Facebook’s newest feature may have you thinking twice about your status updates. However it’s not what you write that you should worry about, but rather where you write it. The social media giant has unveiled the latest addition to its series of status update features: an app that uses technology and data from the music streaming companies Spotify, Rdio, and Deezer to immediately recognize and provide a link for whatever music or T.V. show is playing in the background while you type your status. The new feature “listens” for 15 seconds and then provides you with a link to Spotify, Rdio, or Deezer for the song or T.V. show you are listening to depending on which of these apps you use.
The app works by “listening” to the song or television show being played for 15 seconds, translating these 15 seconds of song or show into a code and then trying to match this code with codes already stored in the Spotify, Rdio or Deezer databases. If there is a match, a link to the song or a link to the television show’s Facebook page will be attached to your status, just as a picture or a link to a website can be posted at the end of a status now. This feature will be released periodically by region and users must personally activate it through the options on the status bar in order for it to begin working.
However, this breakthrough has left many Facebook users with concerns about protecting their privacy, especially when they are in private places having private conversations. In a statement titled, “A New, Optional Way to Share and Discover Music, T.V. Shows and Movies,” Facebook attempted to quell public fears by explaining how the feature actually works:
If you share music, your friends can see a 30-second preview of the song. For TV shows, the story in News Feed will highlight the specific season and episode you’re watching… Here’s how it works: if you choose to turn the feature on, when you write a status update, the app converts any sound into an audio fingerprint on your phone. This fingerprint is sent to our servers to try and match it against our database of audio and TV fingerprints. By design, we do not store fingerprints from your device for any amount of time. And in any event, the fingerprints can’t be reversed into the original audio because they don’t contain enough information.
Facebook says that the information from these “fingerprints” is used to record the most popular songs and T.V. shows, but nothing more. This data helps the site increase its number of advertisers as well as allows them to better tailor the advertisements that you are shown while on Facebook, which is already done based on the pages you visit and “like” on the site.
The debate over whether or not Facebook is exceeding the boundaries of its rights and abilities echoes the debate over whether or not the American government is using legal methods of surveillance of the American public. In United States v. Oliva, 2012 WL 2948542 (9thCir. July 20, 2012), the court found that the government’s use of cellphones as microphones, even when a cellphone is turned off, is perfectly legal as long as the government has permission. Thus, an “optional” microphone feature from Facebook is unlikely to be deemed as surpassing the boundaries of the law.
While Facebook seems to be confident that its new addition will pose no risk to its users’ privacy, the fact that the government has the ability to order Facebook to grant it access to the private information of its users, and that it has exercised this right millions of times already, makes users wary of what the information gathered through this feature has the potential to do. The Facebook statement continued, “[n]o matter how interesting your conversation, this feature does not store sound or recordings. Facebook isn’t listening to or storing your conversations.”
Regardless, there are still possible e-discovery implications. While Facebook claims that it “does not store fingerprints from your device for any amount of time,” it does not appear to indicate what, if any, length of time it does store other information. In litigation, this new source of information could arguably be relevant to an action, triggering a preservation duty or at least be subject to subpoena. For example, in an emotional distress claim, learning the Plaintiff was listening to “Happy” by Pharrell Williams would jeopardize the Plaintiff’s claim and be helpful to a defendant.
With the unveiling of this new feature already hitting the United States, we will have to wait and see if anything comes of its legal implications or potential infringement on the privacy of the billions of Facebook users around the world. Concerned users should note that the feature is optional and must be activated by the user while he or she is making a status update.
A special thank you to Cathryn Ryan, an intern at Cullen and Dykman LLP, for her assistance with this blog post.