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Technical rebuttal of Mark Zuckerberg’s rebuttal to Facebook TOS change

There is no spoon

Damage Control

Mark Zuckerberg defended the recent change to Facebook’s TOS in a blog post recently. As much as I appreciate any response from Facebook regarding their lecherous move, his rebuttal has no merit whatsoever. As a co-founder of my own startup in the 90s (unfortunately, never anything close to the scale of the 500-lb gorilla that is Facebook), this post is simply damage control.

Let’s break it down:

“When a person shares information on Facebook, they first need to grant Facebook a license to use that information so that we can show it to the other people they’ve asked us to share it with. Without this license, we couldn’t help people share that information.”

Not necessarily. You could have a terms-of-service which states:

  • You, the user, promise to upload content and information for which you have a license or are owner of
  • You grant a license to any other user who is connected to the Facebook network to copy, disseminate, download (and the 42 legal synonyms) your content
  • Upon cancellation of  your account, we will take reasonable means to remove your licensed information from our site and from your friends pages, but …
  • Ultimately, we are not liable for others accessing or disseminating your content

You get the point. From a legal perspective, they could simply say they are an intermediary, like the cell phone company which transmits my text messages to all my friends. They phone company doesn’t own the text message; I do. My friends get a copy and can copy it again if they want, but I retain original ownership.

Another good example is online mail programs. People send images, videos to their email lists… not so different than Facebook. The other 500-lb gorilla out there doesn’t own your email messages in perpetuity either. They have language which says they will delete things immediately, but backups etc. may take up to 60 days to delete. As well, they don’t have rights to your content either.

“One of the questions about our new terms of use is whether Facebook can use this information forever. When a person shares something like a message with a friend, two copies of that information are created—one in the person’s sent messages box and the other in their friend’s inbox. Even if the person deactivates their account, their friend still has a copy of that message.”

From a layman’s perspective, this is true, however from a technical perspective, it is not. Facebook connects information between people within their database, using hard links to “objects.” Copies of information flying around are still linked back to the originating source (you, and your profile.) Saying there’s a copy somewhere is an oversimplification of it, and all in all, it does not prevent Facebook from deleting your data and your copies of data when you leave.

There is absolutely no reason why they can’t delete your information when you leave. So, in your friend’s in box where it says, “From Kent Davidson”, they don’t know that message is from me? They can’t delete it? Absolutely not true at all.

“In reality, we wouldn’t share your information in a way you wouldn’t want…”

Unfortunately, Mark, saying you wouldn’t share it doesn’t mean anything legally. As well, it means nothing. How do you know how I want you to share my information anyway?

Historically, every example of sites which become “huge” like Facebook ultimately become beholden to their bottom line, which means selling out their users in one way or another.

“A lot of the language in our terms is overly formal and protective of the rights we need to provide this service to you.”

At a multi-billion dollar valuation, you’d think Facebook would be able to hire some lawyers who could come up with less formal language which didn’t piss off privacy advocates out there. I think they can CYA without owning all user content on their site in perpetuity.

“There is no system today that enables me to share my email address with you and then simultaneously lets me control who you share it with and also lets you control what services you share it with.”

I’m going to say not true. There are methods by which you can share your email address with someone and then retain control if they decide to abuse that right.

The simple P.O. Box is one, for example, where you can get a new P.O. Box if your friends start sending you junk mail. Likewise, email addresses can be changed as well, and most email programs allow me to set up a “filter” which lets an email address receive email from a select list of people.

Because all roads lead back to Facebook.com, you have no control over your information there at all.

However, Facebook chooses to own your information, to hold onto your information forever, and they “won’t share your information in a way you wouldn’t want.”

That doesn’t mean they use it in the way you want either.

I am going to stick with the tenet that if you care about privacy, you have to pay for online services to protect it. There’s really no other way.

Update: Nice post by Amanda French about how Facebook compares among 500-lb gorillas.
Update: Also, the LA Times makes very similar points to my points above.
Update:
Researched ownership and what Facebook TOS means about your ownership.
Update:
Great legal opinion about changing the Terms of Service behind your back.

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