by Paul Jacobson (@pauljacobson) Facebook’s changes to its Statement of Rights and Responsibilities and its Data Used Policy generally attract a fair amount of attention and consternation. Its latest changes are no exception and while there is reason for some concern, the proposed changes won’t have the radical impact many fear it will. In a post titled “Proposed Updates To Our Governing Documents”, Facebook’s Vice President for Communications Public Policy and Marketing, Elliott Schrage, introduce the changes as follows:
Today we are proposing some updates to two documents which govern our site: our Data Use Policy, which explains how we collect and use data when people use Facebook, and our Statement of Rights and Responsibilities (SRR), which explains the terms governing the use of our services. These updates provide more detailed information about our practices, reflect changes to our products, and improve how we conduct our site governance process.
Changes to the Statement of Rights and Responsibilities
The most significant change to the Statement of Rights and Responsibilities (this is what Facebook calls its service terms of use) is the proposed removal of a participatory which it introduced in 2009 which notionally gave users the opportunity to vote on proposed changes to Facebook’s governing legal frameworks. This voting mechanism provided that if more than 7000 users –
… post a substantive comment on a particular proposed change, we will also give you the opportunity to participate in a vote in which you will be provided alternatives. The vote shall be binding on us if more than 30% of all active registered users as of the date of the notice vote.
The proposed changes are being put to a vote in terms of this existing voting mechanism and this will be the 3rd, and quite possibly the last, 
vote under this particular framework. In a sense, it’s not surprising that Facebook has made the decision to remove this mechanism (although it is unfortunate given that Facebook has not made a substantive effort to publicise votes in the past). The 1st vote introduced this voting mechanism and the 2nd vote took place in June 2012. According to Ars Technica, both votes “had a turnout of well under one percent of Facebook’s user base”. Facebook only announced the votes on its blog and on its site governance page so that poor turnout was not unexpected. In addition, it’s probably fair to say that most users don’t take an interest in Facebook’s governance except where there is a flareup in the media.
Granted, Facebook’s threshold for the votes was fairly high when the mechanism was initially introduced and, with roughly 1,000,000,000 users, a 30% vote represents a substantial number of Facebook users taking an interest in the changes being voted on and voting in one or another direction. That said, the mechanism represented a degree of participation in Facebook’s governance which was, and remains, largely unprecedented on the Web. In its place, Facebook proposes a 7 day notice period for substantive changes to its governance frameworks although Facebook will not notify users of changes “for legal or administrative reasons, or to correct an inaccurate statement”. The “legal or administrative reasons” category is somewhat vague and it remains to be seen just what sorts of changes this includes.
Other changes to the Statement of Rights and Responsibilities include a clarification of the prohibition on using your personal timeline for your own commercial gain by qualifying that with an allowance for some commercial gain as long as your use is not “primarily” for your own commercial gain. Facebook requires you to use a Facebook Page for commercial use.
The proposed changes to the Statement of Rights and Responsibilities has prompted a hoax on Facebook where Facebook users are encouraged to publish certain notices including the following one:
In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berner Convention). For commercial use of the above my written consent is needed at all times!
(Anyone reading this can copy this text and paste it on their Facebook Wall. This will place them under protection of copyright laws By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook’s direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).
Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates
The proposed changes to not affect the licensing provisions in these terms and conditions and this notice which some Facebook users are publishing in the hopes that this will restrict how their content is used on Facebook will not have any impact on the licence which they have already granted to the service and which is recorded in the Statement of Rights and Responsibilities –
For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings : you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
Changes to the Data Use Policy
Facebook’s Data Use Policy is a substantial document of 16 pages. It describes what personal information Facebook collect from its users and what it does with their personal information. It is a particularly important document which most users have probably not read and the proposed changes are interesting to say the least. In some respects, the changes clarify the existing wording and, in others, they will expand the range of uses that Facebook already has in respect of users’ personal information. Although the proposed changes don’t specifically refer to Instagram, the proposed changes reference Facebook’s affiliates and include the following addition:
We may share information we receive with businesses that are legally part of the same group of companies that Facebook is part of, or that become part of that group (often these companies are called affiliates). Likewise, our affiliates may share information with us as well. We and our affiliates may use shared information to help provide, understand, and improve our services and their own services.
The implications of this proposed change of that Facebook may make use of personal information which it collects through services like Instagram, which it owns, and make use of that personal information within the Facebook service itself.
Facebook also proposes removing a similar voting mechanism in the Data Used Policy and replacing it with a 7 day comment period and simple notice of changes being made to the Policy.
Generally speaking, the Data Used Policy highlights just how much personal information Facebook collects, how it collects all of that personal information and just how important it is that users take an active interest in the privacy controls which Facebook makes available to them in order to better control how much of their personal and profile information can be shared across the service. These proposed changes have inspired another preformatted status update which users are publishing in the timelines –
To all my FB family and friends: I want to stay PRIVATELY connected with you. However, with the recent changes in FB, the “public” can now see activities in ANY wall. This happens when our friend hits “like” or “comment” ~ automatically, their friends would see our posts too. Unfortunately, we cannot change this setting by ourselves because Facebook has configured it this way.
PLEASE place your mouse over my name above (DO NOT CLICK), a window will appear, now move the mouse on “FRIENDS” (also without clicking), then down to “Settings”, click here and a list will appear. REMOVE the CHECK on “COMMENTS & LIKE” and also “PHOTOS”. By doing this, my activity amongst my friends and family will no longer become public.
Now copy and paste this on your wall. Once I see this posted on your page I will do the same for you.
As with the bogus copyright notice which I mentioned above, this privacy notice has no impact on the permissions a user grants Facebook through the Data Use Policy. It also reveals an ignorance about how many of Facebook’s privacy controls actually work. This particular notice attempts to address one of the truisms about sharing information through Facebook. When you read the Data Use Policy one of the things that stands out is that a user’s ability to control personal information and updates shared on Facebook is hardly absolute. The only way to relatively effectively control which of your updates and personal information other users may see and share is to make judicious use of the privacy and sharing controls in your profile settings. One of the cautions Facebook includes in the Data Used Policy (and this is an addition to the Policy) is the following –
When you hide things on your timeline, like posts or connections, it means those things will not appear on your timeline. But, remember, anyone in the audience of those posts or who can see a connection may still see it elsewhere, like on someone else’s timeline or in search results.
The Policy also points out that information shared with 3rd party applications and services through Facebook is not automatically removed when you start making use of those applications or services and, further, even if you request those applications or services to remove your personal information, they may retain your personal information in order to comply with some or other compliance requirement of their own. The service also shares a considerable amount of your personal information with a variety of parties including other users and your Facebook friends for various reasons which are variations of “improvements” to your experience of the service.
The proposed changes to the Data Use Policy will not radically change the Facebook privacy model. It is fairly permissive and broad already. What it highlights is the cliche that if you are not paying for a service then you are the product. This has, however, almost always been the case with Facebook.
– Paul Jacobson is founder and director of Web•Tech•Law. Web•Tech•Law / CC BY-SA 2.5
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