Marcia Hofmann, EFF: Facebook Ploy to Criminalize Add-On Service Hurts Users and Innovation

January 23, 2012

The Electronic Frontier Foundation (EFF) urged a district court judge Tuesday to block Facebook's attempts to criminalize an add-on service that helped users aggregate all of their social networking data in one place.

Power Ventures created a web-based tool to let users view information from different social networking accounts in the same browser window, enabling them to get a complete picture of what's happening across various platforms. Facebook has been trying to kill the service for several years and is currently claiming that criminal computer intrusion laws were violated when Facebook's users logged into their Facebook accounts automatically using Power's aggregation tool. In an amicus brief filed Tuesday, EFF argues that Facebook's claims are wrong legally and dangerous as a matter of policy.

"Facebook wants to prevent users from choosing follow-on innovation that it doesn't like, so it's asking the court to broaden computer crime laws in ways that would let it manufacture and cherry-pick lawsuits against users and competitors," said EFF Senior Staff Attorney Marcia Hofmann. "Facebook's position would create legal uncertainty for tech start-ups everywhere, stifling innovation and competition. No one would want to challenge a behemoth like Facebook with the specter of criminal charges looming over interoperability."

The court has already recognized the danger of criminalizing violations of a website's terms of use. But now Facebook makes an even broader claim: that the mere design of a tool can violate both the Computer Fraud and Abuse Act (CFAA) and California computer crime law if it might be used to circumvent a technical block later. Facebook also demands a staggering $18 million in damages because Power gave Facebook users an option to use Facebook's "event" feature to invite friends to try Power's service. Facebook claims that feature -- by Facebook's own design -- violates the CAN-SPAM Act.

"Under its CAN-SPAM theory, Facebook -- or any other designer of a 'captive' email system -- could design a system that fails to meet CAN-SPAM and then claim that any commercial event notification is a violation of federal law," said EFF Legal Director Cindy Cohn. "This is an outrageous and dangerous misuse of the law, especially in this age of social networks and internal messaging systems. We're asking the court to reject it."