Aaron Poffenberger

In my earlier blog post about my decision to quit Facebook I wrote "I don't have any hard feelings against Facebook for wanting to earn a return on the investment in people and infrastructure they've put in place." I'm still of that opinion as far as the nature of the agreement is simply quid pro quo. With regard to Facebook's other actions, however, I'm less sanguine.

According to the EFF, Facebook have asked a US district court in California to rule that violation of their terms of service is a criminal act, not merely the normal civil "wrong" that breach of contract usually represents. More precisely, Facebook are arguing that enabling users to violate the prohibition against using "automatic means" to access their account makes the access unauthorized and therefore a criminal act under §502c of the California Penal Code. What do Facebook mean by "automatic means"? In this case using a third-party website to collect and aggregate messages, friend lists and other information from their Facebook account with similar data from other social media sites.

Facebook argue that Power Ventures are in violation of California's computer crime law (§502c) because their site enables user to violate Facebook TOS. No doubt Facebook's lawyers are basing their argument on paragraph 6:

(6) Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section.

I can't say precisely what the California legislature had in mind but it's hard to imagine Sacramento were thinking about mashup and aggregation sites. Why do Facebook care how users access the site? Remember what I wrote before:

The reality I wrote about earlier is that Facebook isn't really free. We do pay for Facebook. We pay with the most valuable commodity most of us have: our time. Facebook is a massively parallel data-collection system whose function is to document human relationships and activity with 100-million data-entry clerks. It's true we pay for television with our time (and cable subscribers with their cash). But it's mostly a passive time expenditure. With Facebook it's active. Very active. From the first moment of account creation every Facebook user is engaged in a process of data entry: name, date of birth, likes, schooling, friends, pithy comments, clicking interesting links. Data, data, data and all of it entered by the users. In other words, in addition to being the product we're also the producers. A user who opts out is effectively an idle producer, a free rider. One way to get more value out of them is to get them "working" again by adding new products and services to entice them to enter more data. Another is to get more value out of the data you already have, hence the reason they keep fiddling with data preferences.

Allowing users to access their data from another interface 1) makes Facebook just "another" social-media service as opposed to the user's "one" social-media portal, 2) means the user is visiting power.com, not facebook.com, and 3) since power.com lets the user use multiple social-media services raises the risk the user might enter data, i.e., post a message, click a link, make a new friend via a competing service. All of which makes the user less productive hence less valuable thus reducing the return on investment.

Why don't Facebook just terminate the accounts of users who violate the TOS? Because they can't or at least really don't want to. Remember, Facebook users, their likes and dislikes, their relationships and personal information are the products Facebook intend to sell to their customers. As the number of users and the interconnections between them expand so does the value of Facebook's data stores. By canceling accounts Facebook lose product and risk alienating other productive users to competitors — competitors who've wooed the canceled users who then become advocates of the "friendlier" system. If you can't "fire" the users who violate the TOS and you dare not risk becoming just another social media connection in power.com what do you do? Co-opt or destroy the competitor.

Facebook tried to bring Power into the fold as it were by inviting them to use the "authorized" connectors into the system. The "authorized" method for partners to connect is called Facebook Connect.[fn:1] It's a controlled system for partners to access Facebook users. Very controlled. Undoubtedly some of the controls are there to keep the system from being overloaded and abused. Is it all necessary? Who knows. The upshot is that Power Ventures opted for another solution to enable users to access their Facebook account from power.com. Enter the lawsuit.

The lawsuit has many more complaints in addition to that of violation of California Penal Code §502c. In the complaint Facebook claim Power Ventures have violated the DMCA, Lanham Act and other statutes.[fn:2] I doubt Facebook will win on the complaint of violating §502c of the California Penal Code. I do think they stand a chance on some of the other complaints.

Nevertheless, the decision to include 502c is troubling. Regardless where one stands on copyright and trademark protection we should all draw the line at harassing a competitor with a criminal complaint when there is no criminal conduct. Of course Facebook lawyers will stand in court with straight face and argue that enabling users to access their accounts in an unauthorized way is criminal conduct and hence the complaint is legitimate. Before we jump to Facebook's defense let's remember 1) these users aren't viewing data they wouldn't normally have access to, 2) much of the data the user created in whole or in part, and

  1. Facebook have a remedy available to them — they can cancel the user's

account. Let's also keep in mind that if indeed Power Ventures are engaged in criminal activity by providing the means to access facebook.com in unauthorized ways then certainly the users are complicit. Where are the criminal complaints against users of power.com?

In short, this suit isn't about criminal trespass. It's about Facebook wanting a world with limited or no competition. What a curious world Facebook executives live in where competition is a crime.

Footnotes