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Facebook, Privacy and Contracts
Mark Rasch, 2009-04-08

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Unfortunately, what the lawyers write becomes essentially the law, and that has consequences. There is no doubt that the newly abandoned Facebook terms were intended to reflect the actual practices of Facebook, and that there was no real change in privacy policy. However, by licensing everything to Facebook in perpetuity, there was a genuine risk that, for example, some future executive for some company that acquires Facebook generations from now may decide to sell your poetry, your photograph, your comments, or anything you have written. After all, the words of the terms of service granted a perpetual license.

Many companies and some ISP’s have privacy policies that dictate that "all e-mails are the property of the company." It is a fairly standard policy and is intended to allow an employer to read the contents of inbound and outbound emails and prevent a departing employee from taking "files" sent through electronic communications with them.

But the policy doesn’t merely say "we can read your e-mail and you can’t take it with you." It says that e-mail is the property of the company or the Internet service provider. This creates implications that there is a transfer of intellectual property rights by virtue of the fact that a particular medium is used for communication. If I write the Great American Novel and e-mail it to a buddy who works for a company with such a policy (assuming they are not a literary agent and that I am aware of their internal policy) is my e-mail now the "property" of the recipient? May the company now publish – under their own name – my novel because I used e-mail to transmit it? What does it really mean to own e-mail? What does it mean to grant a perpetual license to Facebook postings?

We intend to create a limited right, but in doing so open a Pandora’s box.

The problem is exacerbated by recent rulings interpreting and expanding the scope of terms of use or terms of service. Most recently, in the criminal prosecution of Lori Drew — the so-called "MySpace suicide case" — a jury convicted a Missouri mother for creating a MySpace account in the name of a fictional 16-year-old boy as this violated MySpace’s online contract terms that all information provided to MySpace would be accurate. Thus, technical violations of online agreements can be the basis for litigation not only for breach of contract, but also for civil or criminal trespass, trespass to chattels, interference with business relationships, or even computer fraud or computer crime.

In other words, words matter in contract law. When writing online contracts, say what you really mean and keep it simple. Hopefully, this will put an end to the kerfuffle.



Mark D. Rasch is an attorney and technology expert in the areas of intellectual property protection, computer security, privacy and regulatory compliance. He formerly worked at the Department of Justice, where he was responsible for the prosecution of Robert Morris, the Cornell University graduate student responsible for the so-called Morris Worm and the investigations of the Hannover hackers featured in Clifford Stoll’s book, "The Cuckoo’s Egg."
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Friends 2009-04-17
Anonymous (1 replies)
Re: Friends 2009-05-02
kodos


 

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