Facebook’s terms of service obstruct investigations of Facebook’s platform that are “manifestly in the public interest,” Institute says

In a letter sent yesterday, the Knight First Amendment Institute at Columbia University asked Facebook to amend its terms of service to establish a “safe harbor” for public-interest journalism and research focused on Facebook’s platform. The Knight Institute sent the letter on behalf of journalists and researchers who study Facebook but whose investigations are impeded because Facebook’s terms of service categorically prohibit the use of certain digital tools.

“We need to better understand how Facebook’s human and algorithmic decisions are influencing public discourse and shaping our democracy,” said Jameel Jaffer, the Knight Institute’s Executive Director. “Facebook should lift the restrictions that obstruct digital journalists and researchers from studying the forces at work on its platform.”

In its letter, the Knight Institute explains that Facebook’s terms of service impede journalism and research by prohibiting two basic tools of digital investigation: the automated collection of public information (sometimes called “scraping”) and the creation of temporary research accounts. Journalists and researchers who use these tools risk account suspensions and shutdowns, legal liability for breach of contract, as well as civil and criminal liability under the Computer Fraud and Abuse Act — a statute that has been interpreted by Facebook, federal prosecutors, and some courts to apply to terms- of-service violations.

“Journalists and researchers who undertake public-interest investigations of social media platforms shouldn't have to operate under the threat of legal sanction,” said Alex Abdo, a senior staff attorney with the Institute. “Amending Facebook’s terms of service would ensure that journalists and researchers can do the work the public urgently needs them to do.”

To the extent they impede public-interest journalism and research, Facebook’s terms of service raise serious public policy concerns, the Institute says in its letter. The Institute also argues that applying the CFAA’s civil and criminal penalties to this kind of journalism and research would violate the First Amendment.

“Facebook needs to better protect user privacy, but it can and must do this without impeding public-interest investigations of its platform,” said Ramya Krishnan, a legal fellow with the Institute. “It’s important to remember that public-interest journalism and research are often crucial to alerting the public to privacy and security risks. Obstacles to this kind of journalism and research don’t serve the public interest or the interests of Facebook’s users.”

The Knight Institute's letter to Facebook.

The Institute sent the letter on behalf of journalists and researchers who study issues including filter bubbles, discrimination, propaganda and disinformation, and foreign government interference in U.S. elections, the Institute's letter says. These journalists and researchers are Kate Conger, a general assignment technology reporter for the New York Times; Cameron Hickey, an Emmy Award–winning journalist and documentarian who has produced science and technology stories for the PBS NewsHour; Kashmir Hill, a senior reporter for the Special Projects Desk at Gizmodo Media Group; Arvind Narayanan, Associate Professor of Computer Science at Princeton University; and Aviv Ovadya, former Chief Technologist at the Center for Social Media Responsibility, University of Michigan School of Information. (Institutional affiliations are provided for identification purposes only.)

Journalists and researchers calling on Facebook to lift restrictions on their work.

The Knight First Amendment Institute is a non-partisan, not-for-profit organization established by Columbia University and the John S. and James L. Knight Foundation to defend the freedoms of speech and press in the digital age through strategic litigation, research, and public education. Its aim is to promote a system of free expression that is open and inclusive, that broadens and elevates public discourse, and that fosters creativity, accountability, and effective self- government.  The Institute’s litigation docket currently includes a First Amendment challenge to President Trump’s practice of blocking critics on Twitter, a challenge to the Department of Justice’s refusal to disclose legal memos that constitute the binding law of the executive branch, and an effort to shed light on border agents’ practice of searching travelers’ laptops and cellphones.

Reporters Committee for Freedom of the Press: Knight Institute's Facebook "safe harbor" proposal showcases need for comprehensive CFAA reform.

Freedom of the Press Foundation: Facebook’s terms of service obstruct important journalistic research.