Facebook Asked To Change Terms Of Service To Protect Journalists

from the a-chance-to-fix-things dept

There are plenty of things to be concerned about regarding Facebook these days, and I'm sure we'll be discussing them for years to come, but the Knight First Amendment Center is asking Facebook to make a very important change as soon as possible: creating a safe harbor for journalists who are researching public interest stories on the platform. Specifically, the concern is that basic tools used for reporting likely violate Facebook's terms of service, and could lead to Facebook being able to go after reporters for CFAA violations for violating its terms. From the letter:

Digital journalism and research are crucial to the public’s understanding of Facebook’s platform and its influence on our society. Many of the most important stories written about Facebook and other social media platforms in recent months have relied on basic tools of digital investigation. For example, research published by an analyst with the Tow Center for Digital Journalism, and reported in The Washington Post, uncovered the true reach of the Russian disinformation campaign on Facebook. An investigation by Gizmodo showed how Facebook’s “People You May Know” feature problematically exploits “shadow” profile data in order to recommend friends to users. A story published by ProPublica revealed that Facebook’s self-service ad platform had enabled advertisers of rental housing to discriminate against tenants based on race, disability, gender, and other protected characteristics. And a story published by the New York Times exposed a vast trade in fake Twitter followers, some of which impersonated real users.

Facebook’s terms of service limit this kind of journalism and research because they ban tools that are often necessary to it—specifically, the automated collection of public information and the creation of temporary research accounts. Automated collection allows journalists and researchers to generate statistical insights into patterns, trends, and information flows on Facebook’s platform. Temporary research accounts allow journalists and researchers to assess how the platform responds to different profiles and prompts.

Journalists and researchers who use tools in violation of Facebook’s terms of service risk serious consequences. Their accounts may be suspended or disabled. They risk legal liability for breach of contract. The Department of Justice and Facebook have both at times interpreted the Computer Fraud and Abuse Act to prohibit violations of a website’s terms of service. We are unaware of any case in which Facebook has brought legal action against a journalist or researcher for a violation of its terms of service. In multiple instances, however, Facebook has instructed journalists or researchers to discontinue important investigative projects, claiming that the projects violate Facebook’s terms of service. As you undoubtedly appreciate, the mere possibility of legal action has a significant chilling effect. We have spoken to a number of journalists and researchers who have modified their investigations to avoid violating Facebook’s terms of service, even though doing so made their work less valuable to the public. In some cases, the fear of liability led them to abandon projects altogether.

This is a big deal, as succinctly described above. We've talked in the past about how Facebook has used the CFAA to sue useful services and how damaging that is. But the issues here have to do with actual reporters trying to better understand aspects of Facebook, for which there is tremendous and urgent public interest, as the letter lays out. Also, over at Gizmodo, Kash Hill has a story about how Facebook threatened them over their story investigating Facebook's "People You May Know" feature, showing that this is not just a theoretical concern:

In order to help conduct this investigation, we built a tool to keep track of the people Facebook thinks you know. Called the PYMK Inspector, it captures every recommendation made to a user for however long they want to run the tool. It’s how one of us discovered Facebook had linked us with an unknown relative. In January, after hiring a third party to do a security review of the tool, we released it publicly on Github for users who wanted to study their own People You May Know recommendations. Volunteers who downloaded the tool helped us explore whether you’ll show up in someone’s People You Know after you look at their profile. (Good news for Facebook stalkers: Our experiment found you won’t be recommended as a friend just based on looking at someone’s profile.)

Facebook wasn’t happy about the tool.

The day after we released it, a Facebook spokesperson reached out asking to chat about it, and then told us that the tool violated Facebook’s terms of service, because it asked users to give it their username and password so that it could sign in on their behalf. Facebook’s TOS states that, “You will not solicit login information or access an account belonging to someone else.” They said we would need to shut down the tool (which was impossible because it’s an open source tool) and delete any data we collected (which was also impossible because the information was stored on individual users’ computers; we weren’t collecting it centrally).

The proposal in the letter is that Facebook amend its terms of service to create a "safe harbor" for journalism. While Facebook recently agreed to open up lots of data to third party academics, it's important to note that journalists and academics are not the same thing.

The safe harbor we envision would permit journalists and researchers to conduct public-interest investigations while protecting the privacy of Facebook’s users and the integrity of Facebook’s platform. Specifically, it would provide that an individual does not violate Facebook’s terms of service by collecting publicly available data by automated means, or by creating and using temporary research accounts, as part of a news-gathering or research project, so long as the project meets certain conditions.

First, the purpose of the project must be to inform the general public about matters of public concern. Projects designed to inform the public about issues like echo chambers, misinformation, and discrimination would satisfy this condition. Projects designed to facilitate commercial data aggregation and targeted advertising would not.

Second, the project must protect Facebook’s users. Those who wish to take advantage of the safe harbor must take reasonable measures to protect user privacy. They must store data obtained from the platform securely. They must not use it for any purpose other than to inform the general public about matters of public concern. They must not sell it, license it, or transfer it to, for example, a data aggregator. And they must not disclose any information that would readily identify a user without the user’s consent, unless the public interest in disclosure would clearly outweigh the user’s interest in privacy.

There are a few more conditions in the proposal, including not interfering with the proper working of Facebook. The letter includes a draft amendment as well.

While there may be some hesitation among certain people with anything that seems to try to carve out different rules for a special class of people, I appreciate that the approach here is focused on carving out a safe harbor for journalism rather than journalists. That is, as currently structured, anyone could qualify for the safe harbors if they are engaged in acts of journalism, and it does not have any silly requirement about being attached to a well known media organization or anything like that. The entire setup seems quite reasonable, so now we'll see how Facebook responds.


Reader Comments

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  • identicon
    Digitari, 7 Aug 2018 @ 10:57am

    Point of Order

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Aug 2018 @ 11:06am

      Re: Point of Order

      isn't the idea to fight hate speech and fake news? Seem's this would neuter the whole concept.
      (really need fa brief edit button)

      reply to this | link to this | view in chronology ]

      • icon
        James Burkhardt (profile), 7 Aug 2018 @ 11:59am

        Re: Re: Point of Order

        The point of what? The CFAA? Certainly not.

        I am confused as to the connection to the article, as it seems much of what you are talking about is left to my imagination.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Aug 2018 @ 11:01am

    Reasonable

    "The entire setup seems quite reasonable..."

    Kind o' like all that data that Cambridge Analytica got hold of right? Facebook can trust these promises, 'cuz, well, journalism.

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 7 Aug 2018 @ 12:39pm

      Re: Reasonable

      Hmm, it's a bit different, they are not providing some API but rather giving protection to journalists and probably researchers. The script mentioned explicitly did not store anything outside the user control.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Aug 2018 @ 11:04am

    One question, how are the requested privileges granted, without also allowing the likes of Cambridge Analytics or other politically motivated organizations or hired guns also claiming the research privileges?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Aug 2018 @ 11:18am

      Re:

      Cambridge Analytics collected non-publicly available information. That was the whole point of the operation.

      Journalists and researchers discussed in this article are asking permissions to collect publicly available information (or in the initial example, to provide users the ability to collect their own information.)

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Aug 2018 @ 11:22am

        Re: Re:

        They are also asking for the use of automated tools, which makes publicly available infomation much much easier to mine.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 8 Aug 2018 @ 1:15pm

          Re: Re: Re:

          They are also asking for the use of automated tools, which makes publicly available infomation much much easier to mine.

          Permission to collect public information is permission to use a computer to collect public information. Adding "using a computer" to the end of a sentence is not different from the original sentence (except in a strictly grammatical sense).

          If you wish, you may continue to live in a world in which the intended functions of computers do not exist. While I disagree that this type of willful fantasy is healthy to you personally, or society as a whole, I won't prevent you from doing so. But I won't modify my own language to make some sort of artificial distinction based on your fantasies.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 8 Aug 2018 @ 3:31pm

            Re: Re: Re: Re:

            When terms of service ban users from doing certain things, a journalism and research exception to that ban renders the ban moot, as anybody can claim to be a journalist or researcher. Alternatives some ill defines classes of users are granted privileges not available to the ordinary users.

            reply to this | link to this | view in chronology ]

  • identicon
    pixelation, 7 Aug 2018 @ 11:37am

    Oxymoron

    Facebook privacy

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Aug 2018 @ 1:30pm

    I appreciate that the approach here is focused on carving out a safe harbor for journalism rather than journalists

    Shouldn't the title of the article be changed then?

    reply to this | link to this | view in chronology ]

  • icon
    Mark Murphy (profile), 7 Aug 2018 @ 2:30pm

    What *Doesn't* Violate the ToS?

    The day after we released it, a Facebook spokesperson reached out asking to chat about it, and then told us that the tool violated Facebook’s terms of service, because it asked users to give it their username and password so that it could sign in on their behalf. Facebook’s TOS states that, “You will not solicit login information or access an account belonging to someone else.”

    By that definition, a Web browser violates the ToS, by offering fields for the user to type in their username and password.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Aug 2018 @ 3:36pm

    I Agree With Facebook Here

    First and foremost:

    The day after we released it, a Facebook spokesperson reached out asking to chat about it, and then told us that the tool violated Facebook’s terms of service, because it asked users to give it their username and password so that it could sign in on their behalf.

    Good. Anyone who builds a data tool that explicitly asks for username/password should get clubbed with a keyboard. You want user data? Build an add-on with approved APIs and permission requests.

    Next:

    And they must not disclose any information that would readily identify a user without the user’s consent, unless the public interest in disclosure would clearly outweigh the user’s interest in privacy.

    Hey guys, I'm a journalist and I now reserve the right to mine all of your data. Oh cool, you liked a picture of a baby? This is most certainly of public interest and outweighs your privacy (based entirely on my own investigation). "Hey everyone, this person could be a pedophile and I have evidence of them enjoying the pictures of young children".

    And of course:

    Second, the project must protect Facebook’s users. Those who wish to take advantage of the safe harbor must take reasonable measures to protect user privacy. They must store data obtained from the platform securely. They must not use it for any purpose other than to inform the general public about matters of public concern.

    Cool, everyone follows these terms. I mean if people didn't intentionally bend/break vague guidelines of for-profit internet companies then this proposal would be magical Christmas-land for all.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Aug 2018 @ 7:49pm

    When Facebook wants your opinion...

    they'll give it to you.

    reply to this | link to this | view in chronology ]

  • icon
    Bamboo Harvester (profile), 8 Aug 2018 @ 6:24am

    Define "journalist", please

    "I appreciate that the approach here is focused on carving out a safe harbor for journalism rather than journalists. That is, as currently structured, anyone could qualify for the safe harbors if they are engaged in acts of journalism, and it does not have any silly requirement about being attached to a well known media organization or anything like that."

    So anyone with a blog or a cellphone is a "journalist" and can access the "special" information?

    Reminds me of switchblade knives. Illegal in many states unless you're a Knife Dealer. What's the requirement to be a Knife Dealer? SAYING you're one.

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 8 Aug 2018 @ 10:24am

      Re: Define "journalist", please

      First link, first sentence:

      The purpose of your project is to inform the general public about matters of public concern.

      "Matters of public concern" is a legal term. There is a body of case law defining it (see Snyder v Phelps for a recent example).

      reply to this | link to this | view in chronology ]

  • identicon
    GERALD L ROBINSON, 8 Aug 2018 @ 6:43am

    Hate speach

    Facebook is granting special privileges to folks who have shown that they abuse them! Enabling some class of aristocracy calling them selves "researchers/journalists" is even more ridiculous than maintaining covert accesses.

    reply to this | link to this | view in chronology ]


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