Facebook Banishment and Due Process

Daniel Solove
Founder of TeachPrivacy

Facebook 01

Recently, I was talking with David Lat, author of the blog Above the Law, and he was complaining about being banished from Facebook. David was an active user of Facebook, and he suddenly and inexplicably found himself banned from the site. Facebook didn’t supply him with any reason.

I found the issue quite intriguing, and David said I could blog about it. In particular, what makes this issue of interest to me is how it applies more generally to Web 2.0 applications. With Web 2.0, people invest a lot of time creating profiles, uploading information, and so on. And they start to depend upon these applications in their lives.

David also said he has a lot of important information on his Facebook profile. He uses it as a way to communicate with people, and he uses it to help him gather information for use in his blogging. So being kicked off Facebook is a big deal to David. It can impact his job. It can also impact his friendships and professional relationships. For example, David told me he received emails from several friends who wondered where he had gone. They thought David might be ignoring them or might no longer be their “friend” on Facebook.

As more of our lives become dependent on Web 2.0 technologies, should we have some sort of rights or consumer protection? Is Facebook the digital equivalent to the company town?

David checked Facebook’s website, which has a FAQ about disabled accounts. Facebook states:

Your account was disabled because you violated Facebook’s Terms of Use, to which you agreed when you first registered for an account on the site. Accounts can either be disabled for repeat offenses or for one, particularly egregious violation.

Facebook does not allow users to register with fake names, to impersonate any person or entity, or to falsely state or otherwise misrepresent themselves or their affiliations.

We do not allow users to send unsolicited or harassing messages to people they don’t know, and we remove posts that advertise a product, service, website, or opportunity.

Our Code of Conduct outlines the types of content we do not allow on the site. This includes any obscene, pornographic, or sexually explicit photos, as well as any photos that depict graphic violence. We also remove content, photo or written, that threatens, intimidates, harasses, or brings unwanted attention or embarrassment to an individual or group of people.

David insisted that he didn’t do any of the things above. Can he see the allegedly offending content that got him banned? Facebook’s answer in the FAQ comes from the pen of Franz Kafka:

Unfortunately, for technical and security reasons, Facebook cannot provide you with a description or copy of the removed content.

One blogger writes :

Facebook is shutting down accounts of users who are exhibiting any behavior it finds remotely suspicious. As paradoxical as it sounds, “suspicious” often means just using the site too much! Sometimes they warn people and give them the chance to change their behavior, and sometimes the account termination is sudden and permanent. Most of the time the disabled accounts will be turned back on, whether automatically after a cool-down period, or after prostrating yourself to the FB authorities. But sometimes they’ll lock it up and throw away the key.

Facebook remains intentionally vague about what “bad behavior” looks like, and so it’s no wonder that people get confused, angry or despondent when they get the ACCOUNT DISABLED message.

Apparently, you can email Facebook to “appeal” being kicked off, but there are no guarantees that you’ll be given any sort of reason, or hearing, or fair adjudication process. For some banned users, Facebook will inform them of their crime. David said he emailed Facebook and that he only received an email confirming receipt of his query. Since then, he hasn’t heard anything more from Facebook.

But Facebook doesn’t have any obligation to tell David anything. Facebook’s Terms of Use provide:

The Company may terminate your membership, delete your profile and any content or information that you have posted on the Site or through any Platform Application and/or prohibit you from using or accessing the Service or the Site or any Platform Application (or any portion, aspect or feature of the Service or the Site or any Platform Application) for any reason, or no reason, at any time in its sole discretion, with or without notice, including if it believes that you are under 13, or under 18 and not in high school or college.

In other words, you exist on Facebook at the whim of Facebook. The Facebook dieties can zap your existence for reasons even more frivolous than those of the Greek gods. Facebook can banish you because you’re wearing a blue T-shirt in your photo, or because it selected you at random, or because you named your blog Above the Law rather than Below the Law.

On the one hand, this rule seems uncontroversial. After all, it is Facebook’s website. They own their site, and they have the right to say who gets to use it and who doesn’t.

But on the other hand, people put a lot of labor and work into their profiles on the site. It takes time and effort to build a network of friends, to upload data, to write and create one’s profile. Locking people out of this seizes all their work from them. It’s like your employer locking you out of your office and not letting you take your things. Perhaps at the very least banished people should be able to reclaim the content of their profiles. But what about all their “friends” on the network? People spend a lot of time building connections, and they can’t readily transplant their entire network of friends elsewhere.

Suppose Facebook didn’t have any kind of system for appeal when a person got banished. Should the law force it to have some kind of appeal system? One might argue that perhaps the market will work it out — if people want an appeal system, then they’ll choose the social network website or Web 2.0 application that has one. But in many contexts (though not all contexts) people rarely think about the procedures companies have for when things go wrong. This is often not a consideration in making a choice, so it might not generate enough competition in this regard.

As more people use Web 2.0 applications, they are increasingly encouraged to invest an incredible amount of time and effort in them. Facebook wants and encourages people to put up information, to build one’s network, and so on. Given people’s investment in these applications, should they be granted any kind of rights or protections in using them?

UPDATE: David Lat finally heard back from Facebook. He was banished because he “posted parts of a user’s profile to another website, which is a violation of Facebook’s Terms of Use.” Facebook reactivated David’s account, so the story has a happy ending. All’s well with the world.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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