in anonymized fashion, similar research and data-mining for brands and marketers. That’s why this legal battle feels a bit like the company is wrapping itself in a mantle of user privacy protection that it hasn’t earned. 

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the editor on this story:
Tobin Harshaw at tharshaw@bloomberg.net