About two weeks ago KU Leuven University and Vrije Universiteit Brussel in Belgium published a report commissioned by the Belgian Privacy Commission about the tracking behaviour of Facebook on the internet, more specifically how they track their users (and non-users!) through the ‘Like’ buttons and Share buttons that are found on millions of websites across the internet.
The results of the investigation are depressing. It was found that Facebook disregards European and Belgian privacy law in various ways. In fact, 10 legal issues have been found by the commission. Facebook frequently dismisses its own severe privacy violations as “bugs” that are still on the list of being fixed (ignoring the fact that these “bugs” are a major part of Facebook’s business model). This allows them to let various privacy commissioners think that privacy violations are the result of unintended functionality, while in fact it is, the entire business model of Facebook is based on profiling people.
Which law applies?
Facebook also does not recognise the fact that in this case Belgian law applies, and claims that because they have an office in Ireland, that they are only bound by Irish privacy law. This is simply not the case. In fact, the general rule seems to be that if you focus your site on a specific market, (let’s say for example Germany), as evidenced by having a German translation of your site, your site being accessible through a
.de top-level domain, and various other indicators as well (one option could be the type of payment options provided, if your site offers ways to pay for products or services, or maybe marketing materials), then you are bound by German law as well. This is done to protect German customers, in this example case.
The same principle applies to Facebook. They are active world-wide, and so should be prepared to make adjustments to their services such that they comply with the various laws and regulations of all these countries. This is a difficult task, as laws are often incompatible, but it’s necessary to safeguard consumers’ rights. In the case of Facebook, if they would build their Like and Share buttons in such way that they don’t phone home on page load and don’t place cookies without the user’s consent, they would have a lot less legal problems. The easiest way to comply if you run such an international site, is take the strictest legislation, and implement it such that it complies with that.
In fact, the real reason why Facebook is in Ireland is mostly due to tax reasons. This allows them to evade taxes, by means of the Double Irish and Dutch Sandwich financial constructions.
Another problem is that users are not able to prevent Facebook from using the information they post on the social network site for purposes other than the pure social network site functionality. The information people post, and other information that Facebook aggregates and collects from other sources, are used by Facebook for different purposes without the express and knowing consent of the people concerned.
The problem with the ‘Like’ button
Special attention was given to the ‘Like’ and ‘Share’ buttons found on many sites across the internet. It was found that these social sharing plugins, as Facebook calls them, place a uniquely identifying cookie on users’ computers, which allows Facebook to then correlate a large part of their browsing history. Another finding is that Facebook places this uniquely identifying
datr cookie on the European Interactive Digital Advertising Alliance opt-out site, where Facebook is listed as one of the participants. It also places an
oo cookie (which presumably stands for “opt-out“) once you opt out of the advertising tracking. Of course, when you remove this cookie from your browser, Facebook is free to track you again. Also note that it does not place these cookies on the US or Canadian opt-out sites.
As I’ve written earlier in July 2013, the problem with the ‘Like’ button is that it phones home to Facebook without the user having to interact with the button itself. The very act of it loading on the page means that Facebook gets various information from users’ browsers, such as the current page visited, a unique browser identifying cookie called the
datr cookie, and this information allows them to correlate all the pages you visit with your profile that they keep on you. As the Belgian investigators confirmed, this happens even when you don’t have an account with Facebook, when it is deactivated or when you are not logged into Facebook. As you surf the internet, a large part of your browsing history gets shared with Facebook, due to the fact that these buttons are found everywhere, on millions of websites across the world.
A major problem of personalisation technology, like used by Facebook, but also Google, and others, is that it limits the information users are exposed to. The algorithm learns what you like, and then subsequently only serves you information that you’re bound to like. The problem with that is, that there’s a lot of information that isn’t likeable. Information that isn’t nice, but still important to know. And by heavily filtering the input stream, these companies influence our way of how we think about the world, what information we’re exposed to, etc. Eli Pariser talks about this effect in his book The Filter Bubble: What the Internet is Hiding From You, where he did a Google search for ‘Egypt’ during the Egyptian revolution, and got information about the revolution, news articles, etc. while his friend only got information about holidays to Egypt, tour operators, flights, hotels, etc. This is a vastly different result for the exact same search term. This is due to the heavy personalisation going on at Google, where algorithms refine what results you’re most likely to be interested in, by analysing your previously-entered search terms.
The same happens at Facebook, where they control what you see in your news feed on the Facebook site, based on what you like. Problem is that by doing that a few times, soon you’re only going to see information that you like, and no information that’s important, but not likeable. This massively erodes the eventual value that Facebook is going to have, since eventually, all Facebook will be is an endless stream of information, Facebook posts, images, videos that you like and agree with. It becomes an automatic positive feedback machine. Press a button, and you’ll get a cookie.
What value does Facebook then have as a social network, when you never come in touch with radical ideas, or ideas that you initially do not agree with, but that may alter your thinking when you come in touch with them? By never coming in touch with extraordinary ideas, we never improve. And what a poor world that would be!
Good news on privacy protection for once: after an 11 March 2015 ruling of the Court of The Hague in the Netherlands in the case of the Privacy First Foundation c.s. versus The Netherlands, the court decided to strike down the Dutch data retention law. The law required telecommunication providers and ISPs to store communication and location data from everyone in the Netherlands for a year. The court based its decision on the reasoning that a major privacy infringement of this magnitude needs proper safeguards. The safeguards that were put in place were deemed insufficient by the court. There is too much room for abuse of power in the current law, which was the reason for the The Hague Court to strike it down, effective immediately.
The question remains what will happen now. The law has been struck down, so it seems logical to scrap it entirely. Whether that will happen, or whether the decision stands should the Ministry of Security and Justice appeal the decision, time will tell.