Legal Commentary

Facebook Ready To Litigate ECPA Issues

By Orin Kerr

The National Law Journal reports on an interesting position by the Deputy General Counsel of Facebook:

Facebook?s legal department is ready for a fight. Almost every day, law enforcement officials and civil litigators request information from a user?s Facebook account, Deputy General Counsel Mark Howitson told several hundred lawyers in a packed ballroom during his keynote address Tuesday morning at LegalTech New York. But he is still waiting for a case on Facebook?s policies to go before a federal judge to define exactly what content on Facebook is protected so that it?s clearer to everyone. There?s some public misunderstanding about what Facebook?s legal responsibilities are to protect user?s privacy, he said. ?We don?t want to have to deal with these requests.?

The hugely popular social networking site is loath to hand over any information on its 350 million users without a subpoena, and even then the company will only provide basic subscriber information unless that user gives his or her consent, Howitson says. The Electronic Communications Privacy Act, which requires the subpoenas and currently determines Facebook?s legal policies, was passed in 1986, long before the advent of online social networking, let alone the smartphones through which many users access Facebook. A federal hearing could help clear up some of the confusion. ?We?re itching for that fight,? he said.

I?ve heard this from the Facebook General Counsel?s Office?s before, and I can?t tell how much of their shtick is (a) a calculation that being seen as pro-privacy is good for business versus (b) a general frustration that their business model requires them to be governed by a complicated federal privacy law. Either way, stay tuned.

Full post as published by The Volokh Conspiracy on February 03, 2010 (boomark / email).