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

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.

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.

Facebook private messages are governed by the 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. 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.

French Lawmakers Reject Internet Piracy Bill

French legislators on Thursday rejected legislation to permit cutting off the Internet connections of people who illegally download music and films. But a stubborn government plans to resurrect the bill for another vote this month.

Backers of the bill -- record labels, film companies and law-and-order parliamentarians -- couldn't rally the needed support during in a near empty lower chamber ahead of the Easter holiday. Lawmakers voted 21 to 15 against it.

The measure would have created a government agency to track and punish those who pirate music and film on the Internet. Analysts said the law would have helped boost ever-shrinking profits in the entertainment industry, which has struggled with the advent of online file-sharing that lets people swap music files without paying.

The government, intent on gaining the upper hand in piracy, managed to slip the measure into an April 28 special session devoted to initiatives by President Nicolas Sarkozy's conservative UMP party.

The president's office reaffirmed Sarkozy's wish to get the law passed "as quickly as possible."

He "does not plan to renounce this whatever the maneuvers" to try to stop the bill's passage, a statement said.

Music labels, film distributors and artists -- who have seen CD and DVD sales in France plummet 60 percent in the past six years -- almost universally supported the measure, hailing it as a decisive step toward eliminating online piracy and an example to other governments. Artists' groups in France have said the future of the country's music and film industries depends on cracking down on illegal downloads, and the legislation received industry support from around the world.

"It is disappointing that the law was not confirmed today," said London-based John Kennedy, Chairman and CEO of the International Federation of the Phonographic Industry, which represents the recording industry worldwide and supported the bill.

Legislators and activists who opposed the legislation said it would represent a Big Brother intrusion on civil liberties -- they called it "liberticide" -- while the European Parliament last month adopted a nonbinding resolution that defines Internet access as an untouchable "fundamental freedom."

Opponents also pointed out that users downloading from public WiFi hotspots or using masked IP addresses might be impossible to trace. Others called its proposed monitoring structures unrealistic.

"It is a bad response to a false problem," said Jeremie Zimmerman, coordinator of the Quadrature du Net, a Paris-based Internet activist group that opposed the bill, calling it "completely impossible to apply."

He said the bill's rejection is proof of a widespread sense that it was a draconian approach.

Under the legislation, users would receive e-mail warnings for their first two identified offenses, a certified letter for the next, and would have their Web connection severed, for as long as one year, for any subsequent illegal downloads.

French Culture Minister Christine Albanel had said the bill did not aim to "completely eradicate" illegal downloads but rather to "contribute to a raising of consciousness" among offenders.

"There needs to be an experiment," said Pierre-Yves Gautier, an Internet law expert at the University of Paris, noting the plummeting profits of the entertainment industry. "Frankly, it's worth it."