Facebook Privacy Terms of Service

Law of Social Network Profiles and Tracking

Law, Divorce & Online Records Investigations

Privacy advocates such as NYU professor Clay Shirky argue people should be entitled to a degree of privacy for their postings in social networking sites like Facebook and Flickr. They argue employers (for example) should not as a matter of public policy be trolling these sites to spy on employees or prospective employees. See this video.

Post Banners and Terms of Service

Here's an idea: People could post legal terms of service on social networking pages declaring that employers and prospective employers are forbidden from looking at or copying from the pages or tracking people from there. Such terms would be like No Trespassing signs on land, or end user license agreements (EULA) on software. Some case law supports the notion that terms posted on a web site can restrict the right of visitors to gather information from the site. (See also Mark Rasch's discussion of web terms-of-services cases and my legal analysis of privacy contracts with robots.)

Arguably, if an employer grabs information off of a site in violation of posted terms, and that leads to termination of an employee, then the employee could sue the employer for violating the terms of the web site.

Like Footer At Bottom of Email

Note that the idea of posting privacy terms of service on a web page is similar to the accepted practice of placing a confidentiality notice at the footer of an e-mail.

Even if the terms are not legally binding on the employer, they could be ethically binding. An ethical obligation can be more than high-minded hot air. It can carry substantive implications. For example, suppose Bob posts a prominent notice on his MySpace page that his employer may not view the site. Suppose further that the employer ignores the notice, looks at the page, doesn't like what it sees, and fires Bob. The employer might be poisoning its relationship with its entire employee population. Many employees may feel the employer had crossed a line it should not have crossed. Moreover, many customers and suppliers of the employer might feel the same way when they learn about Bob's plight.

If Bob's employer falsely denies having seen Bob's terms, computer forensics could prove the employer wrong, just as it sometimes can uncover or explain impersonation or identity theft when it is committed on social sites.

--Benjamin Wright

 Mr. Wright teaches cyber defense, e-discovery and investigations law at the SANS Institute.

P.S. Facebook's terms of use limit what investigators, who are collecting evidence, can do.

Update: Trial lawyers are scrutinizing social network pages to decide who they do and do not want on a jury.

Another Update: A person in divorce proceedings with an estranged spouse might post terms on a social networking page stating that the spouse and the spouse's agents/attorneys may not access the page and agree not to use anything available on the page. Or, a social network denizen may desire to post terms that tell insurers or lenders to shoo.

Nothing I publish publicly is legal advice for a particular situation, but the foregoing is something to think about.  If you need legal advice, you should consult your lawyer.