Liberté, égalité, Facébook

February 24, 2009

The concept the bloggers are entitled to rights – either those of a citizen or something above and beyond that – seems to be taken for granted. A significant problem with articulating this discussion is that the medium is biased: if you’re reading this you’re probably already interested in bloggers and most likely a blogger yourself. It follows that you might want to have some rights.

I’d like to talk about the legal and historical precedent for this argument because, quite frankly, it doesn’t have much going for it.

We’re all familiar with the abridged history of individual rights and liberties. High school American history classes tend to imagine a broad “arc of history,” starting with the Magna Carta, leading up to the French Revolution, Enlightenment philosophy, and culminating in the United States Constitution and the Bill of Rights.  The idea of rights having universal applicability, however, is a surprisingly modern concept that wasn’t  enshrined until Eleanor Roosevelt’s Universal Declaration of Human Rights was ratified in 1948. Still, that document has little force and some of the rights enumerated seem rather utopian or naive.

For example, free speech is an important facet of the United States’ Bill of Rights, but few other countries have institutionalized a broad degree of respect for this idea – Britain, for example, has not. Even in the States, few states have enacted shield laws to protect mainstream journalists from prosecution. In this legal environment, the idea of creating a legal structure to protect anonymous, electronic expression around the world seems daunting.

Privacy, another important arena for online rights activists, is even trickier. How many times is privacy referred to in the United States Constitution? The answer – dramatic pause – is zero. The so-called “right to privacy” is a flimsy piece of legal precedent that’s existed for less than fifty years and is so narrowly defined that it seems ill-fitted to adapt to the realities of the internet.

I started thinking about all of this after reading about a recent tiff over a revision to Facebook’s terms of service that raised a lot of concerns about privacy rights online. It’s not the first time Facebook has overstepped its massive user base’s comfort level, but when a blog called Facebook out for abrogating any sense of privacy or individual ownership on its networks, the company had to make an about-face on its terms of service. The changed that touched off the argument was to remove the following clause from the end of the agreement:

You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content.

Users protested en masse and left the popular site in droves. So what did Facebook do? In a blog post from its founder,  Facebook announced it would include users in a discussion about what its terms of use should reflect. As far as Constitutional Conventions go, this one is rather hectic and the discussion so far seems to be more chaotic than productive.

Yet I think the move is significant; the Facebook incident may be a harbinger of how internet rights evolve. In practice, online rights so far have been protected by customary law – not really law at all. Facebook’s users and its owners have an unspoken social contract: keep the terms of use reasonable, or we’ll leave. The users have no recourse aside from boycott, but the entrenched powers that be at Facebook seem to have realized that institutionalizing this contract might be in their interest. This is an important step: law is built on precedent and agreement on a shared set of written guidelines. This, to me, is a sign of a nascent, organic system of legally protected online rights.

Bloggers, users of social networks, and internet users generally tend to assume that their interactions online are private. Unfortunately, this is rarely the case. Government seems uninterested in the issue. Bloggers aren’t going to have their “rights” handed to them on a silver platter and if they want them, they’re going to have to do more than ask nicely.

– Patrick R.

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