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Anita Ramasastry

Is Facebook's New "Bill of Rights" a Lasting Policy Change? Why User Inaction May Cause the Experiment to Fail


Tuesday, March 24, 2009

Facebook recently got lambasted by its users after it changed its Terms of service without providing users with direct notice of the change. In the new Terms of Service, Facebook purported to grant itself a perpetual license to user content, even after a member had left the site and canceled his or her membership. This term – and the fact that Facebook had attempted to make such a significant change quietly – angered many Facebook users who learned about the change only after a consumer-protection blogger mentioned it on his blog. (In a prior column, I further detailed the controversy and the legal implications and status of Facebook's Terms of Service change.)

In the wake of the controversy, Facebook backed down, and agreed to reinstate its original Terms of Service while it reflected on the issue. The result of Facebook's ruminations was that it proposed a set of "Principles" and a "Statement of Rights and Responsibilities" for its site that will be voted on by its members.

In this column, I will outline the current proposals that Facebook has published and discuss the procedures as to which Facebook is seeking user feedback. I conclude that while this is a brilliant publicity move for Facebook, in the end it is not certain whether Facebook will respect user privacy. The answer to that question is dependent on how active Facebook users are; more than 30% of active users will be needed to approve the proposed policies. Yet given the current volume of traffic on the relevant user "Town Hall" pages – which list between 10,000 and 11,000 or so users (as of 3 p.m. PST on March 24, 2009) -- it remains to be seen whether mass action guaranteeing user privacy will be possible.

The Facebook Bill of Rights?

At the end of the previous Facebook Terms of Service debacle, Facebook CEO Mark Zuckerberg pledged to come up with a new contract that incorporates input from the site's users. In a blog entry, he wrote:
"Our terms aren't just a document that protects our rights; it's the governing document for how the service is used by everyone across the world. Given its importance, we need to make sure the terms reflect the principles and values of the people using the service."

The company thus began to ask for suggestions for its new Terms of Service on a Facebook group page called "Facebook Bill of Rights and Responsibilities," where more than 90,000 users have already joined and posted several thousand or so relevant ideas. (A more precise count of the Terms of Service ideas is difficult to offer, for some of the postings are simply comments or opinions, and some relate to issues other than the Terms of Service.)

Facebook deserves praise for recognizing its prior error and now attempting to provide an inclusive approach to governance. It claims that it is offering its users around the world an unprecedented role in determining the future policies governing the service.

The Ten Facebook Commandments?

According to Facebook, "The Facebook Principles are derived from the belief that certain values should guide the company's efforts to achieve its mission of making the world more open and connected." The 10 Principles include the "Freedom to Share and Connect," and the "Fundamental Equality" of people on Facebook.

In essence, the Principles are a statement of general or core values to which Facebook wants the company and its users to adhere -- including one that states that Facebook and its users are part of "one world," wherever they are physically located. But more to the point, for this column's purposes, are the specific principles which deal with user privacy and ownership of user content – the subjects that caused the recent controversy.

Addressing these points, Facebook now states in its Principles:

" 2. Ownership and Control of Information

People should own their information. They should have the freedom to share it with anyone they want and take it with them anywhere they want, including removing it from the Facebook Service. People should have the freedom to decide with whom they will share their information, and to set privacy controls to protect those choices. . ."

Put simply, Facebook is trying to make it plain that users can make decisions about when to stay and when to go, and they can also take their content with them. But how do these principles work in practice? To answer that question, we need to examine Facebook's new and improved draft Terms of Service.

Facebook's New Terms of Service: Now Renamed Its "Statement of Rights and Responsibilities," But Still a Contract with Users

Facebook has renamed these Terms of Service a "Statement of Rights and Responsibilities." But much of the Statement still reads like a standard contract. (For instance, there is familiar jargon about where users can sue Facebook if they have a dispute with the company.)

And indeed, Facebook's own comments make clear that the Statement will, in fact, function as Facebook's new contract with its users: The company says the Statement "will govern Facebook's relationship with users and others who interact with it. Once finalized, the Statement will take the place of Facebook's existing Terms of Use, Developer Terms of Service, and the Facebook Advertising Terms and Conditions."

A New Right to Remove Content Upon Leaving Facebook

What is most important, in the new contract, is that Facebook states that users will be able to remove their content (after a reasonable time period has elapsed) once they leave the Facebook community. This is a marked difference from the contrary provision that proved so controversial.

More specifically, Facebook's relevant provisions of its Statement of Rights and Responsibilities read as follows:

"2. Sharing Your Content and Information

You own all of the content and information you post on Facebook, including information about you and the actions you take ("content"). In order for us to share your content and provide you with our services, you agree to the following:….

2.2 You may delete your content or your account at any time with the understanding that removed information may persist in backup copies for a reasonable period of time (but will not be generally available to other users), and that content shared with others may remain until they delete it."

Facebook's New Town Hall Approach, Encouraging User Participation in Governance, and Giving Users More Power

Meanwhile, the change that Facebook is touting as the most innovative is its new town hall approach, which provides the opportunity for users to comment on, and vote on, the documents described above. As Facebook's blog explains, "Over the coming weeks, users will have the opportunity to review, comment and vote on these documents. An update to the Privacy Policy is also planned and this change will be subject to similar input."

Facebook is seeking that input via virtual Town Hall meetings on the Internet that will be conducted for 30 days – with the comment period closing on March 29, after which Facebook will review and consider user submissions. These Town Hall meetings are web forums where users can post comments. Facebook will then republish the Principles and Statement of Rights and Responsibilities, incorporating any changes it has made based on user feedback, and give users the chance to approve or disapprove them. Of course, Facebook still controls the actual drafting of these documents.

Facebook has also made clear that it intends to continue the Town Halls if they are successful: It notes that "If these documents are approved, then all future policy changes would be subject to notice and comment periods of varying lengths depending upon the nature of the change. Following the comment period, Facebook would publish a final policy proposal that reflects the comments received."

How Many Users' Votes Are Needed to Approve Facebook's New and Improved Contract? And What If Not Enough Users Vote?

Following the first Town Halls, The Facebook Principles and the Statement of Rights and Responsibilities will be the first set of policies subject to a vote. The vote will be open to all Facebook users active as of February 25, 2009. Its results will be made public and will be binding if more than 30% of all active registered Facebook users vote. ("Active" means a user has accessed Facebook in the past 30 days.) At present, Facebook is estimated to have 175 million registered users; 30% of that number is nearly 43 million.

Will that many people really vote on what are essentially new Terms of Service, especially when most people don't even bother to read the Terms of Service of virtually any of the sites they use? Will the controversy and its media coverage get enough users interested in the new policies to break the thirty-percent threshold?

It seems possible – especially as Facebook users can so easily communicate with each other, and communication is a major function of the site. But is it likely? As noted earlier, the town hall forums which focus on the principles and the statement have at most 11,000 users at present.

What happens if the number of voters falls short of 30%? Facebook has not made that clear. Does Facebook get to choose the new contract (now called the Statement of Rights and Responsibilities) if not enough users vote?

Facebook's Policy on Future Amendments to Its Contracts with Users

And what about future amendments to the contract with users? On this topic, Facebook notes, "If users approve the draft Statement of Rights and Responsibilities, then all future policy changes would be eligible for a vote by users, provided the level of intensity of user interest would justify it. User interest would be determined by the number of users who comment on any proposed change during the comment period." In other words, users first need to approve the current draft Statement. Only then will Facebook put future amendments up to a vote.

For that happen, moreover, there will need to be at least 7,000 comments on any future proposed amendment, according to Section 12 of the draft Statement notes, for the amendment to be put a vote. What, precisely, will count as 7,000 comments is not clear. (Some postings may be clearly irrelevant; some may be marginally relevant; one user could try to post many times through a bot or some other method.)

Ultimately, Facebook will have to spend time reviewing and tallying the comments unless it just wants to go with a numerical total—a method which might encourage fraud. If the 7,000-vote threshold is passed, then once again, as with the Statement of Rights and Responsibilities currently up for voting, a vote on a future amendment shall be binding on Facebook if more than 30% of all active, registered users as of the date of the notice vote.

Fixing the Lack-of-Notice Issue That Was a Large Part of the Initial Controversy

Finally, users who were angered that they did not learn of the original, controversial Terms of Service change when it was made may be especially interested in Facebook's new methods of giving notice.
The new interactive user forums are definitely an improvement on the prior situation. In the future, users may want to be wary to make sure that notice of a proposed amendment is given well in advance of a vote, and continues to be given until the time of the vote. Currently, the amount of notice that must be given is somewhere between three and seven days – not very long to generate a lengthy column of comments. Also, a user can opt out of getting notice if he or she chooses.

Also, users should not expect notice via their personal email accounts, outside facebook. Facebook says "that it only has to give notice through Facebook." (It also promises "an opportunity to comment.") Thus, users who only check Facebook every few weeks may find, to their unhappy surprise, that they have missed a chance to comment on an amendment. Ironically, one of the ways users may want to amend Facebook's Statement of Rights and Responsibilities may be to give themselves more notice of a chance to comment on future amendment.

Is the Facebook governance experiment doomed to fail, or fated to succeed? Only time will tell. In the meantime, if you have an interest, post your comments on the Town Hall web pages and don't forget to vote. As noted above, it will take millions of Facebook users' votes for the new Principles and Statement of Rights and Responsibilities to actually go into effect. And that's where the devil is in the details – with a 30% threshold needed to accomplish change, and no hint as yet of what Facebook will do if the threshold is not met.

Anita Ramasastry, a FindLaw columnist, is the D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns.

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