My Delusional Dream

On the Facebook Terms of Service

Recently I’ve seen a number of friends and acquantences post some variation of the following message to their Facebook walls:

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 Berne Convention). For commercial use of the above my written consent is needed at all time.

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 content. 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 If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status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 intent of these postings is to limit the way that Facebook is legally allowed to use or share your information. On the one hand this makes me happy because it seems as though some people are taking their privacy seriously, on the other hand, it’s very frustrating because of the ham-fisted way people are going bout this.

The crux of the problem is that the Facebook Terms of Service supersede any declaration or addendum you attempt to make toward Facebook. Specifically clause 19.5:

Any amendment to or waiver of this Statement must be made in writing and signed by us.

However, you might think there is a loophole that will protect you somehow. Maybe something that Facebook forgot to expressly enumerate. Sorry, that’s covered in clause 19.10:

We reserve all rights not expressly granted to you.

As an additional level of backup the posts typically attempt to cite various portions of the Uniform Commercial Code, most often Article 1. First, it’s important to understand what the UCC is. It is NOT some overarching set of Federal Laws. The UCC is an attempt to harmonize various state laws and make it easier to do business across state lines. In some ways you can think of the UCC a little like the Talmud, the text is important, but so are the comments that go along with it. Unfortunately, the text and comments are copyright, so these semi-binding documents are not accessible to the common man (that’s a whole different problem, one which Carl Malamud and Public.Resource.org are attempting to remedy.

Anyway, we’ll ignore for a moment that the entirety of Article 1 of the UCC deals with definitions and ways to interpret further rules, and therefore probably isn’t the thing you’re looking for. The first reference, UCC 1-308 (which is often mistyped 1-308-308, which renders it null in the eyes of the law) reads:

§ 1-308. Performance or Acceptance Under Reservation of Rights.

(a) A party that with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as “without prejudice,” “under protest,” or the like are sufficient.

(b) Subsection (a) does not apply to an accord and satisfaction.

However, the issue with 1-308 is that your Facebook content, while being a creative work, isn’t a performance in most cases. There isn’t a transaction from Facebook unto you for performing such an action, therefore this most likely doesn’t apply.

Second is UCC 1-103, I have no idea how this got mixed up in here:

§ 1-103. Construction of [Uniform Commercial Code] to Promote its Purposes and Policies: Applicability of Supplemental Principles of Law.

(a) [The Uniform Commercial Code] must be liberally construed and applied to promote its underlying purposes and policies, which are: (1) to simplify, clarify, and modernize the law governing commercial transactions; (2) to permit the continued expansion of commercial practices through custom, usage, and agreement of the parties; and (3) to make uniform the law among the various jurisdictions.

(b) Unless displaced by the particular provisions of [the Uniform Commercial Code], the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and other validating or invalidating cause supplement its provisions.

Reading through this I can’t understand why 1-103 was even brought into this. It’s a simple description of the UCC and highlighting that unless the UCC attempts to supersede laws for things like fraud, duress, and bankruptcy, that they stay in effect.

Finally, let’s look at the appeal of the Rome Statute. I’m going to out on a limb here and say this was added by someone in Europe as the original postings I saw by Americans didn’t include this caveat. I’m assuming that the Rome Statute refers to the Rome Statute of the International Criminal Court. This international agreement established the international criminal court and gave the UN authority to investigate crimes when the host nations have chosen not to investigate. For example, the ICC often comes into play with state sponsored genocide.

One could easily argue that the United States has initiated investigations in privacy and Facebook (see the Senate Judiciary Committee Subcommittee on Privacy, Technology and the Law meeting on July 18, 2012 when Franken tore into Facebook’s manager of Privacy and Public Policy). The fact that the US is conducting investigations would seem to disallow the ICC any sort of jurisdiction. would therefore make such an investigation outside the bounds of the International Criminal Court — which really has non-first-world-problems to deal with, like genocide.

In short, if you’re really concerned about your privacy posting such a message on Facebook doesn’t do anything other than annoy your friends. If you’re really concerned about your privacy on Facebook you need to stop using it altogether.

Important Disclaimer: I am not a lawyer. I’m merely someone who took the time to read the Facebook Terms of Service and look up the relevant portions of the law that people are attempting to quote. None of this should be regarded as real legal advice.