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Anita Ramasastry

The Failure of Facebook's Voter Experiment: What It May Mean


Thursday, May 7, 2009

In February 2009, Facebook found itself mired in controversy after it changed its Terms of Service (ToS) in such as way as to claim some ownership of user content, even after members had deleted their profile pages. Users complained, in particular, that Facebook had changed its ToS unilaterally and had merely posted a notice on one of its company blogs – without notifying users individually.

In the wake of the outcry, Facebook reverted to its original ToS and then drafted new guiding principles and a statement of rights and responsibilities – revised Terms of Service that were meant to be more protective of member privacy. Once Facebook had posted its draft documents, it promised to hold a vote among its active users – to determine if the new ToS would be adopted. (I covered the Facebook controversy and Facebook's proposed solution in greater detail in an earlier column.)

At the end of April, Facebook did hold a week-long vote. Based on that vote, 75 percent of users voting were in favor of the new terms. In light of this vote, Facebook has agreed to implement the new principles and statement. But there's a catch: Facebook had initially stated that it would only implement the new ToS if 30% of its active users approved them. This would have required 60 million or more of Facebook's reported 200 million users to vote, and to vote yes. But as it turns out, only a fraction of that number voted at all – a mere 600,000, less than one percent of Facebook's membership!

In this column, I will explore the vote and its outcome, and explain why Facebook needs to lower the threshold if it wants to subject new changes to user votes.

The Facebook Vote: Not Really a Failure in Online Democracy

The Facebook vote is significant less for its failure, than for what it says about online democracy. Faceboook's members are a dispersed, disparate group of people spanning continents and time zones. As I noted in my prior column regarding the vote, it seemed highly unlikely from the start that the site would attract 30 percent voter turnout. Many website users do not read ToS agreements in the first place; that suggests that they may be even less likely to take the further step of voting on amendments to the agreements.

But why was the turnout so low – not just under 30 percent, but under one percent? As critics note, the vote just may have been poorly publicized. It was not the case, for example, that every user received formal notice that the voting had opened. In the future, Facebook might consider making sure that each user receives notice at least once -- if not several times – of a vote. Moreover, giving notice through Facebook alone may not be sufficient. While many users visit their own pages daily, others may often be traveling or inactive for a full week (the voting period). Facebook may thus want to follow the model by which shareholders of large public companies receive notice of annual meetings via email, and are often able to cast their votes by following a link in an email. Facebook needs to advertise early and often, and to make voting as easy as possible if it truly wants to take the pulse of as wide a user base as possible.

Facebook has noted that it will consider lowering the 30% threshold for future votes – and this may be a well-advised move. The current 60-million-user benchmark is an unrealistic threshold – and with the network growing, the number of users representing the 30% benchmark will only increase.

Despite the small voter turnout, Facebook has noted that it will still abide by the outcome of the vote, since about 75 percent of the users who voted agreed with the new Terms of Service Facebook proposed. But the small turnout still leaves lingering questions: Legally, can only 600,000 users bind other users to the new ToS? And beyond legality, is this sufficiently democratic to satisfy users of the site?

In light of these questions, Facebook could simply respond that users who do not like the ToS or who feel they are being railroaded into something they did not approve can always leave Facebook. It is unlikely, however, that we will see mass defections.

Possibly Facebook could also try to use the fact that users had a chance to vote on the ToS, and ignored it, as a rationale for refusing to hold votes on amendments to the ToS in the future. But that would be a mistake: Instead, Facebook needs to admit that users may need better forms of notice – especially when issues as sensitive as, for example, privacy protections are involved.

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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