Facebook private messages are
governed by the Electronic Communications Privacy Act, which forbids communications providers
from intercepting user messages, barring limited exceptions for security and
valid legal orders.
While the sniffing of e-mails
is not unknown — it’s how Google serves up targeted ads in Gmail and how Yahoo
filters out viruses, for example — the notion that a legitimate e-mail would be
not be delivered based on its content is extraordinary. Facebook chief privacy officer
Chris Kelly acknowledged that the site censors user messages based on links.
But he insisted that Facebook has the legal right to do so, because it tells
users they cannot “disseminate spammy, illegal, threatening or harassing
content.” “Just as many e-mail services
do scanning to divert or block spam, prevent fraudulent, unlawful or abusive
use of the service — or in the case of some services, to deliver targeted
advertising — Facebook has automated systems that have the capability to block
links,” Kelly said in an e-mail. “ECPA expressly allows Facebook to operate
these systems.” “The same automated system that
blocks these links may also be deployed where there is a demonstrated disregard
for intellectual property rights,” he added. Facebook declined to answer
questions about whether it similarly searched private messages for references
to illegal drugs, underage drinking or shoplifting. EFF lawyers suggested that the
legality of Facebook’s censorship turns on Facebook’s Terms of Service, how and
when the blocking takes place, and whether the messaging system affects
interstate commerce (thus giving the federal government jurisdiction). It’s not clear, however, how
links to torrents are spammy, harassing or illegal. Torrents themselves are not
copyright-infringing, nor would Facebook be liable for their users’
communications under federal law even if the files were infringing.
Facebook now a Nanny State
Facebook has started censoring messages containing links to The Pirate Bay.