Facebook Freak Out

File FTC complaints in haste. Repent in leisure.


Facebook turned five at the beginning of February, and decided to celebrate by updating its Terms of Service. You know Terms of Service—it's that screen where you click "I Agree" or check a box that says "I have read the terms of service"—almost always without having done anything of the kind.

One of Facebook's lawyers threw up a note on the website's official blog the day of the change, and that was about it for warning. No fanfare, and no request for re-approval by users. (The previous Terms of Service allowed such changes without notification.) The primary change was in the wording describing Facebook's license on user content. Previously, the Terms of Service terminated all of Facebook's rights to your content if you left the site for good. Under the new wording, Facebook retained some rights to the content, which remained subject to the privacy controls you selected for it as a member.

Despite the lack of ruffles and flourishes, the popular blog Consumerist took note of the changes in a post titled "Facebook's New Terms Of Service: 'We Can Do Anything We Want With Your Content. Forever.'"

Within hours, several Facebook groups sprung up to protest the changes, one with 100,000 members, who left more than 1,000 comments on the wall. Several posters were self-aware enough to enjoy the irony of generating additional Facebook content under objectionable terms: David Night-Craze Saunders of Buffalo, New York, wrote "Thats why we need to start communicating through other means to plan a revolution against Facebook." Others, like Coleston Pluzak of Toronto, Ontario, seemed less cognizant of the irony of posting things like "Yeah, what a big steaming load of horseshit…You make me sick lawyer fuck."

The site has a history of backing down in the face of user complaints: Facebook CEO Mark Zuckerberg has become an expert in the art of hustling out vaguely defensive explanations, followed by vigorous consumption of crow. But that didn't stop the Electronic Privacy Information Center (EPIC) from whipping up a 25-page complaint to file with the Federal Trade Commission. An unnamed Facebook official wound up calling the executive director of the D.C.-based non-profit at home at 10 p.m., asking him to hold the complaint while Facebook worked on the wording for backing down once again. Zuckerberg reverted to the old Terms of Service and now says that they will be revised in the next few weeks as part of a collaborative process.

But even the collective genius of Facebook's 175 million users may not be able to solve the very old problem Facebook faces. Zuckerberg explains it this way: "People want full ownership and control of their information so they can turn off access to it at any time. At the same time, people also want to be able to bring the information others have shared with them–like email addresses, phone numbers, photos and so on–to other services and grant those services access to those people's information. These two positions are at odds with each other."

The material in contention is by definition semi-public. We're talking about photos that you posted and others commented on. Comments on other people's pages. Messages sent within Facebook's quasi-webmail interface.

Zuckerberg calls the language of the now-revoked Terms of Service "overly formal," and he's right. Facebook realized their old Terms of Service didn't reflect the way people actually used the site, lawyered up to rewrite the rules, and then were surprised when a super-interactive user base dug in and figured out what they were agreeing to. Users scoffed at Zuckerberg's "we would never do anything to hurt you, baby" reassurances ("In reality, we wouldn't share your information in a way you wouldn't want.") And rightly so, Facebook can and should do better than that.

One might argue, as EPIC likely would in its complaint, that experts at the Federal Trade Commission (FTC) need to get involved because laymen can't be expected to educate themselves about the complicated legal issues involved in online privacy, contracts, and other issues. But look at the article you're reading right now. Nearly every link is to a site where someone has delved into the new Terms of Service, parsed the language, thought about the broader issues involved, or otherwise furthered the discussion. For the confused, one blogger even generated a super-simple pictorial guide to the changes. The legalese of the original Terms of Service was translated into snark, to explain what is going to to those whippersnappers in their own language.

Meanwhile, legal challenges about Terms of Service are popping up on the user side as well. Reason Senior Editor Jacob Sullum wrote about the case of Lori Drew, who pretended to be a teenage boy on MySpace and eventually contributed to the suicide of a 13-year-old girl, in which a Los Angeles prosecutor attempted to make a criminal case out of the violation of the MySpace Terms of Service under the Computer Fraud and Abuse Act of 1986, a law designed to catch hackers.

Along with the more infamous aspects of the new Terms of Service, Facebook introduced some changes that offered better legal protections for users, mostly in response to recent legal decisions. Facebook had been governed by the laws of the famously pro-corporate Delaware. The new terms switch that to California, where the customer is always right. Filing class action suits against Facebook is no longer expressly forbidden, since courts have not looked kindly on provisions that reduce consumers' ability to sue in recent years.

In his post about the changes, Mark Zuckerberg uses the analogy of a nation state: "More than 175 million people use Facebook. If it were a country, it would be the sixth most populated country in the world. Our terms aren't just a document that protect our rights; it's the governing document for how the service is used by everyone across the world."

If Facebook were a country, it would also have one of the most open, responsive governments in the world. Why? Because people can really leave Facebook. There are perfectly good places to go, and low transition costs. Don't like the way you're treated on Facebook? Opt for MySpace or LinkedIn, or any number of competitors. First join all the "reform Facebook" groups on Facebook itself you like, but if you don't get your way, you can always walk away, into the arms of one of the site's many, many competitors.

People Twittered the heck out of this issue, showing a willingness to hop between media to deal with problems, and perhaps also signaling a willingness to leave Facebook if their concerns went unaddressed.

EPIC ended up holding off on its legal action, but Rotenberg says he's keeping the FTC complaint "in his back pocket." But as boneheaded as the execs at Facebook can be, the last thing they need is the help of more lawyers and activists. The users have things well in hand.

Katherine Mangu-Ward is an associate editor at Reason magazine.

NEXT: New Law Protects Customers from Murderous Restaurateurs, Peanuts

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  1. I got rid of Facebook and am much happier for it. You kids these days and your exhibitionism…

  2. Still, Katie, you need to shave.

  3. That’s a picture of NutraSweet.

  4. Fuck Facebook and all the assfaces who use it. If people want to know what I am doing, they can come see me.

  5. Amen, Zeb. Amen!

    The only thing worse than Facebook is Twitter.

  6. I love facebook — it allows me to get updates on people from my past that I only marginally care about but doesn’t force me to actually have to spend time with these people or have awkward conversations with them. Win-Win

  7. If people want to know what I am doing, they can come see me.

    Excellent advice. I’ll try that on my extended family, all of whom live at least three states distant from me, when they want to know how things are going.

    Alternatively, perhaps we can conclude the “social” part of “social networking” eludes you completely.

  8. I can see a defense for Facebook, but can anyone please tell me what the fucking point of twitter is?

  9. Fuck Facebook and all the assfaces who use it.

    Hey you kids, get off my lawn!

  10. I thought facebook undid the change to the TOS already?

  11. now that I have rtfa, I see kmw mentions that.

  12. BDB,

    To allow the ridiculously self-absorbed people you know to relate the minutiae of their life by a completely avoidable electronic communication system rather than in conversation, thus saving you several minutes of pretending to listen when you encounter them in social settings.

  13. If I had a cane, I’d shake it!

  14. Facebook can be useful, but man, I hate going to my profile and seeing one of the idiots from high school (who Friend requested me out of the blue, and who I couldn’t care less about) posting everything they are doing all day on Facebook.

    The worst? The stay at home moms. OH MY GOD SHUT UP.

  15. Paul wins the thread.



  17. Having hot chicks from the past friend you on Facebook: awesome
    Realizing they are 2000 miles away: not so much

  18. Epi,

    Clearly you should you use Naga style tact and sleep with said mommies. It’s for their own good anyway, right?

  19. I had to block that picture. It was just freaking me out.

    I do like beer, though.

  20. Clearly you should you use Naga style tact and sleep with said mommies. It’s for their own good anyway, right?

    Younger and childless > older and stretched

    That’s Episiarch math.

  21. Are we sure that isn’t a picture of Lefiti?

    Or the fake Lefiti?

  22. I use different math . . . or I use to anyway. Younger and childless cost more in terms of dinners, drinks, gifts, flowers, etc. Not counting having to listen to boring conversations about dirtbag ex-boyfriends and how I was soooooooooooo different. That’s Naga math . . . or was anyway.

  23. Help is available for that unibrow.

  24. Younger and childless > older and stretched

    That’s Episiarch math.

    We already determined that Epi has a small dick.

  25. Epi, see Kegel Exercize

  26. !,

    I see your Kegel Exercize, and raise you Ben Wa Balls.

  27. Younger and childless > older and stretched

    In etymology > means “yields,” i.e., older and stretched derives from, started out as, originated in younger and childless.

    Only solution is to do it for the children.

    To coin a phrase.

  28. Hahah…thats why Myspace is soo much better. …ya..right lol.

    I like Myspace. Seems less right wing. lol

  29. We already determined that Epi has a small dick.

    Who is “we”, and why have you been thinking about my dick?

  30. MattXIV,
    So Twitter allows all you non-engineers the joy of not having to pretend to listen to people’s conversations? Because in my experiance when you let people know that you are an engineer they don’t expect you to pay attention to their boring stories.

    When I first read about Twitter, whenever it came out, it seemed like the most annoying product ever. I hardly care about my stream of consciousness, much less anybody else’s. I mean, it’s like a blog without even the need for someone to remember their drivel until they get to a computer.

    I’ve just committed the ultimate irony. I just dissed blogging in a blog.

  31. …ya..right lol.
    I like Myspace. Seems less right wing. lol

    Say ‘lol’ again. Say LOL again, motherfucker! I dare you, I double dare you, motherfucker. Say LOL one more goddamn time.

  32. What’s with the alarmist headline? The only one who filed an FTC complaint is the EPIC. Are they repenting? Or was the headline justified because it was so cute? It would have been more appropriate if you had written it in LEETspeak … that way you could be alarmist AND cool. I miss journalism.

  33. I have my Facebook page open now. No comments from today. Or yesterday. Or the day before. Or last week.

    Having only 5 Facebook friends is bliss.

  34. I’ve got you beat economist. I’ve still got the same 11 friends on myspace. They never bother me cuz I haven’t accessed it since . . . oh . . . September, I think.

    What’s that? You posted something on myspace? Really? I’ll check just as soon as I get a chance.

  35. This is a great example of the strength of free markets. The customer is always right, if you want to stay in business. The loser is, as usual, the STATE.

    The FTC is like, well, you have two teenagers getting it on fine, then they fight, then they make up, only there’s this total nerd in the back seat of the car trying to meddle………..

  36. “This is a great example of the strength of free markets. The customer is always right, if you want to stay in business. The loser is, as usual, the STATE.

    I hate to brake it to you Douglas but the STATE (oh the naughty naughty thing !!!) never got involved and hence neither lost or won.

    I find it hilarious when people such as yourself gives the State some kind of godlike desire to control your life. We live in a democracy man, loosen up and get out from under your bed 🙂

  37. By the picture accompaning this post, are we sure we have not already cloned Neanderthals?

  38. I hate to brake it to you Douglas but the STATE (oh the naughty naughty thing !!!) never got involved and hence neither lost or won.

    The Total State loses whenever anything happens that it has not approved.

  39. “More than 175 million people use Facebook. If it were a country, it would be the sixth most populated country in the world. Our terms aren’t just a document that protect our rights; it’s the governing document for how the service is used by everyone across the world.”

    Now, if only users could access

  40. I read the Terms of Service upon signing up and the Platform Application terms when I added an application earlier this month. It states at the beginning when the terms were last updated.

    Mostly I scan these TOS things for possible fees or anything I think could potentially be problematic for me. Typically the terms of service are primarily these basic points:

    – You represent that you are of legitimate age to do this (and, in the case of Facebook, that you aren’t a sex offender).

    – You agree not to harass/defraud other users, steal other people’s intellectual property, upload viruses, or otherwise mess up our site.

    – If some other user does bad things to you through the site, you agree not to sue us. We reserve the right to malicious content but have no obligation to do so.

    – You agree not to copy our source code.

    – To the greatest extent permitted by law; we disclaim any warranties, fitness for a purpose, virus-free availability, and anything else that might allow you to sue us if we didn’t disclaim it.

    Sometimes they also say something about disputes being settled through a private arbitrator.

    The problematic clause in the new Facebook terms seems to be this:

    You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof.

    Some users were worried that some other corporation might buy Facebook, and their picture would end up on billboards or something promoting some product (even though it says “in connection with the Facebook Service or the promotion thereof“). And some people had things like music or artwork on their pages which they were worried Facebook might sell to make money (luckily for me, I hadn’t uploaded such things).

    In this case the public relations problem that would result from that would outweigh any benefits they could expect from such a course of action. So it makes sense for Zuckerberg to address users’ concerns and change the terms.

    However, its possible to imagine a situation where bad PR won’t be a sufficient deterrent for some company that says “we reserve the right to change the terms…”. For that reason; I think changes to these sorts of things, if they could harm the interests of a typical user, should only be enforceable if there is a separate, identifiable act of informed consent.

  41. Have you considered the idea of using Creative Commons licenses to solve this problem? Could it work instead of letting the Facebook guys do whatever they want with the content we upload?

    I don’t like facebook and left it since it begun offering extra services that were way beyond the main idea it was built for.

    I have seen dozens of people inmersed inthere for hours and hours using it without noticing that it is just like Big Brother behaves in Orwell’s “1984”.

  42. I feel a strong desire to post here representing the libertarians who are NOT antisocial, engineering types LOL. However I am married to one such, so I’m used to the behavior. He doesn’t really get FB or Twitter either (he’s my very own grumpy old man ?).

    With that said, he also doesn’t mind the rather large paycheck I earn thanks to my ability to connect with and influence people online. (I’m the cofounder of a popular 10 year old site for women that generates millions of dollars in revenue each year.)

    FB and twitter are fabulous ways to connect with like-minded people and promote one’s service/s. Twitter is really pretty interesting. Check out to see how some people are using it to rally support and activity for political idealogy. (I am not a member, but several #tcots are in my twitter feed – in fact, I found out existed thanks to a link that came up via #tcoter.)

  43. PS: If you don’t want to see those pathetic SAHMs then *don’t* accept their friend requests. Or delete them. Or remain friends but downgrade them in your settings to you never (or hardly ever) see their updates.

    Of course, that’s not nearly as fun as trying to be funny/cynical/misogynistic about the victimizing imposition of Web 2.0 in your life.

    Pull up your bootstraps, whiny baby dude, and take care of yourself.

  44. “I’ve still got the same 11 friends on myspace.”
    Heh heh. Myspace. Heh heh.

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