This is a bold pronouncement from a company that has all too often been perceived as being more closed than open when it comes to data policies.

Of course the devil is in the details, particularly in understanding better what he means when he says “this concept of data portability that we’re trying to enable” – hopefully the “concept” is the same one most other folks understand to be regarding data portability.

As for the rest of his statement, it is a significant milestone for him to say “people own their information” and that they “should be able to take it to other services. If this holds true, then Facebook may be on the verge of becoming the largest and most influential supporter of data portability – to the significant benefit of all.

Still, Facebook has been here before – having initially joined the non-profit Data Portability organization and then largely remaining on the sidelines.

Hopefully, this all comes to pass and Facebook becomes the shining example of how a large company can balance direction and profitability with open data policies. If not, Mark’s words will likely become a rallying point that will surely stick in his side.

But, for now we’ll take him at his word, literally, and hope that the corner has turned. If this is in fact the case, then one of the best things that Mark and Facebook could do is to enact an official Portability Policy – just like those suggested by the soon to be released initiative from the DataPortability Project.

Read more: http://social.venturebeat.com/2010/05/26/zuckerberg-motivations/

–Steve Repetti
Data Portability Vice-Chair
www.radwebtech.com

“California’s computer crime law is aimed at penalizing computer trespassers,” said EFF Civil Liberties Director Jennifer Granick. “Users who choose to give their usernames and passwords to aggregators like Power Ventures are not trespassing. Under Facebook’s theory, millions of Californians who disregard or don’t read terms of service on the websites they visit could face criminal liability. Also, any Internet company could use this argument as a hammer to prevent its users from easily leaving the service as well as to shut down innovators and competitors.”

Even the simple use of the automatic login feature of most browsers would constitute a violation under Facebook’s theory, since those services are “automatic means” for logging in. But the risk for users is even broader. If any violation of terms of use is criminal, users who shave a few years off their age in their profile, claim to be single when they are married, or change jobs or addresses without updating Facebook right away would also have violated the criminal law.

“The information you put into social networking sites is yours, and you should be able to access it, export it, and aggregate it as you please,” said EFF Legal Director Cindy Cohn. “If Facebook’s legal argument is upheld, it will hobble companies that enable consumer choice, as well a create a massive expansion in the scope of California criminal law.”

For the full brief: http://www.eff.org/files/filenode/facebook_v_power/poweramicus.pdf

Jason Kincaid over at TechCrunch released an interesting article on the subject, “Power.com Countersues Facebook over Data Portability,” along with a copy of the counter-suite.

In their opening salvo, Power steps up to the soap box and discusses “a borderless Internet where users have the right to own and control their own data” and goes on to present their recently adopted “Internet User Bill of Rights:”

This is great stuff for users and data portability, and in many ways mirrors much of our work over at the Data Portability Project (http://www.dataportability.org), however it has little to do with what Facebook is doing in the context of their site or their lawsuit. It does, however, place Facebook in a position of having to answer why it does not agree with these principals.

Thus far, Facebook has tread cautiously as it relates to user data and rights therein. They do not wish to give away the store or proprietary and competitive advantage, nor do they wish to (further) incur the wrath of its users by inflicting too many restrictions. Many of us hoped that a number of Facebook’s recent initiatives signaled their willingness to explore a leadership role in this highly important area. Unfortunately, the pleadings conflict with this hoped for direction.

From Facebook’s perspective, Power.com violated Facebook’s stated terms and conditions; the contract that establishes the relationship between the parties for the use of the site.  Every Facebook user has agreed to this (or they wouldn’t be using the site), but, like virtually every other “terms and conditions” document, it is overly broad, highly protective, filled with legalese, and generally ignored by most actual users.  It is merely the lack of enforcement by the provider (in this case Facebook) that keeps these things out of court more often. (The standardization and simplification of this topic is also the subject of much work over at Data Portability and other advocacy organizations).

Power.com counters by saying they are doing nothing that Facebook isn’t already doing themselves, and, besides, theirs (they believe) is the right way anyway. It is clear that Facebook does not agree with this position but now is in the difficult position of explaining why many of the good points that Power.com raises are not valid within Facebook.

Still, Facebook is a privately held company and they get to decide what is allowed or not. No court, other than the one of public opinion, can force them to do what they do not want to do – unless the legal line is crossed.

And while I do not believe that Power.com has a leg to stand on when trying to win based on how much “screen scraping” of data is allowed (Facebook’s terms and conditions say none), they have raised some interesting issues that could inspire both the court of opinion and the hollowed halls of justice.

At the very least, Facebook is highly conflicted. It does not own the copyrights associated with all of the information available on its site; it does use some of the very techniques with 3rd-party sites that it accuses Power.com of using against Facebook; it has moved in the direction of providing greater access to its data; and it is party to litigation that potentially represents a PR quagmire.

More significantly for Facebook, Power.com raises the issues of “Restraint of Trade” and “Restraint on Competition” regarding data portability which both lead to the dreaded “M” word: MONOPOLY. Specifically:

“Facebook’s conduct restricting users’ ability to access their own data constitutes an unlawful restraint of trade under Section I of the Sherman Act.”

“Facebook’s conduct constitutes monopolization (or attempted monopolization, ed.) of the market for social networking website services in violation of Section 2 of the Sherman Act.”

With all of the issues at hand, I predict that there will be chest banging and posturing by both sides, some “interesting” press conferences, followed by a negotiated settlement that washes the issue aside and lets both parties (partially) save face. Regardless, Facebook will likely take a PR “black eye” over this.

But I submit there is another, better, solution: Facebook should not only continue its current efforts of data portability and accessibility, but become the leading player on how to do it right!  Users would benefit, Facebook would be crowned a friend to all proponents of Data Portability, and the lawyers would find something else to do! In absence of such, Facebook risks becoming the view in the rear view mirror for the company that actually does get it right.

IMHO.

Steve Repetti

www.radwebtech.com

By observing these actions the DataPortability project, and the wider community, can learn lessons on what works and what doesn’t so we can all adopt clear community endorsed best practices.

The latest Facebook step (misstep?) occurred last week when they made some changes to their Terms of Service and one of the items of contention by many is the following statement:

“You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content. “

“So Who Owns Your Data” is always a question that myself and other members of the DataPortability Project (DPP) have grappled with for some time. No doubt ‘ownership’ of data is top of mind to people who are interested in data portability.

We have said in the past that Ownership without Control is worthless. Scope of Control, however, seems to stem from ownership. That is, you should only be able to control what you own. So the fundamental question of Ownership is still important.

‘Ownership’, however, is tricky when you are talking about bits and bytes that are getting shared, indexed, replicated and mixed together by multiple services and participants.

Perhaps Ownership is not the right metaphor at all? Late last year, fellow DPP co-founder Elias took the time to address some thoughts on ‘ownership’ of data with a post titled “You don’t nor need to own your data” that I would recommend reading. In it, Elias discusses traditional concepts of ownership and goes on to suggest that perhaps we need a new term to describe our relationship to social data.

Here is a large section from his post:

First of all, let’s define property ownership: “the ability to deny use of an asset by another entity”. The reason you can claim status to owning your house, is because you can deny someone else access to your property. Most of us have a fence to separate our property from the public space; others like the hillbillies sit in their rocking chair with a shot gun ready to fire. Either way, it’s well understood if someone else owns something, and if you trespass, the dogs will chase after you.

The characteristics of ownership can be described as follows:

1. You have legal title recognising in your legal jurisdiction that you own it.
2. You have the ability to enforce your right of ownership in your legal jurisdiction
3. You can get benefits from the property.

The third point is key. When people cry out loud “I own my data”, that’s essentially the reason (when you take out the Neanderthal emotionally-driven reasoning out of the equation). Where we get a little lost though, is when we define those benefits. It could be said, that you want to be able to control your data so that you can use it somewhere else, and so you can make sure someone else doesn’t use it in a way that causes you harm.

Whilst that might sound like ownership to you, that’s where the house of cards collapses. The reason being, unless you can prove the ability to deny use by another entity, you do not have ownership. It’s a trap, because data is not like a physical good which cannot be easily copied. It’s like a butterfly locked in a safe: the moment you open that safe up, you can say good bye. If data can only satisfy the ownership definition when you hide it from the world, that means when it’s public to the world, you no longer own it. And that sucks, because data by nature is used for public consumption. But what if you could get the same benefits of ownership – or rather, receive benefits of usage and regulate usage – without actually ‘owning’ it?

Property and data – same same, but different
Both property and data are assets. They create value for those who use them. But that’s where the similarity’s end.

Property gains value through scarcity. The more unique, the more valuable. Data on the other hand, gains value through reuse. The more derivative works off it, means the more information generated (as information is simply data connected with other data). The more information, the more knowledge, the more value created – working its way along the information value chain. If data is isolated, and not reused, it has little value. For example, if a company has a piece of data but is not allowed to ever use it – there is no value to it.

Data gains value through use, and additional value through reuse and derivative creations. If no one reads this blog, it’s a waste of space; if thousands of people read it, its value increases – as these ideas are decimated. To give one perspective on this, when people create their own posts reusing the data I’ve created, I generate value through them linking back to me. No linking, no value realised. Of course, I get a lot more value out of it beyond page rank juice, but hopefully you realise if you “steal” my content (with at least some acknowledgement to me the person), then you are actually doing me a favour.

Ignore the above!
Talking about all this ownership stuff doesn’t actually matter; it’s not ownership that we want. Let’s take a step back, and look at this from a broader, philosophical view.

Property ownership is based on the concept that you get value from holding something for an extended period of time. But in an age of rapid change, do you still get value from that? Let’s say, we lose the Holy War for people being able to ‘own’ their data. Facebook – you win – you now ‘own’ me. This is because it owns the data about me – my identity, it would appear, is under the control of Facebook – it now owns, that “I am in a relationship”. However, the Holy War might have been lost but I don’t care. Because Facebook owns crap – as six months ago, I was in a relationship. Now I’m single and haven’t updated my status. The value for Facebook, is not in owning me in a period of time: it’s in having access to me all the time – because one way they translate that data into value is advertising, and targeting ads is pointless if you have the wrong information to base your targetting on. Probably the only data that can be static in my profile, is birth-date and gender – but with some tampering and cosmetics, even those can be altered now!

With their change of terms, Facebook is essentially saying that they will ‘forever own’ a copy of your data as part of their archives to do with what they wish. I will go so far as to sympathize personally with the team there and give them an approving nod for some of Zuckerberg’s comments especially acknowledging that they are indeed trying to address some serious questions around how we live our digital lives. It’s not easy and they certainly don’t have to go it alone.

I would invite them, and anyone else interested in the topic, to join one of our most recent TaskForces – the EULA & ToS Taskforce.

Following the example of  Creative Commons, the goal of our task force is to identify and name key concepts that help users and service providers understand what each other expects . The intended output will be a set of documents that can be referenced or included in EULA and TOS agreements and simple descriptions for users to understand what it means when they upload and share data with services providers.

As part of this taskforce, we seek to provide a standard way of describing the relationship between the user and site that is easy to understand and provides both sides with the control that they need.

If you are interested in the subject – now is the time to join us and help define some basic principles that services providers should support by joining and supporting the work that the EULA & ToS Taskforce is conducting.

And another kudos to Facebook for starting a discussion topic immediately on the “People Against the new Terms of Service (TOS)” Facebook Group. Some real use cases and concerns are being captured in that discussion that will help us all as we work towards our common goal.

Some additional posts on the subject of Facebooks New Terms of Service:

• Where the buzz started on the Consumerist Blog (a consumer advocacy blog) Facebook’s New Terms Of Service: “We Can Do Anything We Want With Your Content. Forever.”
• Caroline McCarthy CNET: Facebook: Relax, we won’t sell your photos
• An interesting overview of the various terms of service out there by Amanda French : Facebook terms of service compared with MySpace, Flickr, Picasa, YouTube, LinkedIn, and Twitter
• web.tech.law What Facebook’s revised terms of use mean for your content
• There are plenty of other posts and suspect more to come so here is a link to posts via Techmeme
• Comparing the Terms and Conditions of Facebook, Myspace, Flickr, Picasa, YouTube, LinkedIn and Twitter.

[Add to this the earlier announcement of Facebook’s support of OpenID and things are definitely starting to get interesting]

But beyond the power and convenience of integration and data portability from external sources, the real story lies just below the surface.  Facebook is striving to become the ultimate repository for all of your social-media information and this is another step along that path. Their platform is becoming a global data-store and their APIs are empowering developers and users with standardized methods of interaction.

On the one hand there is very little about this that is open.  Facebook controls the data, its access, and its availability. Facebook defines the integration, they determine the protocols, and the APIs, and even who can and cannot use any of this. This “openness” is all under the oversight, control, direction, and whim of the giant.

Yet, when you think about it, Facebook has made huge strides in extending its world beyond the looming walls of their garden. And, while I don’t think this was their original intent, they have nevertheless listened to their user base and observed the opportunity the market presents. 

Some may call it baby steps, others an attempt at world domination. But the winner today is the user (and yes, it’s pretty good for Facebook too!); and the benefits continue to evolve. Along the way, these initiatives will provide new and innovative methods for interaction with users and data that may lead to de facto standards for data portability. Will that actually happen?  That depends on Facebook’s “real” position on openness, the user’s tolerance and acceptance of that position, and the response from the other great giant seeking dominance in the global data-store market – Google.

– Steve Repetti
steve@radwebtech.com
www.radwebtech.com
Data Portability board member