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The Weekly Kos: Apathy toward the law is disregard for society at large

Published: November 30, 2012
Section: Opinions


Facebook, often called the most important medium of our generation, is most-used by and is likely most useful to college students. The high value we give to the site foments the type of antics aroused this week, when hundreds of thousands of users re-posted a status update purporting to protect them from the possible downsides of consigning so much of a life to one supersite. The uproar says a lot about the privacy concerns many students care about, or at least like to think that they care about; but it may say even more about just how ignorant many of us are when it comes to the law.

The chain letter is a block of jargon that asserts some rights, reclaims some others and invokes the power of “the Berner Convention” and “U.S. law, custom and practice.”
It has absolutely no legal force whatsoever. Exactly no power is invested in it by any state, nation or international convention: just the naïveté of a million hopeful subscribers.
And how could it possibly be otherwise? Facebook, as everyone knows, constantly updates its privacy policy, sends all of us emails about changes to site governance and until recently, even held votes on every major update before it could be approved. Companies don’t do this for nothing. (Facebook recently cancelled the democratic votes because of voter apathy: almost none of us, from a billion users, voted. Now there will be a comment period instead.)

Other than the common law contract rights, no U.S. law gives Facebook users ownership rights over their public content—the kind embodied exactly in the Facebook Terms of Use. We have all checked the box, “We agree to the data use policy.” We all set our own privacy settings and Facebook allows for a wide latitude for customization so that we can set restrictions on who can see our posts. The law does require that Facebook provide a way to opt-out of releasing your material and intellectual property rights. To do this users simply need to restrict what Facebook calls the “audience” of posts.

In the United States “custom and practice” are real legal terms that posters of this thread nonetheless seem to have pulled at random from an episode of Law and Order. And in any case the general legal principle of customary law is to follow what is called the general practice only in the absence of a law specifically saying otherwise. The frantic users have failed on all counts.

For good measure, the letter and the overzealous oddballs who reposted it attempt to refer to the Berne Convention for the Protection of Literary and Artistic Works. Berne, the capital of Switzerland, is where a large group of nations met 130 years ago and decided to provide equal treatment in their domestic copyright laws to nationals of the other countries.

The nation of many of those who erroneously attempted to use this treaty, the nation of Facebook’s headquartering, the nation of yours truly, the United States of America, was not in Switzerland for this meeting and did not bring the treaty into its own law until 1988. When it did so, Congress specifically exempted itself from any binding automatic protections for individuals who did not register their would-be property under existing American data use laws.

Those laws, of course, are exactly what empower the Facebook Terms of Use.
Saying that you control all text that you post does not make it true. Saying that you control all images of you, however embarrassing, does not make it true. The idea that it would is not just misinformed, but troubles those of us who would have liked to remain hopeful about the future of American democracy.

Indeed, it is very interesting to consider the bizarre, Kafka-esque courtroom where some of our peers seem to think American law is dispensed. Using the logic this post, catnip for the callously ignorant, its silly re-posters could wind up in court themselves! By my humble estimation, they have exhibited written proof via status update of attempted conversion, the crime for taking away another’s use of his, in this case Facebook’s, own property. I also count libel, reckless breach of the peace and unlawful rendering of legal advice by one not a member of the bar, to add to the posters’ fake rap sheets.

I did not pick up any of the material used in this analysis with the help of Brandeis’ esteemed Legal Studies curriculum. The fact that this post was shared so many times and caused such misguided indignation and worse, grandstanding, demonstrates that most of us just don’t care to find out the exact customs and practices of the world around us.

The law does not spring from somewhere mysterious, on high, unable to be discerned by any but the most brilliant minds. Nearly all of us could figure out the basics of common personal law if we only cared to give a brief moment of our lives to do so. Basics such as the notion that a promise honestly made cannot later be undone on one party’s whim? It doesn’t take a scholar of jurisprudence to discern that. The idea that doing something (posting on Facebook) that you are only able to do because of one party (Facebook’s) allowing you to can be used to hurt that party? Ridiculous. And we wouldn’t want the law to allow us to be damaged in the same fashion either. And so it doesn’t allow it.

People can draw the same logical conclusions the law draws, about common sense issues like ownership, fair use of one’s own property and the power of everyday speech in deal-making. And people do: that’s why the law is how it is, because people like us decided to write it that way.

But I cannot complain too much. Such ignorance of one of the most powerful expressions of our society, the law of the land, may make me cynical, but I want to be an attorney someday. The level of apathy so many of us possess toward the law, which is actually a heartless refusal to learn about each other and even ourselves, probably has something to do with the very-high price people are willing to pay a lawyer to do it for them.