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Above the Law's David Lat Booted From Facebook

Everyone in the blawgosphere knows that David Lat is Above the Law. Everyone, that is, except Facebook, which apparently has its own laws that even a blogger of Lat's stature can't transcend. Facebook recently banished David Lat from its site, without explanation, according to Daniel Solove at Concurring Opinions.  Fortunately, the suspension didn't last long -- as of this afternoon, Lat reports that Facebook responded to Lat's appeal and reinstated his account.

Lat's sudden suspension has triggered a discussion among legal bloggers over what type of process is due customers of Facebook prior to ejection from the site.  This isn't the first time that a user's expulsion from a Web site has generated controversy. Last year, a Second Life user challenged the site's suspension of his account, with the judge invalidating the Terms of Service as an unconscionable contract of adhesion.  But given Lat's status as an A-list  law blogger, his experience has attracted more discussion from the legal blogosphere. 

Dan Solove frames the issue this way:

As more of our lives become dependent on Web 2.0 technologies, should we have some sort of rights or consumer protection? Is Facebook the digital equivalent to the company town?

Solove notes that currently, Facebook does not have any obligation to even explain why it terminated Lat under its Terms of Use.  On the one hand, Solove recognizes that Facebook owns the site, and it can set the rules.  But on the other hand, he argues that people put "a lot of labor and work into their profiles on the site" and that it takes time and effort to build and maintain a network of friends. Moreover, Facebook encourages people to use its service in this manner and reaps the financial benefits of extensive use. Thus, Solove wonders whether Facebook users "should be granted any kind of rights or protections" when they use the site.

Professor Larry Ribstein says asking private businesses to act like public utilities is asking for trouble.  Ribstein believes that contract law and the free market adequately protect Facebook users -- and that if Facebook wants to attract and retain customers, it will grant them rights "up to the point that they are profit-maximizing for Facebook." Ribstein also suggests that Facebook's knee-jerk expulsions may be the result of Facebook's increased liability exposure caused by the actions of its users.

As a David Lat fan, I hate the fact that Facebook kicked him out, albeit temporarily. And as a Facebook user myself, I don't relish the thought that my account and all of my contacts could be expunged without notice and for no apparent reason. 

At the same time, what I hate more than any of this is the potential regulation of Web 2.0 applications that even in Internet years, are still in their infancy. Eventually, I think we'll see these services evolve, with the emergence of high-end sites geared exclusively for professionals, that will likely offer the kind of extensive procedural and privacy protections that more sophisticated users will demand. Like Professor Ribstein, I'm confident that the market will eventually address the issue of consumer protection if we give it a chance. It's just unfortunate that one of the growing pains had to be the suspension of David Lat.

Posted by Carolyn Elefant on March 3, 2008 at 03:33 PM | Permalink | Comments (3)

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