Is Facebook Violating Federal Wiretapping Laws?

Facebook has been at the center of a controversy involving its moderation policies and The Pirate Bay, a popular Bittorrent tracker that was found guilty of copyright infringement by a Swedish court last month. Since early April, Facebook has enforced a “site-wide” ban on links to The Pirate Bay – including those in private messages.

This practice may run afoul of federal wiretapping statutes that bar service providers from “intercepting” private messages, according to an article that appeared on Wired Threat Level last week. Wired quotes Kevin Bankston, a senior attorney for the Electronic Frontier Foundation, who explains that Facebook’s practice raises “serious questions about whether Facebook is in compliance with federal wiretapping law.”

It’s important to draw a distinction between the traditional notion of “wiretapping” and Facebook’s “interception” of user messages, which doesn’t involve any human intervention. Regardless of how the courts may interpret ancient laws like the 1986 Electronic Communications Privacy Act, an automated computer system flagging and deleting certain strings from user messages simply isn’t comparable to a third party secretly listening in on a private phone conversation.

Besides, Facebook makes clear to its users from the get-go that their messages and postings are subject to a set of rules (which Facebook lays out in plain English). If Facebook believes a message or posting is against the rules, it can block or remove it. This is not an unreasonable rule; many online discussion forums have enforced similar policies since the Web’s early days. Such filtering is possible only if sites can “examine” messages to identify misconduct.

Critics of Facebook’s filtering policies have rightly pointed out that even legal Pirate Bay links are being blocked. While this is a valid argument, it belongs in the Facebook’s Site Governance page – not in a court of law. It isn’t the role of government to second-guess content judgments reached in good faith by social networking sites. Facebook must weigh a range of competing concerns in deciding how to cater to its hundreds of millions of diverse users. The same message that one user might consider “spammy” or malicious might be seen in a totally different light by another user. Add into the equation concerns over reputation and even potential copyright infringement liability, and it’s easy to see why Facebook has to make tough – and controversial – decisions all the time.

While I agree with Bankston that the legal ramifications of Facebook’s practices are far from clear, I’m concerned about the prospect of wiretapping laws being used against websites that moderate communications between users. If filtering Pirate Bay links from user messages constitutes illegal wiretapping, then it would seem that any social network or discussion forum that monitors and removes content from user-to-user communications would be in violation of federal law.

What would it mean for the Internet if websites were barred from moderating messages sent between users? AOL might not be able to “kids only” chat rooms; instant messaging services might be even more spam-ridden than they already are; and yoursphere, a social-networking site “just for kids,” likely wouldn’t even be able to exist.

Decisions about how to operate private online ecosystems are best left to individual firms competing in an open marketplace. Prohibiting website operators from moderating user messages may not bother people who don’t mind spam or porn (or Pirate Bay links), but what about people who desire a social network in which certain kinds of speech are off-limits?

One of the best aspects of the Web is that choices are abundant. If you don’t like one social networking site’s policies, you can go someplace else. Users can already send around links to Pirate Bay torrents through countless other social networking sites, email providers, and instant messaging services. Gmail, AIM, Ning, and Skype are just some examples of free online services that do not censor Pirate Bay links. Heck, if none of these options are satisfactory, you can even build your very own social network with free software like BoonEx and spread around all the Pirate Bay links you want.