Why I Won’t Use Facebook (And You Shouldn’t Either)Every criticism of Facebook’s effect on privacy that I have come across begins and ends with how individuals use or – arguably – misuse it. I believe that is a wrong way to look at the issue. Rather, the discussion should proceed from an acknowledgement of what Facebook is designed to do, what its intended purpose is and, consequently, how its technical features influence user behavior. It is not that I have a problem with how people – users and those “interested” in users – employ the Facebook system. Rather, I see massive problems with the concept of Internet-based social networking in general, which boil down to a renunciation of Western society’s most cherished liberties in return for benefits that are at best nebulous and, more realistically, illusory.
An acquaintance recently called me asking for legal advice. She had posted a comment on her Facebook page about wanting to smoke a joint. Three days later, she was suspended from her (government) job and ordered to submit a urine sample. Whatever the outcome of the urine test, she will likely be fired, since even talking about drug use approvingly, in public, arguably makes her unfit for a job as a public servant. Her Facebook profile was “private”, which is to say, it was only visible to several hundred of her “friends”. Her questions to me were: Can “they” pry into what I post on Facebook? Can they fire me for something I wrote even though I wrote it in my spare time? Can they really use spies who will “friend” me just so that they can monitor what I say on Facebook? The answers to those questions are “yes”, “yes” and “yes”, respectively.
I can see the wincing now: of course if you talk about illegal activity on what is essentially a public forum, you may get in trouble. Talking about pot and suggesting you smoke it is stupid. Just don’t say anything controversial like that, and you’ll be fine. Right? Right?
Well – I know, from a colleague, of another instance of someone getting in trouble because of something he had posted on Facebook. This man – let’s call him “Gary” – worked as a computer specialist for a major corporation. He was a unique, highly qualified specialist and the corporation liked having him, but over the years, he increasingly came to feel that he was underpaid and underpromoted. I don’t know, and I don’t care, who was right and who was wrong in that dispute. What’s important for our purposes, is that a couple of days after Gary quit his job, a swarm of federal agents descended on his residence. They arrested Gary, ransacked his house and carded away his computers and all of his personal papers. Even old family albums were taken.
As it turned out, over the course of several preceding years, Gary commented on his Facebook page two or three times to the effect that he was at home, working. These utterly innocuous comments were enough to support his former employer’s allegation that Gary had taken sensitive materials home without authorization. On the basis of these comments, he was arrested and his home was searched; and even though the search did not turn up anything in the way of evidence, Gary was charged with corporate espionage – a felony that carries a 10-year sentence and a $500,000 fine (for every instance of stealing trade secrets). The case eventually died on the vine, but not before Gary spent almost two years and over $100,000 in legal fees in the efforts to extricate himself.
Now, in all fairness, there was more to the story. It turned out at one point that one of the chief executives at the corporation where Gary used to work had a close personal friend in the local US Attorney’s office, which, of course, raises the spectre of corruption: the justice system hijacked to serve as a vehicle for personal revenge. And, moreover, it was exceedingly unlikely that Gary would ever actually be convicted on the strength of those Facebook postings. Nevertheless, the postings buoyed the case in the courts for a long, long time, and the eventual discontinuance was but a Pyrrhic victory (if one can call it a “victory” at all; baseless prosecutions against socially and financially weak defendants rarely end with the kind of dramatic vindication that you often see in movies). By the time it was over, Gary’s life was in shambles. His career was ruined. His assets had evaporated. The psychological effect of being under a federal indictment and contending with the threat of imprisonment and a criminal record was devastating.
Alright, maybe this example is extreme as well. After all, how many of us work for people who have friends in high places, willing to corrupt the process for petty revenge, and how many of us are important enough to our employers for them to do something like that if we leave? Come on, TWR, don’t be so paranoid! The world isn’t out to get you!
No, I don’t think anyone is out to get me. I don’t hide in the closet, I don’t spend my life looking over my shoulder. The fact remains, however, that Facebook makes it exceedingly easy for all kinds of people and organizations to do bad things to you – from burglars waiting for you to post from your vacation three thousand miles away, to identity thieves trying to, well, steal your identity, to serial killers or rapists trying to learn about your habits and movements, to stalkers obsessively collecting personal information, to corrupt or overzealous law enforcement trying to keep their numbers up, to companies safeguarding their public image by monitoring their employees and even customers, to just sick-in-the-head people seeking to exploit any perceived vulnerabilities for their own selfish purposes, be it to convert you to their religion or to harass you for their own gratification, to plain old village gossips who will carry juicy details of your personal life far and wide, distorting them in the process.
To lawyers and private investigators looking for ways to crucify you. I said that I don’t use Facebook, and I need to clarify that. I don’t use it the way most people do. I am an insurance defense lawyer (which is like personal injury, except I represent people and organizations that are being sued), and I use it to look for and access the profiles of people who have sued my clients. I don’t interact with them: I just read, combing their comments and pictures for damaging information that I can later use against them. And believe me, this is not limited to cases of outright fraud. Sure, if someone’s profile is private, I can’t just create a fake account and friend them in order to gain access; but – I’ve heard – private investigators do this and get away with it. (I don’t think courts have ever confronted the issue of whether fake-friending someone on Facebook is tantamount to unlawfully contacting a party represented by counsel. I personally err on the side of caution, but investigators are known to bend the rules, especially when those rules are unclear. After all, they are not contacting plaintiffs about specific cases; and plaintiffs would have a very hard time arguing that a “private” profile available for viewing by hundreds or even thousands of “friends” is truly private.)
Basically, I regard Facebook the same way I regard talking to the police. Guilty or innocent, you shouldn’t; anything you say can and will be used against you. There is NOTHING to be gained by talking. It can only hurt you, it can never help you.
I also agree with Julian Assange’s characterization of Facebook as the world’s biggest spying machine, and the most heart-breaking thing about it, is that people who use it consent to be spied upon. And for what? So you can “connect”? The compulsion to put everything out there from financial information to pregnancy ultrasound images is not surprising in people who, along with their parents and maybe even grandparents, have been reared on a steady diet of the most sugary praise, becoming convinced that they are über-special and the minutiae of their lives are utterly fascinating and just HAVE to be shared. Facebook is as successful as it is because it is just right for a society hell-bent on self-destructive narcissism.
It can be argued of course, that one does not have to post personal information on Facebook. One can join under a fictitious name, work the privacy controls and refrain from posting pictures or comments that reveal personal information or may be construed (however remotely) as evidence of a crime. The problem is – what would you use Facebook for then? That is, unless you use it the way someone like me does? The very idea of Facebook is to use one’s real name and to share personal images and information; technically, the design is built to encourage disclosure and to discourage privacy-seeking. If you are a truly private person averse to sharing so much personal information, why would you muck around on Facebook at all?
Which brings me to my main argument against using Facebook, and that is that the culture of Internet-based social networking will slowly, but surely, make catastrophic changes to the legal culture surrounding the Fourth and Fourteenth Amendment (protection against unreasonable searches and seizures and guarantee of due process, respectively).
For those whose knowledge of ConLaw is a bit rusty, the Fourth Amendment provides that the government may not search “persons, houses, papers and effects” without a warrant supported by probable cause. Under some circumstances, a search may be conducted without a warrant, but then, the police still need probable cause – i.e., a reasonable suspicious that a particular, specific crime has been committed, or is in progress, or is about to be committed. Also, the Fourth Amendment prohibits general searches; in other words, if the police come to your house with a warrant to look for a stolen car, they may not rummage through your dresser drawers and coffee jars. Warrants that authorize the law enforcement to look for any evidence of any criminal activity of any nature whatsoever are patently unconstitutional.
In cases where the issue of privacy is disputed, courts employ a two-step analysis: the defendant must have a personal, subjective expectation of privacy, and that expectation of privacy must be a reasonable one, that society in general would be prepared to honor. Culture is a major component of this analysis. Basically, it’s like this: If you live in a glass house, where everyone can see everything that’s going on inside, the police may search it without a warrant. And if you live in a brick house, but everyone else lives in a glass house, the police may search your non-transparent brick dwelling as well.
Facebook represents a steady erosion of privacy in our culture, with the erosion of privacy rights in law sure to follow. The more of our lives we willingly expose to the general public, the more mainstream and widely accepted (and expected) we make such exhibitionism, the narrower the legal concept of a “reasonable expectation of privacy” will become.
The wheels of justice are said to grind slowly, but to grind exceedingly fine. Courts are slow to catch up to the ways that technological advances change culture and society, but when they inevitably do catch up, it’s with a vengeance. In my estimation, it will take another twenty years or so for first-impression cases to wind their way slowly up and to catch the attention of the Supreme Court – and then, the impact that our Facebook culture will have on our Constitutional rights will be truly frightening. When we think of 1984, it is government that we imagine as utterly oppressive, and it is hard to think of the free market, especially that portion of it that claims to encourage a free exchange of ideas, as being the fount of future totalitarianism, backed by more sophisticated technology than any dictator in history could ever have imagined. But Facebook is exactly that, and its role as a resource to oppressive entities and forces of coercion will only grow in the coming decades.
What does the immediate future hold? I suspect that the next phase of Facebook marketing will involve integrating it into education and basic economic transactions, so that it will become difficult to impossible to take a class, book a hotel room or open a bank account without being a Facebook user. The costs of abstaining from Facebook use will rise until even curmudgeonly folks like me are corralled. And then? Well, I’ll never post pictures or personal information, but as I explained above, personal choices of dissenters will not matter in the long run.
Finally, I noticed that in defending Facebook whenever privacy-related concerns are voiced, Mark Zuckerberg and committed Facebook fans respond by conflating disclosure with honesty. If you are not doing anything wrong, they say, you have no reason to keep any part of your life a secret. The idea that privacy appeals to the dishonest is old, but it’s only from the failure to realize that it has nothing to do with misleading the outside world and everything to do with personal autonomy. If I don’t reveal my ultrasound pictures to the world, it’s not because I’m trying to mislead the general public about my pregnancy; it’s because I don’t believe the general public has any legitimate right or interest in seeing something so personal. When the Founding Fathers enacted the Fourth Amendment and their descendants the Fourteenth (which extended the Bill of Rights to the states and codified a basic entitlement to liberty from unwarranted government interference), it was not because they had some special love for frauds and cheats and framed the Constitution for their benefit. Even the most avid fans of internet-based social networking have, without realizing it, mental and physical spaces where they expect to be themselves, to deal freely with their fears, foibles and conflicts, perhaps alone, perhaps with the help of family or friends, but certainly without the high social (and now, even legal) cost of having so much of themselves exposed to the public.
But then, they fail to appreciate the inherent contradiction, and so they end up across the desk or conference room table from someone like me, outraged at how “they” can “pry” into their private lives and private thoughts as detailed on the Internet.