November 8, 2007

Facebook’s New Ad Platform Illegal?

Duncan Riley

47 comments »

We’ve already seen a backlash against Facebook’s Social Ads platform, however something far more serious may get in the way of Mark Zuckerberg’s quest for social networking domination.

According to the NY Times, Facebook’s Social Ad platform may be illegal in New York under a 100 year old privacy law that states that “any person whose name, portrait, picture, or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained” can sue for damages, and doing so is a criminal misdemeanor.

Facebook unsurprisingly are suggesting this isn’t the case, arguing that William McGeveran, the professor at the University of Minnesota Law School who came to the illegality conclusion, is taking the law too broadly. Facebook say that it would be difficult for someone used in these ads to argue against the use given they will have already identified themselves publicly, implying consent.

Whilst the lawyers can sort out the legality of Facebook’s advertising program now, the real risk for Facebook is that given the growing backlash certain jurisdictions may enact laws that outlaw Facebook’s program. Concern about privacy online isn’t new; who doesn’t remember the Government mudslinging when Google launched Gmail. The question is whether States or even the United States Government will care enough to do something about it. The chances are unlikely; law makers are far too busy trying to pass laws that would see the US Government sue Bit Torrent users to care about the privacy of those very users, but you never know.

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The Drama 2.0 Show

November 8th, 2007 at 11:15 pm

Michael Gracie

November 9th, 2007 at 9:43 am

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Ryan Merket

November 8th, 2007 at 9:42 pm

or voice? what about all those radio ads? voice overs? this is ridiculous.
Tyler

November 8th, 2007 at 9:52 pm

Hmm.. that’s an interesting development. I wonder if companies (based in NY) will use something like Beacon before this is proved to be 100% legal as is could pose as a risk to them.
Hashim Warren

November 8th, 2007 at 9:57 pm

Facebook!
Foo Fooly

November 8th, 2007 at 9:57 pm

Um… have you ever thought of using spellcheck? This is the most unprofessional blog post I’ve seen here.
Clayton Roche

November 8th, 2007 at 10:00 pm

haha, yeah I agree with Foo Fooly… I only came to post that “law to broadly” should be “too”
Duncan Riley

November 8th, 2007 at 10:17 pm

actually
it was too originally, my 2 spell checkers + a commercial grammar checker dropped it to to…and I didn’t notice, my bad + fixed.
Aurelius Tjin

November 8th, 2007 at 10:28 pm

Thanks for the update man, its really important that we know the legal repercussion of things.

Well, as to spelling, we do have oversights at times, its actually forgiveable Duncan. Good post.
Chris

November 8th, 2007 at 10:35 pm

If people don’t like it then don’t use Facebook! I hate this kind of crap. People want everything for free, and then moan when the owner wants to actually make some money on the side. From gmail all the way on down - if you dont like it then don’t use the program.
Duncan Riley

November 8th, 2007 at 10:50 pm

Thx Aurelius
Jesse

November 8th, 2007 at 10:59 pm

Supposedly you can block facebook.com/beacon in your browser. Someone posted the how-to on Digg earlier today.

8 - Chris, you have to admit facebook is crossing the line with beacon.
www.carversation.com

November 8th, 2007 at 11:48 pm

The Drama Continues, now we gonna hear about facebook even more.
chrisco

November 9th, 2007 at 12:12 am

Here’s how to block Beacon, apparently:
http://www.ideashower.com/blog.....ok-beacon/
Abdallah

November 9th, 2007 at 12:32 am

I find that Facebook must be shut, it wastes a lot of users’ times, and it is illegal in some means and it has many problems
pedro

November 9th, 2007 at 12:54 am

both facebook and opensocial might come upon several problems in this area in europe, where privacy legislation is stronger than in the us. I can also imagine many users stop using social networks if they start feeling anxious about privacy.
Steve Spalding

November 9th, 2007 at 12:58 am

Facebook is fine. Honestly, they don’t have too much more psychographic data than MySpace (in fact, they likely have far less). The problem is that they are the current media darling so anything they do will bring down the rain.

What will be interesting is when they take off the kiddie gloves, people become relatively complacent with Beacon (as they did with News Feed) and we get to see the real direction all this data mining is heading.

Now that will be a lark.
cherry

November 9th, 2007 at 1:17 am

Love your blog

btw your “seen a backlash” link is not working….
memo

November 9th, 2007 at 1:44 am

Correct me if I’m wrong here, but does anyone else have a problem with the fact that my real identity/name is attached to all of this data facebook is attempting to collect???

To google, I am just some random number/ip… and for the most part, entirely untraceable. Sure, they collect data, but its anonymous.

To facebook, I am..well, who I really am - and personally, I find that difference to be a deal-breaker.

in other words, back the F off facebook.
Steve Jabs

November 9th, 2007 at 1:55 am

Everyone whines way too much about the grammar or spelling on here rather than the content. Either way, anyone who complains about either and isn’t running an awesome (money making) blogging consortium can suck it. //Personal Rant

Anyways, here is what I gather from this whole situation:

a.) Personally I believe Facebook is smart in the sense of doing these directed advertising campaigns. I would rather see something that pertains to my interests rather than myspace’s Match.com or whatever dating ads they run.

b.) Users in some respects are correct by saying this is wrong. Correct, we did “VOLUNTARILY” give up information on ourselves. However, that wasn’t to say that we gave it up to have targeted advertising. We gave up a lot of information before they made it publicly clear they were going to use it for advertising.

c.) Users should be smart enough to know when too much is just too much when putting up personal information or pictures of themselves onto a website. Everyone cries wolf when the government wants to invade their personal information and privacy but then again they seem to be more than happy to share that same personal and private information to the world of Facebook.

Like everything else major that Facebook does they gets a backlash. It may last for a week or two, but no one is ever strong enough to just quit the site and give up on their Facebook lives. Everyone has always given in. The newsfeed and the application invitations are the most disgusting things ever. I don’t care enough about any of my Facebook friends to warrant the feed. And I am tired of getting Facebook spam of every terrible application under the sun. The thing is though, no one is going to do anything about it. In three weeks no one will be talking about the ad system on Facebook anymore. They will accept it as a part of their lives and move on.

It’s scary to say… but Big Brother is… IS… Facebook! And sadly no one understands or grasps that concept.
Alex Fedotov

November 9th, 2007 at 3:36 am

As I said earlier I think this is an intervention (and not a ‘divine’ one) into public speech (IMHO). That punchline about sniffing what people are saying about brands in order to monitor ‘mind share’ in particular. It is not against the law, it’s against the spirit of Constitution and amendments.

Also, picture this (every person who had managed any service with public feedback with more than 1mil customers know that I’m not makind this up):

Day 1 : ads are placed on some ‘targeted’ pages and data is being collected.

Day 2 : 90+% of users don’t give a shit. 1% of users who are poor or crazy enough to expect ‘reward’ start saying that “the brand… company… product… (underline) is great!”. TWO or THREE % of people but not less than one particular person start a hate campaign against the brand, USING THE CAPABILITIES OF THEIR SOCIAL NETWORK!

What would you ( BigBrotherbook.com ) do? The only answer is: START CENSORING FORUMS AND MESSAGES. Why? Because YOU ( BigBrotherBook.com ) are PAID by the ‘brand’, you are directly involved, you have direct interest in this company paying you money as long as possible.

That’s how ANY intervention into public speech causes disasters. Every person who was in charge of big crowds of users will tell you that this is true.

Down with BigBrotherBook.com! (You see? I’m one of them too!)
5tacos

November 9th, 2007 at 4:05 am

Definition of Freebie: something that is free (usually provided as part of a promotional scheme - courtesy Google.

Consumers are finicky. You can’t give someone a car and then two weeks later decide, without telling the giftee, that you’re going to put the New England Pest Control blue bug on top of it.

“Free” is a doubled edged sword. People will use because it does not cost anything but it also means that users can leave it without any remorse, especially today since so many startups are in the social networking game.

If users were walked into the decision I think it would be going over much better.

5tacos
http://www.phivetacos.blogspot.com
Anatoly

November 9th, 2007 at 5:15 am

@17 — what are you smoking.. must be some good stuff. Google can cross link between your searches and gmail, as well as all other uses of any of their products (picasa, orkut, opensocial, android, gtalk, etc.). That makes them a far greater threat to individual privacy than facebook will ever be..
RecruitingWire

November 9th, 2007 at 5:43 am

You FaceBook haters, leave the young guy alone. I guess you are all jealous of his success

As they say in England, Mark Zuckerberg, “more grease to your elbow”

Keep up the good work
steveballme

November 9th, 2007 at 6:17 am

…. “a 100 year old privacy law …” lol
My people at Harriers, Choutney, Kambers, Logan, Dunn, Katersios, Schrow and Duloite can rip through something like that in a matter of minutes!
Laws are made to be twisted, molded into that which suits the rich!
You people are soooo clueless!

http://fakesteveballmer.blogspot.com
Grip

November 9th, 2007 at 6:21 am

If you don’t like the way they are using your personal data, DON’T USE THE SERVICE. They have already come out and basically said they will basically just fall short of selling your soul to the devil. All it’s doing is creating more relevant advertising for you. Big deal. These are the same people that were crying about privacy when Gmail first rolled out.
Rajeev

November 9th, 2007 at 6:43 am

Litigation galore, outdated laws in US strange, Back Home in India, Homosexuality and Lesbian are tabbo and illegal, stalking men is not a crime, And India has 27 states and 7 union territories.

Some news for you isn’t it,
Bye Friend,
Since I am a regular reader I expect you give me feed back about my content and blog some day so that my blog stops being a 0 cent blog.
Thak U Sir,

http://tekno-world.blogspot.com
Frank Herrera

November 9th, 2007 at 7:10 am

Right of Publicity/privacy laws differ state by state. Some require written consent while others require implied consent. -Frank Herrera, http://www.trademarkheadquarters.com and http://www.rra-law.com.
Michael Wood

November 9th, 2007 at 7:11 am

Forget if they’re legal - do they work?!

I’ve had a client ad up for a couple of days and after 5000 impressions not one click-through! I accept the ad may not be the best but this clients ads do well on Adwords (and we did make some amendments for the Facebook vibe / audience).

Also the Ad manager is awful…

What are other peoples experiences?
meetingflex.com

November 9th, 2007 at 7:16 am

u bet.
jay

November 9th, 2007 at 7:44 am

easily countered by an addendum to the facebook terms of service. done and done.

fb will probably sneak that into a list of checkbox preferences fifteen long:

“allow this application to share my data for any purpose whatsoever”

: )
Pro-SEO

November 9th, 2007 at 8:06 am

The law surely refers to using someones picture of voice within the advert, Doesn’t it?
Grip

November 9th, 2007 at 8:12 am

I used the new Facebook ad platform.

The first day, my click through rate was .32, the second day my click through rate was .16 - I am beginning to wonder how fast burnout can occur when you’re targeting a very specific demographic.
justin

November 9th, 2007 at 8:37 am

something to remember - AG Cuomo, the newly elected top law enforcement official in NY, is, much like his predecessor, quite aggressive. As their investigation into Fannie Mae and Freddie Mac reflects, they are willing to push the boundaries and work to create new law. I would not be surprised to see Cuomo weigh in on this with a subpoena first and potentially a lawsuit right behind it.
Troy Gilbert

November 9th, 2007 at 9:15 am

To all those that simply say, “if you don’t like the way they use your data, just don’t use the service,” I have to say “yes, and no.”

I don’t see any legal problems (or ethical or consumer rights) with what they’re doing for those now joining the service. They know (or should know) what they’re getting into.

Its that they flipped a switch and turned it on for all the existing users who didn’t have an expectation of this. The vast majority of Facebook’s users are likely not following TechCrunch or various other tech media outlets and wouldn’t have “seen this coming.” They just would have arrived to their Facebook account the other day to see the pour of ads. That’s the core complaint here, that’s the privacy violation.

Facebook may be legally in the clear (I’m sure they are considering their resources and liability exposure), but that certainly doesn’t mean they’re not being good corporate citizens by building a free social community and then flipping the switch to turn it into a targeted advertising platform.
Danno

November 9th, 2007 at 9:46 am

@ Troy: Indeed! I’d NEVER have joined FB myself, if I knew that THIS was what they had up their sleeves…
Danno

November 9th, 2007 at 9:53 am

BTW: They could have totally covered themselves if they have made this info-sharing an opt-in feature, as opposed to a cumbersome opt-out nightmare.
Jon

November 9th, 2007 at 9:58 am

I don’t know about NY, but I’m pretty sure this would be “illegal” in the E.U.
David Mackey

November 9th, 2007 at 10:20 am

Pahh. Come on, we gave them the data, they aren’t giving away personally identifiable information. Why do we care?
Robert Liebsch

November 9th, 2007 at 10:38 am

This is interesting
“Facebook say that it would be difficult for someone used in these ads to argue against the use given they will have already identified themselves publicly, implying consent.”
when taken in light with
“… any expectation of privacy can be waived [citing case holding that a privacy disclaimer on a bulletin board “defeats claims to an objectively reasonable expectation of privacy.”] Many employees are provided with e-mail and Internet services by their employers. Often, those employees are required to waive any expectation of privacy in their email each time they log on to their computers. [Court] orders directed to the email of employees who have waived any possible expectation of privacy do not violate the Fourth Amendment.”
and
“he terms of service (TOS) of many ISPs permit those ISPs to monitor user activities to prevent fraud, enforce the TOS, or protect the ISP or others, or to comply with legal process. If you use an ISP and the ISP may monitor what you do, then you have waived any and all constitutional privacy rights in any communications or other use of the ISP. For example, the government notes with respect to Yahoo! (which has similar TOS):”

The last two quotes come from:
http://www.theregister.co.uk/2.....l_privacy/
regarding:
On October 8, 2007, the United States Court of Appeals for the Sixth Circuit in Cincinnati granted the government’s request for a full-panel hearing in United States v. Warshak case centering on the right of privacy for stored electronic communications

Think it is related?

Personally, I don’t have any reasonable expectation of privacy on the InterWebs or on Cell phone, or any public place. I do have it in my home with the curtains and windows closed.

I’m not crying victim, but we haven’t privacy anymore. It isn’t 1800’s America. A great deal of us don’t have back yards. Hell, many of us don’t have 3 inches between our homes and our neighbors home…
Virgin Mobile (rb)

November 9th, 2007 at 11:30 am

Read this http://www.webguild.org/2007/1.....-cost.html
Big Bopper

November 9th, 2007 at 11:45 am

for those preaching that the answer to not liking an aspect of a service is not to use it…if only it were that simple. it is a bit like saying, “don’t like car crashes? stop driving!” whereas the more reasonable reality is, we’ve made the car companies put in seat belts.

facebook, like many pieces of software, is rather complex. there are a *bunch* of settings and it takes a careful, methodic approach to ensure that everything is tweaked to your personal privacy tolerance threshold. while i agree that facebook is a business and doesn’t have to apologize for turning a buck, i do not agree that they can mislead people as they go about doing so. their pitch boils down to ‘clean, well-lit place for you and your friends to socialize, share, and discover stuff’. that’s good as far as it goes but, like myspace, they’ve done an absurdly awful job of warning folks of the risks of use and offering ways to mitigate that risk. in other words, where are the social-networking seat belts?

there is an expectation in the marketplace that a $15B company will conduct itself with the grace and composure befitting its status. otherwise it will likely cease to be a $15B company. are you listening mark?
FaceWeek.com

November 9th, 2007 at 12:08 pm

No, it’s not going to be considered illegal I would guess.
Natasha

November 9th, 2007 at 3:54 pm

I dont see what is wrong with them, the law seem silly.
Dwayne

November 10th, 2007 at 3:27 am

It’s perfectly acceptable what facebook is doing, I see nothing wrong with it personally. As for the spelling and grammar remarks earlier, I don’t think calling a blog unprofessional is exactly a useful comment. It’s more of a typo, not a spelling error. To, Too they both sound the same anyway.
Stu

November 10th, 2007 at 6:21 am

I think opt-out is a bad way to implement it, but I will vote with my time. I am trying to migrate my friends to Ning where we can set-up our own site. Most of us are willing to pay something, it is just a matter of having the time to repost our profile data.

Dwayne: If you take that stance about “a blog” then you have to consider that is not just “a blog”. As MA’s decision not to attend the Blogworld indicates, this blog network no longer needs to associate with small little blogs that struggle for income. Originally, blogs were seen as alternatives to MSM, but now many of them have been successful enough to hold accountable to higher standards of journalism (like typos). One cannot have it both ways. “We become what we seek to displace”
meetingflex.com

November 10th, 2007 at 8:25 am

I was wondering.

http://www.meetingflex.com