Facebook Suit Could Snag Users

By Craig Anderson
Daily Journal Staff Writer
May, 2010
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SAN JOSE - The Electronic Frontier Foundation is stepping into a legal battle between Facebook and aggregator Power Ventures, arguing that Facebook's lawsuit alleging violations of criminal law would leave the social networking site's users vulnerable to prosecution.

Facebook claims San Francisco-based Power Ventures Inc. is violating the California Comprehensive Computer Data Access and Fraud Act, among other statutes, by allowing users to get onto Facebook through Power Ventures and send unsolicited messages to their "friends" that appear to come from Facebook.

In an amicus brief filed Monday, the Electronic Frontier Foundation said Facebook is asking the court to "create a massive expansion of the scope of California criminal law" in order to go after Power Ventures. But the EFF argues that such an outcome could put all users of social networking sites, including Facebook, at risk of prosecution.

Cindy Cohn, EFF's San Francisco-based legal director, said a court decision in Facebook's favor would transform violations of a social networking site's terms of use into a violation of the California Comprehensive Computer Data Access and Fraud Act.

"This would be a global rule," Cohn said. "Any violation of the rule would turn the person into a computer criminal." The EFF brief does not address many of Facebook's claims, including allegations that Power Ventures is infringing the company's copyright and trademarks as well as violating the federal Digital Millennium Copyright Act and two other federal laws.

EFF civil liberties director Jennifer Granick's brief supports Power Ventures' motion for summary judgment asking for the dismissal of Facebook's claims that accuse the defendant of violating the California penal code.

U.S. District Judge James Ware will consider Facebook's motion for a judgment on the pleadings and Power Ventures' motion for summary judgment next month. Facebook Inc. v. Power Ventures Inc., C-08-05780.

Facebook fired back at the EFF on Tuesday. Company spokesman Barry Schnitt said in a prepared statement that the privacy rights group "fundamentally misunderstands what this case is about."

The lawsuit does not target any individual users, and Schnitt said Facebook has "no intention to criminalize users' access to their data through automated means."

The company instead portrays itself as a protector of its users' privacy against a defendant that is using Facebook users' login information to gain unauthorized access to its network and to send unsolicited messages to other users.

But Cohn, who is most concerned about setting a dangerous precedent that would apply to all social networking sites, regards Facebook's stance as a protector of users' privacy as "funny."

"What Facebook is really saying is that we can sell your information," she said. "You can't."

Cohn said Power Ventures is simply providing a tool that allows people to view all information from their social networking sites in one place without having to access each of them one by one. "Power is offering a service to users that Facebook doesn't provide," she said.

Facebook's attorneys at Orrick, Herrington & Sutcliffe, led by Menlo Park-based Neel Chatterjee, argue in court papers that Power Ventures knowingly accesses Facebook's computer servers without authorization. "This means of 'accessing' and 'obtaining information' is commonly known as 'scraping,' a well-recognized form of cyber attack on the Internet involving the trespass of a computer server," the Orrick attorneys write.

Last year, U.S. District Judge Jeremy Fogel rejected Power Ventures' motion to dismiss the case.

Scott Bursor, a New York attorney who represents Power Ventures, could not be reached for comment Tuesday.