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Jonathan Zittrain: A Bill of Rights for the Facebook Nation

Guest blogger Jonathan Zittrain, a professor at Harvard Law School and co-founder of Harvard’s Berkman Center for Internet & Society, is the author of the recent book The Future of the Internet — and How to Stop It.

Facebook boasts more than 200 million active users, with an astounding 100 million logging in at least once per day, and many share intimate and sensitive details about themselves. That not only means that the service is susceptible to privacy panics (both real and imagined) on a regular basis. It means that, as with other social networks, people vest their identities in their profiles.

Even small changes, such as in the way the “newsfeed” works, elicit heartfelt reactions from people who think of their pages as … well … their pages.

We saw this phenomenon at work when, in mid-February, Facebook posted a set of what its management seems to have thought were minor changes to its terms of service – the kind of things that just wouldn’t matter to its users. Instead a privacy panic ensued, reinforcing larger worries about Facebook’s power.

Facebook’s founder, Mark Zuckerberg, responded quickly – in plainspeak rather than legalese – and I credit his view that the changes in terms of service really weren’t meant to be a stealthy way of doing surprising new things with users’ information. But he used the occasion to offer an analogy:

“More than 175 million people use Facebook. If it were a country, it would be the sixth most populated country in the world. Our terms aren’t just a document that protect our rights; it’s the governing document for how the service is used by everyone across the world.”

This encourages Facebook users not to simply view themselves as users but as … citizens. Citizens of Facebook. The consumer/vendor relationship – governed by contract and fair-trade law – is different from that of citizen/government. Citizens identify with something larger than themselves – if one’s country is attacked, it can feel like a personal attack in a way that a fellow bank customer’s account theft does not feel like a personal invasion. (“Today we are all Bank of Americans” doesn’t leap to the lips.) And in nonauthoritarian systems, citizens have a voice in the affairs of state distinct from the metaphorical vote a consumer makes with his or her feet – or that a shareholder makes in a quaint proxy proceeding.

Facebook has followed through with the analogy. In a rather unusual move, it has published Facebook “governance documents,” opened them to public comment in a manner intentionally reminiscent of American administrative agencies’ notice-and-comment periods, enlisted law students to help process the responses, and now is putting a revised set of documents up for a vote.

This isn’t meant to be a one-off deal. Instead, there is a Facebook Principles document – translated into multiple languages – that expresses commitments to such things as open platforms and standards, free flow of information, universal availability of the service and its contents regardless of one’s country, and freedom to control one’s own data, including removing (or extracting) it from Facebook. The “Statement of Rights and Responsibilities” has a most unusual section on amendments – usually the boilerplate piece of a terms of service that says that the vendor has the right to change the terms whenever it wants so long as it alerts users to the change. This one says:

“If more than 7,000 users comment on the proposed change, we will also give you the opportunity to participate in a vote in which you will be provided alternatives. The vote shall be binding on us if more than 30% of all active registered users as of the date of the notice vote.”

To be sure, these two sentences have loopholes suitable for a truck (and a missing verb which presumably is supposed to be a quorum requirement – 30% of all active registered users voting for a vote to be binding). Thirty million users voting on anything (especially since it requires adding a new Facebook voting app) is a high threshold. More important, there’s no effort to identify what the alternatives will be. The current vote – on the principles themselves – simply asks users:

Which documents should govern the Facebook Site?

Choices:
The proposed documents: Revised Statement of Rights and Responsibilities and Facebook Principles – 4/16/09 (These documents reflect comments from users and experts received during the 30-day comment period.)

Existing documents: The current Terms of Use – 9/23/08 (This document was developed entirely by Facebook and does not reflect any third-party outside comments.)

It calls to mind the age-old trick of asking the children whether they’d like to wear their red or green pajamas to bed – with no choice about when bedtime actually is. Facebook still holds the quill and frames the choice. But the fact is that most companies wouldn’t dream of going as far as Facebook just has, because the kinds of public pressures that create privacy crises can also be elicited when cynical choices are presented.

So Facebook draws from the public and public-interest sphere, a simultaneously bold and modest step towards acknowledging that our new networked technologies deeply affect our lives in ways not always captured or best shaped by the typical template of consumer and seller. So I’ve become voter number 167,476 in the poll. (Yes, they say results will be audited by an outside firm.) I’m not expecting to add another passport to my drawer, but I’m heartened at the prospect that the amazing engine of private enterprise may find creative ways to tap into and reinforce our civic instincts.

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