Facebook now a Nanny State

Facebook private messages are governed by the Electronic Communications Privacy Act, which forbids communications providers from intercepting user messages, barring limited exceptions for security and valid legal orders.

While the sniffing of e-mails is not unknown — it’s how Google serves up targeted ads in Gmail and how Yahoo filters out viruses, for example — the notion that a legitimate e-mail would be not be delivered based on its content is extraordinary.

Facebook chief privacy officer Chris Kelly acknowledged that the site censors user messages based on links. But he insisted that Facebook has the legal right to do so, because it tells users they cannot “disseminate spammy, illegal, threatening or harassing content.”

“Just as many e-mail services do scanning to divert or block spam, prevent fraudulent, unlawful or abusive use of the service — or in the case of some services, to deliver targeted advertising — Facebook has automated systems that have the capability to block links,” Kelly said in an e-mail. “ECPA expressly allows Facebook to operate these systems.”

“The same automated system that blocks these links may also be deployed where there is a demonstrated disregard for intellectual property rights,” he added.

Facebook declined to answer questions about whether it similarly searched private messages for references to illegal drugs, underage drinking or shoplifting.

EFF lawyers suggested that the legality of Facebook’s censorship turns on Facebook’s Terms of Service, how and when the blocking takes place, and whether the messaging system affects interstate commerce (thus giving the federal government jurisdiction).

It’s not clear, however, how links to torrents are spammy, harassing or illegal. Torrents themselves are not copyright-infringing, nor would Facebook be liable for their users’ communications under federal law even if the files were infringing.