September 15, 2010 | By Marcia Hofmann

Sarah Palin Revisited: Why Terms of Use Shouldn't Be Enforced Through Computer Crime Law

Last week, we questioned whether Sarah Palin may have violated Facebook's terms of use by using a ghostwriter to update her profile. We also criticized Facebook's attempts to enforce those terms with state and federal computer crime laws — which carry both civil and criminal penalties — in Facebook v. Power Ventures.

As we explained, it's dangerous for a website to claim that users who breach its terms of use also violate computer crime law. Facebook users can easily make uncontroversial choices that nevertheless violate the plain meaning of Facebook's terms. Furthermore, Facebook shouldn't have the discretion to criminalize certain behavior just by forbidding it in terms of use.

In response, Facebook has written to us to point out the Sarah Palin and Barack Obama profiles we mentioned in our earlier post are Pages — or public profiles — rather than personal profiles. Facebook also noted that its general terms of use incorporate by reference another set of terms of use specifically for Pages, which allow the subject of a Page to authorize representatives to administer her public profile. Those representatives can administer the Page using their own accounts.

There's still a problem, though. Facebook maintains that both creators and administrators of Pages are also bound by the general terms of use that apply to all users. And those terms appear to contain provisions that contradict the Pages Terms.

For example, the Pages Terms say:

  • "You may only administer a Facebook Page if you are an authorized representative of the subject of the Page."

While the general terms of use say:

  • "You will not solicit login information or access an account belonging to someone else."
  • "You will not . . . let anyone else access your account, or do anything else that might jeopardize the security of your account."

The general terms of use don't explain what Facebook means when it uses the word "account," but they do say "[y]ou will not transfer your account (including any page or application you administer) to anyone without first getting our written permission." That suggests that Facebook considers a Page to be part of a user's account, so all three of the above provisions apply to Pages.

The upshot is that all users who create or administer Pages are bound by both sets of terms, which contain provisions that appear to be contrary to each other. This lack of clarity is exactly why it's a bad idea to enforce terms of use with computer crime laws, as Facebook is trying to do in its lawsuit against Power Ventures.

We doubt that Facebook would give Sarah Palin or anyone else using Pages a hard time for violating one set of terms to follow the other. But that's not the point. Facebook is arguing that it should be able to use the blunt club of computer crime law to beat down users who violate terms of use. This, despite the fact that users who create and administer Pages can't follow one set of terms without running afoul of a different set of terms.

As the Supreme Court has long held, and reiterated just this year, people must have clear notice of what's a crime. See Skilling v. United States, 130 S. Ct. 2896, 2927-28 (2010). If violating terms of use is a criminal act — as Facebook claims in its lawsuit — and Facebook has contradictory terms of use, then it's impossible for users to know what's actually OK and what could get them thrown in jail.


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