Don’t just close your eyes and leap: top five issues in the Facebook terms of use

As we have helped businesses launch their exciting, new Facebook Pages, we’ve learned that there are some common concerns with Facebook’s rules. For this article, we have picked out five key issues for your company to consider. Ideally, your company will discuss these issues with your employees before your Page is launched, but even if you already have a Page, it is not too late to reduce your company’s legal risk in several areas.

Issue 1: Did your employee set up a Page, a Group, or a Profile? Hopefully, the answer is a Page.

We will explain the terminology and then the reason why a Page is the best option for business use. Facebook Pages provide a way for “[a] public figure, business, or brand … to share information, interact with their [sic] fans, and create a highly engaging presence on Facebook.”

Private individuals create Profiles to share information with their Friends. Businesses create Pages, and instead of Friends, Pages have Fans. Anyone can create a Group and can set it up to have open or closed membership. Pages have a Wall, where the owner and Fans can, if the owner allows it, post content including comments, photos, and videos. (For an example of a Page with only basic content, check out the Procter & Gamble Page; for a Page with some extra content, check out the Coca-Cola Page.) Unlike a Profile, a Page must be publicly available and must share all content with all Facebook users. Pages can only be created and maintained by an official representative of an organization, and Profiles can only be created and maintained by a private individual. For a number of reasons, businesses will usually want to have a Page rather than a Group. For example, Pages can communicate with an unlimited number of Fans; Group messages are limited to 5,000 people. Page administrators' identities are shielded; Group administrators' identities are disclosed. When the administrator of a Page posts a comment, it appears to come from the company; when a Group administrator posts a comment, it appears to come from that individual. The way this issue can trip up your company is that a Group can never be converted into a Page. If your employee sets up a Group and gets lots of people to join it and sets up a great infrastructure for your company on Facebook, but then your company realizes that it really would prefer to have a Page, it cannot convert the Group into a Page. Its only option is to set up a Page and notify the Group members and have them re-join as Fans – a sure way to lose some people in the process.

Issue 2: Will your company be liable for user-generated content?

Once you launch your Page, Fans may be allowed to post comments, photos, and videos. What if one of those comments, photos, or videos infringes someone else’s copyright? If your company has allowed user-generated content on its main website, it has probably protected itself by complying with the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). It may want to consider protecting itself under the same law on its Facebook Page.

The safe harbor requires your company to provide contact information for someone who can take down allegedly infringing material, to take down allegedly infringing material upon request, and to comply with some other requirements. Generally, DMCA compliance is described in a website’s Terms of Service. If you operate a Page that allows users to post anything at all, you should consider posting a Terms of Service for your Page that includes DMCA compliance, along with the other terms usual for a website that allows users to post content. As of now, most Facebook Pages do not have Terms of Service, partially because Facebook appeared to take responsibility for Pages’ DMCA take-down notices in the past. Facebook’s Statement of Rights and Responsibilities now makes it clear that Pages must have their own DMCA policies.

Examples of Page Terms of Use can be seen on the Coca-Cola Page and the 1-800-FLOWERS.COM Page. Another copyright issue Page owners face is that there are no technological blocks to users taking and re-using all content posted on Pages. This includes your company’s photos, posts and comments, as well as your Fans’ photos, posts and comments.

There are also “Share” links for most items on Facebook, which allow users to repost content to their own Walls in their Profiles, thereby sharing that content with their own Friends. This poses a bit of a copyright conundrum. Under copyright law, if a Fan posts something to your Page, no one can use it in any way except to view it on your Page. Other Fans cannot repost it; you or other Fans cannot incorporate it into other works; you cannot use it in your advertising within or outside Facebook. If the Fan who owns the copyrighted material gets wind of certain kinds of use by others (particularly uses outside Facebook), or simply decides that s/he regrets having shared the material in the first place, you or your other Fans can face liability for re-using the material in ways that are expected within the world of Facebook. You may want to consider including license provisions in your Terms of Use for your Facebook Page. Some Page owners make all materials posted to the Page subject to a Creative Commons Copyright license.


Essentially, that license allows anyone to re-use the material in any way so long as they aren’t making any money directly off of it. Other types of licenses can also be included in Terms of Use for a Page. As for defamatory or other illegal content that users might post, in most cases, your company would be protected by the Communications Decency Act. However, you can remove offensive user posts, and you can set up user rules and expectations in your Page’s Terms of Use to reduce your risk. If you plan to set up a Page that you expect will provoke controversial posts by users, you should discuss this issue with your attorney.


Issue 3: Does your company have to do anything to protect its Fans’ privacy?

Facebook requires a Page to have a privacy policy if the Page “collect[s] user information.” Facebook defines information as “facts and other information about you, including actions you take.” A Page inevitably collects user information when a user becomes a Fan (including the fact that the user has become a Fan, the user’s full name, and, depending on the user’s privacy settings, the user’s profile photo) and may collect additional information (for example, when a user makes a Wall post or posts a Fan photo), so this policy seems to require that all Pages have their own privacy policies. However, currently, most Pages do not maintain privacy policies. In the outside world, the Children’s Online Privacy Protection Act (COPPA) has stringent requirements for websites directed to children under age 13, including that they must have a privacy policy and what that privacy policy must contain. Many activities that are fine offline are restricted online due to COPPA. Furthermore, many sites that are not directed to children choose to have a privacy policy with a statement that they are not directed to children and will delete any information about a child under age 13 that they may have inadvertently collected.


The Federal Trade Commission, which enforces COPPA, has been pursuing violators recently to the tune of over $1 million in fines in the past year, and state Attorneys General also have enforcement authority. A website (or Facebook Page) may expose its owner to liability in all fifty states. “But,” you may say, “Facebook prohibits children under 13 from using the site, and I can age-restrict who is able to see my Page via the Edit Page Settings menu. So why should I worry about COPPA?” Facebook’s age restrictions give only false comfort. Anyone can sign up for the site using any date of birth; Facebook does nothing to verify identities or ages. In addition, people who may or may not be the parents of the children in question post information about children under age 13 often, both in their personal Profiles and on Pages. We have seen, for example, videos of children posted to Pages, with tags or comments containing identifying information about the children. The person posting the video generally says he or she is the child’s parent, but there is no way to verify this within Facebook. A child’s full name alone is enough to trigger a COPPA violation, so the risk of inadvertently violating the law is high, especially for companies whose products are marketed to the under-13 set in the real world.


Privacy considerations bring up one more issue on Facebook related to Issue 1 above: organizations are prohibited from maintaining a Profile instead of a Page. This is for the very good reason that the owner of a Profile has access to a great deal of personal information about any Friend, depending partially upon the Friend’s privacy settings. A Page, however, has access only to Fans’ names, possibly their photos, and the fact that they are Fans, unless the Fan affirmatively chooses to provide additional information. Your organization could inadvertently collect information from Facebook users that it cannot use and does not want, if it maintains a Profile instead of a Page.


Issue 4: Is there anything special your company should consider before setting up an account?

Facebook is not designed for businesses: as the Privacy Policy says, “We built Facebook to make it easy to share information with your friends and people around you.” If nothing else in this post convinces you of this, the rules for administration of Pages via user accounts should. Facebook allows individuals to maintain one of two kinds of accounts: a business account or a personal account. A person’s business account cannot run searches on Facebook and does not have a Profile; it is used only to administer Pages and advertisements on Facebook. A person’s business account can be converted to a personal account by clicking an ever-present “Create Your Profile” button at the top of the page. Once this has been done, the account cannot be converted back to a business account. A person cannot have both a personal account and a business account; as Facebook’s Help section on business accounts says, “[p]lease be aware that managing multiple accounts is a serious violation of Facebook’s Terms of Use. If we determine that an individual has more than one account, we reserve the right to terminate all of their accounts.” Pages are administered via people’s existing personal or business Facebook accounts.


Each Facebook account must be maintained by only a single individual; Facebook’s policies prohibit sharing or transfer of accounts. However, Pages may have multiple administrators. Each administrator has full edit rights and can add or delete other administrators. The only administrator who cannot be deleted is the one who started a Page. So if you have an employee start a Page for your organization, s/he will always have full edit access to your Page, whether the setup is done via a personal or a business Facebook account. In sum: an account set up to start a Page is the property of the employee who sets it up and cannot be transferred to another employee. Multiple employees also cannot administer a Page via the same account, whether it is a business account or a personal account. Employees who maintain both a personal account for personal use and a business account for use in association with maintaining your Page risk losing both their personal and business accounts. Companies are currently grappling with who should be the administrator who starts a Page and whether they need a written agreement with that person to protect the company’s interests. Employees are currently grappling with whether they want to use their personal Facebook accounts to manage projects for their employer and/or their employer’s customers.

Issue 5: Are there any quirky rules of which your company should be aware?

Facebook prohibits users from running contests on Facebook without written permission from Facebook. In our experience, Facebook often takes months to respond to inquiries, if it ever does so. Contests are also subject to the Facebook Promotions Guidelines, which are short, sweet and straight to the point: you cannot promote your contest as being on Facebook, indicate that Facebook has approved or is affiliated with your contest, or administer the contest on Facebook unless it is via an Application on the Facebook Platform. We will save the complicated rules governing Applications for another time. If your company wants to run a contest on Facebook, it will require significant lead time and research to comply with Facebook’s rules.

Conclusion

Business adoption of Facebook is moving at light speed. We hope that Facebook will amend some of its rules to make them more realistic and helpful for business use. In the meantime, companies should work closely with their legal advisors to protect themselves to the greatest extent possible as they leap into the social networking world. The issues we discuss here are based on the August 28, 2009 revision to the Facebook Statement of Rights and Responsibilities (which most sites call their Terms of Use), so please bear in mind that Facebook may have made one of its frequent revisions since the time of our writing. The date of the latest revision appears at the top of the Statement of Rights and Responsibilities page. If you want to stay up-to-date on changes to Facebook’s policies governing users in general and Pages in particular, add yourself as a fan of the Facebook Site Governance Page and the Facebook Pages / Public Profiles Page. (As you will see in the discussion of Issue 4 above, this can only be done via a personal account with a Profile, and not via a business account)

Dorsey & Whitney LLP Jamie N. Nafziger and Kelcey Patrick-Ferree

Child’s Game of “Go Fish” is a Poor Model for e-Discovery Search

Remember the child’s card game Go Fish? You know the one, where each player keeps their own cards secret and tries to guess what cards the others have? You try to get all four of the same rank cards. One player asks another if they have a certain card, such as: do you have any Kings? If that player has any Kings, they have to give them to the requesting player. If not, they say: Go Fish, ha ha, you did not guess right, and then it is the next players turn. (By the way, this game is typically played by very young children.) Based upon the requests one player makes, the other players guess what cards they want. They then try to discard those cards in such a way that the player cannot get to them. The whole enjoyment of the game is derived from not knowing for sure what cards the other players have and from keeping your own card-seeking goals secret. It can take quite a while to guess right and get all four suits of the same rank card. The game goes on until one player wins by only holding four-of-a-kind cards. The game is usually won by the person who is the lucky guesser. There is, to put it mildly, not much skill involved, which is why young kids love the game and older kids don’t.

Most Lawyers Do Search as if it were a Game of Go Fish

I submit that the negotiated key word search model prevalent in e-discovery today uses the same guessing game model as Go Fish. The party requesting ESI guesses what key words might produce evidence to support their case. Do you have any emails that use the keyword “King.” It is necessarily a guess as to what keywords to use because the requesting party cannot see the responding party’s cards. Only the responding party sees all of their own cards, and that is as it should be.

The responding party has a right to privacy. They should not be required to give the requesting party the keys to the server room, the whole deck of cards. The requesting party is either suing the responding party, or being sued by the responding party. Either way, the requesting party should not be permitted to enter and search every nook and cranny of their adversary’s inner sanctum. They should not be granted unfettered access to run ever-more-sophisticated search tools to look for something, anything, that might be incriminating. That kind of fishing expedition has long been prohibited by most courts in the United States. See eg.: Omnicare, Inc. v. Mariner Health Care Management Co., 2009 WL 1515609 at *3 (Del.Ch. May 29, 2009); Hedenburg v. Aramark American Food Services, 2007 U.S. Dist. LEXIS 3443 (W.D. Wash. Jan. 17, 2007). The advances of technology should not be permitted to change that rule. No, the rule must remain, but the game itself should change.

The way the game is now often played, the requesting party also keeps their secrets. They do not want to reveal exactly what it is that they are looking for. But this is, I contend, not as it should be. The requesting player is misusing the paper-world work product doctrine to hide their true discovery intentions. They accomplish this by using broad, general requests. That keeps secret what they really want. They claim a work product right to do so to protect their mental impressions and case strategy. Then they go after what they really want by playing the key word guessing game, both before and after the production. Not all requesters play this way on purpose. This explanation assumes that they have done their home work. It assumes that they know what the issues are and what evidence they need to prove the issues. It assumes that they know what they want, which, for some practitioners, is not always true. Some practitioners have no idea what the real issues are and what they are looking for.

Regardless of the reason for the requesting party’s non-disclosure, this system of discovery by guesses on effective keywords is a model of inefficiency. It may be fun to the players involved, some of whom may reap huge fees in the process, such as the responding party’s lawyers and vendors. It is not, however, designed to get the right cards on the table in the quickest and cheapest way possible. Quite the contrary – it is designed to stretch out the process in an iterative series of negotiated key words and searches. This process involves as much chance as skill.

This kind of approach to the pursuit of truth to attain justice is unreliable and inefficient. The process not only takes too long, the many bad guesses on keywords create a vast quantity of false hits. In the world of information science, that is called poor precision. A ninety percent miss-ratio is not uncommon. That is, for every ten documents that contain the specified keywords, nine are irrelevant, and only one is relevant. This 10% precision rate necessarily results in a tremendous waste of reviewer time. The irrelevant documents retrieved by the search are called false positives. The responding party must then spend a small fortune to screen the many false positives for relevance and privilege.

The Go Fish approach also misses many relevant documents. In the world of information science this is called a poor recall rate. The relevant documents not found are called false negatives. Again, a recall rate of only twenty percent, where eighty percent of the relevant ESI is missed, is not uncommon. This raises questions of the fairness of the process. Can justice be served when only 20% of the relevant ESI is located?

We Need a New Game

We must redesign the game of e-discovery search as it is now commonly played. We should design a new game where the responding party picks the search methods, not the requesting party. In this new game the goal is speedy, just and inexpensive discovery. Get the right cards on the table in a quick, fair and efficient manner. With this goal in mind, it is obvious that the cards should be picked by the person holding them, the responding party. The responding party should design the search strategy, not the requesting party. It is, after all, their hand, and so they can see for themselves what search procedures and terms will work or not.

In order for this new game to work, the responding party needs to know what the requesting party is really looking for. What cards do they want? They might be able to find them, but not if they do not know what they are looking for. Thus, for example, if the goal is to find all deuces, then the requesting party should specifically say so, rather than request all cards that are less than 5. Thus, in this new game the requesting party must show their hand first, they must explain what they need and why. Both sides need to discuss and narrow the issues and be frank and open about discovery. Then the responding party can then look at their own cards and see which are responsive to the defined issues. This approach is consistent with the goal of this new game: both sides work together to find the cards that the requester wants and get them on the table as fast as possible.

This new game can only work if the search is controlled by the responding party. It is, after all, their data, their IT systems, their data custodians, their employees, their agents, their attorneys, their language, their retention policies, their retention practices, etc. The responding party is not blind like the requesting party. They are in a far better position to design the culling and search strategies, including key words. They are in a far better position to find the information that the requesting party wants. They will know how to find all of the number 2 cards, assuming they have any. The responding party may still find nothing and say Go Fish. But the process will be much faster and less expensive than iterative Blind Man’s Bluff keyword negotiations.

The game as played now forces the blind man to make hundreds of guesses at a time, hundreds of key words, hoping that a few might be right. This hurts the respondent who has to review all of the junk generated by the blind guesses. It hurts the requester too, who eventually has to review all of the relevant and marginal calls. It is a colossal waste of time. It is inefficient even if the requester is given several guesses, not just one, and does some refining and talking in between the turns. That only makes the process slightly less wasteful.

Bottom line – we need to stop fooling around with search in e-discovery. That means taking the blindfolds off, but more fundamentally, it means redefining the goals of the game of discovery itself. All too often the goal of discovery today is to try to take your adversaries secrets, but keep your own. Lawyers try to win a case by discovery. Perhaps because they have so few trials, they lose track of the fact that discovery is not supposed to be an end in itself. It is just supposed to be a preparation for trial.

Trial is the time and place for the adversarial process and arguments, not discovery. Many litigators today forget this. They focus instead on a game where they try to only show their good cards, the ones that support their positions. Conversely, they try to keep secret all of their bad cards, the ones that undercut their positions or support the opposition’s positions. For them the goal of discovery is to put only their good cards on the table and keep their bad cards face down in the discard pile.

Today’s paradigm of negotiated search terms perpetuates that adversarial discovery model. It encourages feigned cooperation where each side secretly hopes that the other side will guess wrong. For if that happens, and bad search terms are picked, they will not have to show their bad cards. They can manipulate and hide the truth.

The New Game of Discovery is Won when Completed with Enough Money Still Left for Trial

This perverse game of selective disclosure might have worked in the paper world (although that is debatable), but it no longer works now. We now have a Saganesque number of cards – billions and billions. No one can afford to play this game any more. It should be obvious by now that if you play this game, you will quickly run out of time and money for the real game – the true purpose of litigation – a trial on the merits. How else do you explain a 96% settlement rate in federal court? Yes, trials are expensive. But if discovery were to cost less than it does now, perhaps far less, then there would be adequate resources remaining after discovery to conduct a trial.

Under the new cooperative based, producer-search-driven discovery here proposed, the trials themselves would also become simpler and more streamlined. If lawyers did not play the old games of truth manipulation, and just let the chips fall where they may, many unnecessary side issues would fade away before trial. When bad facts come out early, pseudo-issues go away early too. This inevitably results in fewer issues remaining for trial. Thus if discovery was changed as here recommended, the cost of trials could also be reduced.

The new goal here proposed for discovery is to find and place all of the important cards on the table as quickly and efficiently as possible. This requires cooperation and transparency on both sides. It requires the requesting party to explain what cards they want and why. It also requires them to make precise and narrow requests directed to specific, important issues in the case.

This new game also requires cooperation and transparency by the responding party, moreover it requires their initiative and leadership. The responding party can no longer just sit back and watch poor guesses being made. They must take the lead in getting the truth out. This is a burden, but the responding party is more than compensated for this burden by the protection this provides from over-broad, expensive, inefficient search. It also protects the responding party from having to show their whole deck of cards, their entire ESI collection. The protection of privacy rights is an important factor to many.

The party responding to requests for production must be proactive. They must design the search. As discussed, this only makes sense because it is their data. They have unfettered access to it. They know the language. They know the people involved. For these reasons, the responding party is always in the best position to search the data and, if asked, to fully explain how and why the search met the needs of the requesting party. The process must be transparent. It must also be performed competently. This may sometimes require the employment of experts and search design specialists.

Once the cards responsive to the request are found, they all have to be disclosed, the bad as well as the good. The only exception is privileged documents, which are logged. Honesty and good faith are critical in all discovery processes.

The process may still sometimes be iterative. A careful study by the requesting party of the ESI received may lead to new goals, new issues, and new more focused requests. But still, two fast, focused searches beats one long, over-broad search any day.

This is a new discovery game where both sides win if they complete discovery on time and under budget. This is restrained discovery where the parties only search for the facts they really need. This is discovery where all of the facts are freely disclosed, not just the ones that help your position. This is discovery that typically ends when the budget is exhausted, not the attorneys. For we all know that attorneys are hard working and capable of billing a mind boggling number of hours. These long hours will end in this new game because attorneys will no longer have to try to shape the truth. They will instead cooperate to put the truth on the table. They will save their arguments for what the facts mean under the governing law. This is cost-conscious, proportional discovery where, once completed, sufficient resources still remain for a trial on the merits.

This new game of discovery that I propose, along with many others, is designed for trials, not perpetual preparation. It is a model for those who want to fish, not just “cut bait.” It is a model for all true trial lawyers.

The new rules proposed here apply equally to plaintiff and defendant. Discovery is and will continue to be a two-way street. Both parties will have to find the cards that the other side is looking for. Then, they must put their cards on the table; good, bad or indifferent. If the cards do not exist, and this may happen often, the producer will have to explain exactly what they did. They will also have to remain open to additional searches.

Conclusion

I propose that producing parties always take the lead in the search of their own information. This does not mean that the requesting parties should do nothing and just accept with a smile whatever is handed to them. They will have a seat at the table. They will be heard, but clairvoyance will not be required. I propose a collaborative, transparent process where unnecessary application of the work product doctrine is curbed in favor of efficiency.

Indeed, although the responding party can see-all and thus must lead the search, the requesting party should always still play a key role. First of all, they have to fully describe what their Waldo looks like. In discovery each issue has its own Waldo and its own ideal search methodology to find him. There are recurrent patterns, especially where the responding party has gone through the drill many times. Yet there is rarely a one-size-fits-all search strategy, any more than there is a one-size-fits-all legal strategy.

The requesting party can, if they wish, make more contributions beyond describing their Waldos. The producing party may seek their advice. The requesting party may sometimes have far greater search expertise. Even if they do not, they may still have some good ideas and be able to contribute to the search process.

A leader with vision does not mean a dictator, nor does it imply blind obedience. The responding party should lead, but should also explain everything they did, or plan to do. They should be willing to answer all questions and to ask questions. They should be willing to listen if the other side has something to say. They should be open to constructive suggestions.

If the requester is not cooperative, the responder should also be willing to assume risks. The responding party should be ready and willing to go on their own if need be. They should be ready to explain everything to the supervising judge. The judges can help make this new game work, especially in circumstances of an uncooperative requester. The courts can do this by affirming all reasonable search efforts, absent only a showing of bad faith.

This new game is not a competitive game where one side wins and another loses. Either they both find Waldo or they both lose. The win-lose part of the process comes next. It comes after discovery when the case is decided by summary judgment or tried before a judge and jury. That is the way it should be. Neither discovery nor mediation are adequate substitutes for adjudication.

The new game of discovery here proposed implements strategic cooperation. In this way we can regain our adversary system of justice. We can start doing trials again, instead of playing endless rounds of Go Fish.

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I look forward to your comments and help in flushing out the details of this proposal. Please leave a comment below. This is just the beginning. No doubt I have missed some issues and may have gotten a few wrong. What do you think?