Campbell et al v. Facebook Inc.
Filing
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STIPULATION Regarding Judicially Noticeable Documents filed by Facebook Inc. (Jessen, Joshua) (Filed on 10/9/2014) Modified on 10/10/2014 (vlkS, COURT STAFF). Modified on 10/10/2014 (kk, COURT STAFF).
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GIBSON, DUNN & CRUTCHER LLP
JOSHUA A. JESSEN, SBN 222831
JJessen@gibsondunn.com
JEANA BISNAR MAUTE, SBN 290573
JBisnarMaute@gibsondunn.com
JESSICA S. OU, SBN 280534
JOu@gibsondunn.com
1881 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 849-5300
Facsimile: (650) 849-5333
GIBSON, DUNN & CRUTCHER LLP
GAIL E. LEES, SBN 90363
GLees@gibsondunn.com
CHRISTOPHER CHORBA, SBN 216692
CChorba@gibsondunn.com
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7000
Facsimile: (213) 229-7520
Attorneys for Defendant
FACEBOOK, INC.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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MATTHEW CAMPBELL, MICHAEL
HURLEY, and DAVID SHADPOUR,
Plaintiffs,
Case No. C 13-05996 PJH
CONSOLIDATED CLASS ACTION
JOINT STIPULATION REGARDING
JUDICIALLY NOTICEABLE
DOCUMENTS
v.
FACEBOOK, INC.,
Defendant.
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Gibson, Dunn &
Crutcher LLP
JOINT STIPULATION REGARDING JUDICIALLY NOTICEABLE DOCUMENTS
Case No. C 13-05996 PJH
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WHEREAS, on April 25, 2014, Plaintiffs filed a Consolidated Amended Complaint (“CAC”)
in this matter (Dkt. No. 25);
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WHEREAS, on June 17, 2014, Defendant Facebook, Inc. (“Facebook”) filed a Motion to
Dismiss the CAC (Dkt. No. 29);
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WHEREAS, Plaintiffs have filed an Opposition to Facebook’s Motion to Dismiss the CAC
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(Dkt. No. 31), and Facebook has filed a Reply in support of its Motion to Dismiss the CAC (Dkt. No.
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35);
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WHEREAS, in support of their respective arguments regarding Facebook’s Motion to
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Dismiss, Plaintiffs and Facebook (the “Parties”) have filed Requests for Judicial Notice (Dkt. Nos.
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30, 32), Plaintiffs have filed an Opposition to Facebook’s Request for Judicial notice (Dkt. No. 33),
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and Facebook has filed a Reply in support of its Request for Judicial Notice (Dkt. No. 36);
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WHEREAS, on October 1, 2014, the Court heard the Parties’ arguments on Facebook’s
Motion to Dismiss;
WHEREAS, at the Motion to Dismiss hearing, the Court requested that the Parties confer and
jointly stipulate as to the judicially noticeable nature of certain documents at issue; and
WHEREAS, the Court further requested that the Parties’ joint stipulation attach the judicially
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noticeable documents, including highlighting of the respective language relied upon by each of the
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Parties in each of the documents.
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THEREFORE, as instructed by the Court during the hearing on October 1, 2014, the parties
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have conferred and respectfully submit the attached documents for which this Court may take judicial
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notice in ruling on Facebook’s Motion to Dismiss:
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1. Exhibit A: A true and correct copy of Facebook’s current Statement of Rights and
Responsibilities, dated November 15, 2013;
2. Exhibit B: A true and correct copy of Facebook’s Statement of Rights and
Responsibilities, dated April 26, 2011;
3. Exhibit C: A true and correct copy of Facebook’s Statement of Rights and
Responsibilities, dated June 8, 2012;
4. Exhibit D: A true and correct copy of Facebook’s current Data Use Policy, dated
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Gibson, Dunn &
Crutcher LLP
JOINT STIPULATION REGARDING JUDICIALLY NOTICEABLE DOCUMENTS
Case No. C 13-05996 PJH
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November 15, 2013;
5. Exhibit E: A true and correct copy of Facebook’s Data Use Policy, dated September
7, 2011;
6. Exhibit F: A true and correct copy of Facebook’s Data Use Policy, dated June 8,
2012; and
7. Exhibit G: A true and correct copy of Senate Report No. 99-541, dated October 17,
1986.
Facebook has highlighted, in yellow, the language in Exhibits A, B, C, D, E, F, and G, on
which it relies in support of its Motion to Dismiss.
As Plaintiffs contend that there is no disclosure of the practice in question, there is no discrete
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text upon which to focus. Accordingly, Plaintiffs have highlighted in pink the sections generally
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relevant to the privacy of user-generated content, as it is Plaintiffs’ position that the documents must
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be read in their entirety.
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Dated: October 9, 2014
Respectfully submitted,
GIBSON, DUNN & CRUTCHER LLP
/s/
By:
JOSHUA A. JESSEN
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Attorneys for Defendant Facebook, Inc.
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LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
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By:
MICHAEL W. SOBOL
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Attorneys for Plaintiffs
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Gibson, Dunn &
Crutcher LLP
JOINT STIPULATION REGARDING JUDICIALLY NOTICEABLE DOCUMENTS
Case No. C 13-05996 PJH
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ATTORNEY ATTESTATION
Pursuant to Civil Local Rule 5-1, I, Joshua A. Jessen, hereby attest that concurrence in the
filing of this document has been obtained from Michael W. Sobol.
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Dated: October 9, 2014
Respectfully submitted,
GIBSON, DUNN & CRUTCHER LLP
/s/
By:
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JOSHUA A. JESSEN
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Attorneys for Defendant Facebook, Inc.
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Gibson, Dunn &
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JOINT STIPULATION REGARDING JUDICIALLY NOTICEABLE DOCUMENTS
Case No. C 13-05996 PJH
Exhibit A
This agreement was written in English (US). To the extent any translated version of this agreement conflicts with the
English version, the English version controls. Please note that Section 17 contains certain changes to the general terms
for users outside the United States.
Date of Last Revision: November 15, 2013.
Statement of Rights and Responsibilities
This Statement of Rights and Responsibilities ("Statement," "Terms," or "SRR") derives from the Facebook Principles,
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and is our terms of service that governs our relationship with users and others who interact with Facebook. By using or
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accessing Facebook, you agree to this Statement, as updated from time to time in accordance with Section 14 below.
Additionally, you will find resources at the end of this document that help you understand how Facebook works.
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your content and information. We
encourage you to read the Data Use Policy, and to use it to help you make informed decisions.
2. Sharing Your Content and Information
You own all of the content and information you post on Facebook, and you can control how it is shared through
your privacy and application settings. In addition:
1. For content that is covered by intellectual property rights, like photos and videos (IP content), you
specifically give us the following permission, subject to your privacy and application settings: you grant us
a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you
post on or in connection with Facebook (IP License). This IP License ends when you delete your IP
content or your account unless your content has been shared with others, and they have not deleted it.
2. When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer.
However, you understand that removed content may persist in backup copies for a reasonable period of
time (but will not be available to others).
3. When you use an application, the application may ask for your permission to access your content and
information as well as content and information that others have shared with you. We require applications
to respect your privacy, and your agreement with that application will control how the application can use,
store, and transfer that content and information. (To learn more about Platform, including how you can
control what information other people may share with applications, read our Data Use Policy and Platform
Page.)
4. When you publish content or information using the Public setting, it means that you are allowing everyone,
including people off of Facebook, to access and use that information, and to associate it with you (i.e., your
name and profile picture).
5. We always appreciate your feedback or other suggestions about Facebook, but you understand that we may
use them without any obligation to compensate you for them (just as you have no obligation to offer them).
3. Safety
We do our best to keep Facebook safe, but we cannot guarantee it. We need your help to keep Facebook safe,
which includes the following commitments by you:
1. You will not post unauthorized commercial communications (such as spam) on Facebook.
2. You will not collect users' content or information, or otherwise access Facebook, using automated means
(such as harvesting bots, robots, spiders, or scrapers) without our prior permission.
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3.
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You will not engage in unlawful multi-level marketing, such as a pyramid scheme, on Facebook.
You will not upload viruses or other malicious code.
You will not solicit login information or access an account belonging to someone else.
You will not bully, intimidate, or harass any user.
You will not post content that: is hate speech, threatening, or pornographic; incites violence; or contains
nudity or graphic or gratuitous violence.
You will not develop or operate a third-party application containing alcohol-related, dating or other mature
content (including advertisements) without appropriate age-based restrictions.
You will follow our Promotions Guidelines and all applicable laws if you publicize or offer any contest,
giveaway, or sweepstakes (“promotion”) on Facebook.
You will not use Facebook to do anything unlawful, misleading, malicious, or discriminatory.
You will not do anything that could disable, overburden, or impair the proper working or appearance of
Facebook, such as a denial of service attack or interference with page rendering or other Facebook
functionality.
You will not facilitate or encourage any violations of this Statement or our policies.
4. Registration and Account Security
Facebook users provide their real names and information, and we need your help to keep it that way. Here are
some commitments you make to us relating to registering and maintaining the security of your account:
1. You will not provide any false personal information on Facebook, or create an account for anyone other
than yourself without permission.
2. You will not create more than one personal account.
3. If we disable your account, you will not create another one without our permission.
4. You will not use your personal timeline primarily for your own commercial gain, and will use a Facebook
Page for such purposes.
5. You will not use Facebook if you are under 13.
6. You will not use Facebook if you are a convicted sex offender.
7. You will keep your contact information accurate and up-to-date.
8. You will not share your password (or in the case of developers, your secret key), let anyone else access
your account, or do anything else that might jeopardize the security of your account.
9. You will not transfer your account (including any Page or application you administer) to anyone without
first getting our written permission.
10. If you select a username or similar identifier for your account or Page, we reserve the right to remove or
reclaim it if we believe it is appropriate (such as when a trademark owner complains about a username that
does not closely relate to a user's actual name).
5. Protecting Other People's Rights
We respect other people's rights, and expect you to do the same.
1. You will not post content or take any action on Facebook that infringes or violates someone else's rights or
otherwise violates the law.
2. We can remove any content or information you post on Facebook if we believe that it violates this
Statement or our policies.
3. We provide you with tools to help you protect your intellectual property rights. To learn more, visit our
How to Report Claims of Intellectual Property Infringement page.
4. If we remove your content for infringing someone else's copyright, and you believe we removed it by
mistake, we will provide you with an opportunity to appeal.
5. If you repeatedly infringe other people's intellectual property rights, we will disable your account when
appropriate.
6. You will not use our copyrights or trademarks (including Facebook, the Facebook and F Logos, FB, Face,
Poke, Book and Wall), or any confusingly similar marks, except as expressly permitted by our Brand
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Usage Guidelines or with our prior written permission.
7. If you collect information from users, you will: obtain their consent, make it clear you (and not Facebook)
are the one collecting their information, and post a privacy policy explaining what information you collect
and how you will use it.
8. You will not post anyone's identification documents or sensitive financial information on Facebook.
9. You will not tag users or send email invitations to non-users without their consent. Facebook offers social
reporting tools to enable users to provide feedback about tagging.
6. Mobile and Other Devices
1. We currently provide our mobile services for free, but please be aware that your carrier's normal rates and
fees, such as text messaging and data charges, will still apply.
2. In the event you change or deactivate your mobile telephone number, you will update your account
information on Facebook within 48 hours to ensure that your messages are not sent to the person who
acquires your old number.
3. You provide consent and all rights necessary to enable users to sync (including through an application) their
devices with any information that is visible to them on Facebook.
7. Payments
If you make a payment on Facebook or use Facebook Credits, you agree to our Payments Terms.
8. Special Provisions Applicable to Social Plugins
If you include our Social Plugins, such as the Share or Like buttons on your website, the following additional
terms apply to you:
1. We give you permission to use Facebook's Social Plugins so that users can post links or content from your
website on Facebook.
2. You give us permission to use and allow others to use such links and content on Facebook.
3. You will not place a Social Plugin on any page containing content that would violate this Statement if
posted on Facebook.
9. Special Provisions Applicable to Developers/Operators of Applications and Websites
If you are a developer or operator of a Platform application or website, the following additional terms apply to
you:
1. You are responsible for your application and its content and all uses you make of Platform. This includes
ensuring your application or use of Platform meets our Facebook Platform Policies and our Advertising
Guidelines.
2. Your access to and use of data you receive from Facebook, will be limited as follows:
1. You will only request data you need to operate your application.
2. You will have a privacy policy that tells users what user data you are going to use and how you will
use, display, share, or transfer that data and you will include your privacy policy URL in the
Developer Application.
3. You will not use, display, share, or transfer a user’s data in a manner inconsistent with your privacy
policy.
4. You will delete all data you receive from us concerning a user if the user asks you to do so, and will
provide a mechanism for users to make such a request.
5. You will not include data you receive from us concerning a user in any advertising creative.
6. You will not directly or indirectly transfer any data you receive from us to (or use such data in
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connection with) any ad network, ad exchange, data broker, or other advertising related toolset, even
if a user consents to that transfer or use.
7. You will not sell user data. If you are acquired by or merge with a third party, you can continue to
use user data within your application, but you cannot transfer user data outside of your application.
8. We can require you to delete user data if you use it in a way that we determine is inconsistent with
users’ expectations.
9. We can limit your access to data.
10. You will comply with all other restrictions contained in our Facebook Platform Policies.
You will not give us information that you independently collect from a user or a user's content without that
user's consent.
You will make it easy for users to remove or disconnect from your application.
You will make it easy for users to contact you. We can also share your email address with users and others
claiming that you have infringed or otherwise violated their rights.
You will provide customer support for your application.
You will not show third party ads or web search boxes on www.facebook.com.
We give you all rights necessary to use the code, APIs, data, and tools you receive from us.
You will not sell, transfer, or sublicense our code, APIs, or tools to anyone.
You will not misrepresent your relationship with Facebook to others.
You may use the logos we make available to developers or issue a press release or other public statement so
long as you follow our Facebook Platform Policies.
We can issue a press release describing our relationship with you.
You will comply with all applicable laws. In particular you will (if applicable):
1. have a policy for removing infringing content and terminating repeat infringers that complies with the
Digital Millennium Copyright Act.
2. comply with the Video Privacy Protection Act (VPPA), and obtain any opt-in consent necessary from
users so that user data subject to the VPPA may be shared on Facebook. You represent that any
disclosure to us will not be incidental to the ordinary course of your business.
We do not guarantee that Platform will always be free.
You give us all rights necessary to enable your application to work with Facebook, including the right to
incorporate content and information you provide to us into streams, timelines, and user action stories.
You give us the right to link to or frame your application, and place content, including ads, around your
application.
We can analyze your application, content, and data for any purpose, including commercial (such as for
targeting the delivery of advertisements and indexing content for search).
To ensure your application is safe for users, we can audit it.
We can create applications that offer similar features and services to, or otherwise compete with, your
application.
10. About Advertisements and Other Commercial Content Served or Enhanced by Facebook
Our goal is to deliver advertising and other commercial or sponsored content that is valuable to our users and
advertisers. In order to help us do that, you agree to the following:
1. You give us permission to use your name, profile picture, content, and information in connection with
commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. This means,
for example, that you permit a business or other entity to pay us to display your name and/or profile picture
with your content or information, without any compensation to you. If you have selected a specific
audience for your content or information, we will respect your choice when we use it.
2. We do not give your content or information to advertisers without your consent.
3. You understand that we may not always identify paid services and communications as such.
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11. Special Provisions Applicable to Advertisers
You can target your desired audience by buying ads on Facebook or our publisher network. The following
additional terms apply to you if you place an order through our online advertising portal (Order):
1. When you place an Order, you will tell us the type of advertising you want to buy, the amount you want to
spend, and your bid. If we accept your Order, we will deliver your ads as inventory becomes available.
When serving your ad, we do our best to deliver the ads to the audience you specify, although we cannot
guarantee in every instance that your ad will reach its intended target.
2. In instances where we believe doing so will enhance the effectiveness of your advertising campaign, we
may broaden the targeting criteria you specify.
3. You will pay for your Orders in accordance with our Payments Terms. The amount you owe will be
calculated based on our tracking mechanisms.
4. Your ads will comply with our Advertising Guidelines.
5. We will determine the size, placement, and positioning of your ads.
6. We do not guarantee the activity that your ads will receive, such as the number of clicks your ads will get.
7. We cannot control how clicks are generated on your ads. We have systems that attempt to detect and filter
certain click activity, but we are not responsible for click fraud, technological issues, or other potentially
invalid click activity that may affect the cost of running ads.
8. You can cancel your Order at any time through our online portal, but it may take up to 24 hours before the
ad stops running. You are responsible for paying for all ads that run.
9. Our license to run your ad will end when we have completed your Order. You understand, however, that if
users have interacted with your ad, your ad may remain until the users delete it.
10. We can use your ads and related content and information for marketing or promotional purposes.
11. You will not issue any press release or make public statements about your relationship with Facebook
without our prior written permission.
12. We may reject or remove any ad for any reason.
13. If you are placing ads on someone else's behalf, you must have permission to place those ads, including the
following:
1. You warrant that you have the legal authority to bind the advertiser to this Statement.
2. You agree that if the advertiser you represent violates this Statement, we may hold you responsible
for that violation.
12. Special Provisions Applicable to Pages
If you create or administer a Page on Facebook, or run a promotion or an offer from your Page, you agree to our
Pages Terms.
13. Special Provisions Applicable to Software
1. If you download or use our software, such as a stand-alone software product, an app, or a browser plugin,
you agree that from time to time, the software may download and install upgrades, updates and additional
features from us in order to improve, enhance, and further develop the software.
2. You will not modify, create derivative works of, decompile, or otherwise attempt to extract source code
from us, unless you are expressly permitted to do so under an open source license, or we give you express
written permission.
14. Amendments
1. Unless we make a change for legal or administrative reasons, or to correct an inaccurate statement, we will
provide you with seven (7) days notice (for example, by posting the change on the Facebook Site
Governance Page) and an opportunity to comment on changes to this Statement. You can also visit our
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Facebook Site Governance Page and "like" the Page to get updates about changes to this Statement.
2. If we make changes to policies referenced in or incorporated by this Statement, we may provide notice on
the Site Governance Page.
3. Your continued use of Facebook following changes to our terms constitutes your acceptance of our
amended terms.
15. Termination
If you violate the letter or spirit of this Statement, or otherwise create risk or possible legal exposure for us, we
can stop providing all or part of Facebook to you. We will notify you by email or at the next time you attempt to
access your account. You may also delete your account or disable your application at any time. In all such cases,
this Statement shall terminate, but the following provisions will still apply: 2.2, 2.4, 3-5, 8.2, 9.1-9.3, 9.9, 9.10,
9.13, 9.15, 9.18, 10.3, 11.2, 11.5, 11.6, 11.9, 11.12, 11.13, and 15-19.
16. Disputes
1. You will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to
this Statement or Facebook exclusively in the U.S. District Court for the Northern District of California or
a state court located in San Mateo County, and you agree to submit to the personal jurisdiction of such
courts for the purpose of litigating all such claims. The laws of the State of California will govern this
Statement, as well as any claim that might arise between you and us, without regard to conflict of law
provisions.
2. If anyone brings a claim against us related to your actions, content or information on Facebook, you will
indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including
reasonable legal fees and costs) related to such claim. Although we provide rules for user conduct, we do
not control or direct users' actions on Facebook and are not responsible for the content or information users
transmit or share on Facebook. We are not responsible for any offensive, inappropriate, obscene, unlawful
or otherwise objectionable content or information you may encounter on Facebook. We are not responsible
for the conduct, whether online or offline, or any user of Facebook.
3. WE TRY TO KEEP FACEBOOK UP, BUG-FREE, AND SAFE, BUT YOU USE IT AT YOUR OWN
RISK. WE ARE PROVIDING FACEBOOK AS IS WITHOUT ANY EXPRESS OR IMPLIED
WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
WE DO NOT GUARANTEE THAT FACEBOOK WILL ALWAYS BE SAFE, SECURE OR ERRORFREE OR THAT FACEBOOK WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR
IMPERFECTIONS. FACEBOOK IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT,
INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS,
OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND
UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE
AGAINST ANY SUCH THIRD PARTIES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE
CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. WE WILL NOT BE LIABLE
TO YOU FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR
INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS STATEMENT OR
FACEBOOK, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
OUR AGGREGATE LIABILITY ARISING OUT OF THIS STATEMENT OR FACEBOOK WILL NOT
EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE
PAID US IN THE PAST TWELVE MONTHS. APPLICABLE LAW MAY NOT ALLOW THE
LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL
DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN
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SUCH CASES, FACEBOOK'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW.
17. Special Provisions Applicable to Users Outside the United States
We strive to create a global community with consistent standards for everyone, but we also strive to respect local
laws. The following provisions apply to users and non-users who interact with Facebook outside the United
States:
1. You consent to having your personal data transferred to and processed in the United States.
2. If you are located in a country embargoed by the United States, or are on the U.S. Treasury Department's
list of Specially Designated Nationals you will not engage in commercial activities on Facebook (such as
advertising or payments) or operate a Platform application or website. You will not use Facebook if you
are prohibited from receiving products, services, or software originating from the United States.
3. Certain specific terms that apply only for German users are available here.
18. Definitions
1. By "Facebook" we mean the features and services we make available, including through (a) our website at
www.facebook.com and any other Facebook branded or co-branded websites (including sub-domains,
international versions, widgets, and mobile versions); (b) our Platform; (c) social plugins such as the Like
button, the Share button and other similar offerings and (d) other media, software (such as a toolbar),
devices, or networks now existing or later developed.
2. By "Platform" we mean a set of APIs and services (such as content) that enable others, including
application developers and website operators, to retrieve data from Facebook or p
provide data to us.
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3. By "information" we mean facts and other information about you, including actions taken by users and nony
users who interact with Facebook.
4. By "content" we mean anything you or other users post on Facebook that would not be included in the
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definition of information.
5. By "data" or "user data" or "user's data" we mean any data, including a user's content or information that
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you or third parties can retrieve from Facebook or provide to Facebook through Platform.
6. By "post" we mean post on Facebook or otherwise make available by using Facebook.
7. By "use" we mean use, run, copy, publicly perform or display, distribute, modify, translate, and create
derivative works of.
8. By "active registered user" we mean a user who has logged into Facebook at least once in the previous 30
days.
9. By "application" we mean any application or website that uses or accesses Platform, as well as anything
else that receives or has received data from us. If you no longer access Platform but have not deleted all
data from us, the term application will apply until you delete the data.
19. Other
1. If you are a resident of or have your principal place of business in the US or Canada, this Statement is an
agreement between you and Facebook, Inc. Otherwise, this Statement is an agreement between you and
Facebook Ireland Limited. References to “us,” “we,” and “our” mean either Facebook, Inc. or Facebook
Ireland Limited, as appropriate.
2. This Statement makes up the entire agreement between the parties regarding Facebook, and supersedes any
prior agreements.
3. If any portion of this Statement is found to be unenforceable, the remaining portion will remain in full force
and effect.
4. If we fail to enforce any of this Statement, it will not be considered a waiver.
5. Any amendment to or waiver of this Statement must be made in writing and signed by us.
6. You will not transfer any of your rights or obligations under this Statement to anyone else without our
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consent.
7. All of our rights and obligations under this Statement are freely assignable by us in connection with a
merger, acquisition, or sale of assets, or by operation of law or otherwise.
8. Nothing in this Statement shall prevent us from complying with the law.
9. This Statement does not confer any third party beneficiary rights.
10. We reserve all rights not expressly granted to you.
11. You will comply with all applicable laws when using or accessing Facebook.
You may also want to review the following documents, which provide additional information about your use of
Facebook:
Data Use Policy: The Data Use Policy contains information to help you understand how we collect and use
information.
Payment Terms: These additional terms apply to all payments made on or through Facebook.
Platform Page: This page helps you better understand what happens when you add a third-party application or use
Facebook Connect, including how they may access and use your data.
Facebook Platform Policies: These guidelines outline the policies that apply to applications, including Connect
sites.
Advertising Guidelines: These guidelines outline the policies that apply to advertisements placed on Facebook.
Promotions Guidelines: These guidelines outline the policies that apply if you offer contests, sweepstakes, and
other types of promotions on Facebook.
Facebook Brand Resources: These guidelines outline the policies that apply to use of Facebook trademarks, logos
and screenshots.
How to Report Claims of Intellectual Property Infringement
Pages Terms: These guidelines apply to your use of Facebook Pages.
Community Standards: These guidelines outline our expectations regarding the content you post to Facebook and
your activity on Facebook.
To access the Statement of Rights and Responsibilities in several different languages, change the language setting for
your Facebook session by clicking on the language link in the left corner of most pages. If the Statement is not
available in the language you select, we will default to the English version.
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Exhibit B
file:///Users/jfarren/Desktop/untitled.html
This agreement was written in English (US). To the extent any translated version of this agreement
conflicts with the English version, the English version controls. Please note that Section 16 contains
certain changes to the general terms for users outside the United States.
Date of Last Revision: April 26, 2011.
Statement of Rights and Responsibilities
This Statement of Rights and Responsibilities (Statement) derives from the Facebook Principles, and
Principles,
p
governs our relationship with users and others who interact with Facebook. By using or accessing
Facebook, you agree to this Statement.
1. Privacy
Your privacy is very important to us. We designed our Privacy Policy to make important
y
y
disclosures about how you can use Facebook to share with others and how we collect and can
use your content and information. We encourage you to read the Privacy Policy, and to use it to
help make informed decisions.
2. Sharing Your Content and Information
You own all of the content and information you post on Facebook, and you can control how it is
shared through your privacy and application settings. In addition:
1. For content that is covered by intellectual property rights, like photos and videos (IP
content), you specifically give us the following permission, subject to your privacy and
application settings: you grant us a non-exclusive, transferable, sub-licensable,
royalty-free, worldwide license to use any IP content that you post on or in connection
with Facebook (IP License). This IP License ends when you delete your IP content or
your account unless your content has been shared with others, and they have not deleted
it.
2. When you delete IP content, it is deleted in a manner similar to emptying the recycle bin
on a computer. However, you understand that removed content may persist in backup
copies for a reasonable period of time (but will not be available to others).
3. When you use an application, your content and information is shared with the
application. We require applications to respect your privacy, and your agreement with
that application will control how the application can use, store, and transfer that content
and information. (To learn more about Platform, read our Privacy Policy and Platform
Page.)
4. When you publish content or information using the everyone setting, it means that you
are allowing everyone, including people off of Facebook, to access and use that
information, and to associate it with you (i.e., your name and profile picture).
5. We always appreciate your feedback or other suggestions about Facebook, but you
understand that we may use them without any obligation to compensate you for them
(just as you have no obligation to offer them).
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3. Safety
We do our best to keep Facebook safe, but we cannot guarantee it. We need your help to do that,
which includes the following commitments:
1. You will not send or otherwise post unauthorized commercial communications (such as
spam) on Facebook.
2. You will not collect users' content or information, or otherwise access Facebook, using
automated means (such as harvesting bots, robots, spiders, or scrapers) without our
permission.
3. You will not engage in unlawful multi-level marketing, such as a pyramid scheme, on
Facebook.
4. You will not upload viruses or other malicious code.
5. You will not solicit login information or access an account belonging to someone else.
6. You will not bully, intimidate, or harass any user.
7. You will not post content that: is hateful, threatening, or pornographic; incites violence;
or contains nudity or graphic or gratuitous violence.
8. You will not develop or operate a third-party application containing alcohol-related or
other mature content (including advertisements) without appropriate age-based
restrictions.
9. You will follow our Promotions Guidelines and all applicable laws if you publicize or
offer any contest, giveaway, or sweepstakes (“promotion”) on Facebook.
10. You will not use Facebook to do anything unlawful, misleading, malicious, or
discriminatory.
11. You will not do anything that could disable, overburden, or impair the proper working of
Facebook, such as a denial of service attack.
12. You will not facilitate or encourage any violations of this Statement.
4. Registration and Account Security
Facebook users provide their real names and information, and we need your help to keep it that
way. Here are some commitments you make to us relating to registering and maintaining the
security of your account:
1. You will not provide any false personal information on Facebook, or create an account
for anyone other than yourself without permission.
2. You will not create more than one personal profile.
3. If we disable your account, you will not create another one without our permission.
4. You will not use your personal profile for your own commercial gain (such as selling
your status update to an advertiser).
5. You will not use Facebook if you are under 13.
6. You will not use Facebook if you are a convicted sex offender.
7. You will keep your contact information accurate and up-to-date.
8. You will not share your password, (or in the case of developers, your secret key), let
anyone else access your account, or do anything else that might jeopardize the security of
your account.
9. You will not transfer your account (including any page or application you administer) to
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anyone without first getting our written permission.
10. If you select a username for your account we reserve the right to remove or reclaim it if
we believe appropriate (such as when a trademark owner complains about a username
that does not closely relate to a user's actual name).
5. Protecting Other People's Rights
We respect other people's rights, and expect you to do the same.
1. You will not post content or take any action on Facebook that infringes or violates
someone else's rights or otherwise violates the law.
2. We can remove any content or information you post on Facebook if we believe that it
violates this Statement.
3. We will provide you with tools to help you protect your intellectual property rights. To
learn more, visit our How to Report Claims of Intellectual Property Infringement page.
4. If we remove your content for infringing someone else's copyright, and you believe we
removed it by mistake, we will provide you with an opportunity to appeal.
5. If you repeatedly infringe other people's intellectual property rights, we will disable your
account when appropriate.
6. You will not use our copyrights or trademarks (including Facebook, the Facebook and F
Logos, FB, Face, Poke, Wall and 32665), or any confusingly similar marks, without our
written permission.
7. If you collect information from users, you will: obtain their consent, make it clear you
(and not Facebook) are the one collecting their information, and post a privacy policy
explaining what information you collect and how you will use it.
8. You will not post anyone's identification documents or sensitive financial information on
Facebook.
9. You will not tag users or send email invitations to non-users without their consent.
6. Mobile
1. We currently provide our mobile services for free, but please be aware that your carrier's
normal rates and fees, such as text messaging fees, will still apply.
2. In the event you change or deactivate your mobile telephone number, you will update
your account information on Facebook within 48 hours to ensure that your messages are
not sent to the person who acquires your old number.
3. You provide all rights necessary to enable users to sync (including through an
application) their contact lists with any basic information and contact information that is
visible to them on Facebook, as well as your name and profile picture.
7. Payments and Deals
1. If you make a payment on Facebook or use Facebook Credits, you agree to our Payments
Terms.
2. If purchase a Deal, you agree to our Deals Terms.
3. If you provide a Deal or partner with us to provide a Deal, you agree to the Merchant
Deal Terms in addition to any other agreements you may have with us.
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8. Special Provisions Applicable to Share Links
If you include our Share Link button on your website, the following additional terms apply to
you:
1. We give you permission to use Facebook's Share Link button so that users can post links
or content from your website on Facebook.
2. You give us permission to use and allow others to use such links and content on
Facebook.
3. You will not place a Share Link button on any page containing content that would violate
this Statement if posted on Facebook.
9. Special Provisions Applicable to Developers/Operators of Applications and Websites
If you are a developer or operator of a Platform application or website, the following additional
terms apply to you:
1. You are responsible for your application and its content and all uses you make of
Platform. This includes ensuring your application or use of Platform meets our Facebook
Platform Policies and our Advertising Guidelines.
2. Your access to and use of data you receive from Facebook, will be limited as follows:
1. You will only request data you need to operate your application.
2. You will have a privacy policy that tells users what user data you are going to use
and how you will use, display, share, or transfer that data and you will include your
privacy policy URL in the Developer Application.
3. You will not use, display, share, or transfer a user’s data in a manner inconsistent
with your privacy policy.
4. You will delete all data you receive from us concerning a user if the user asks you
to do so, and will provide a mechanism for users to make such a request.
5. You will not include data you receive from us concerning a user in any advertising
creative.
6. You will not directly or indirectly transfer any data you receive from us to (or use
such data in connection with) any ad network, ad exchange, data broker, or other
advertising related toolset, even if a user consents to that transfer or use.
7. You will not sell user data. If you are acquired by or merge with a third party, you
can continue to use user data within your application, but you cannot transfer user
data outside of your application.
8. We can require you to delete user data if you use it in a way that we determine is
inconsistent with users’ expectations.
9. We can limit your access to data.
10. You will comply with all other restrictions contained in our Facebook Platform
Policies.
3. You will not give us information that you independently collect from a user or a user's
content without that user's consent.
4. You will make it easy for users to remove or disconnect from your application.
5. You will make it easy for users to contact you. We can also share your email address with
users and others claiming that you have infringed or otherwise violated their rights.
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6. You will provide customer support for your application.
7. You will not show third party ads or web search boxes on Facebook.
8. We give you all rights necessary to use the code, APIs, data, and tools you receive from
us.
9. You will not sell, transfer, or sublicense our code, APIs, or tools to anyone.
10. You will not misrepresent your relationship with Facebook to others.
11. You may use the logos we make available to developers or issue a press release or other
public statement so long as you follow our Facebook Platform Policies.
12. We can issue a press release describing our relationship with you.
13. You will comply with all applicable laws. In particular you will (if applicable):
1. have a policy for removing infringing content and terminating repeat infringers that
complies with the Digital Millennium Copyright Act.
2. comply with the Video Privacy Protection Act (VPPA), and obtain any opt-in
consent necessary from users so that user data subject to the VPPA may be shared
on Facebook. You represent that any disclosure to us will not be incidental to the
ordinary course of your business.
14. We do not guarantee that Platform will always be free.
15. You give us all rights necessary to enable your application to work with Facebook,
including the right to incorporate content and information you provide to us into streams,
profiles, and user action stories.
16. You give us the right to link to or frame your application, and place content, including
ads, around your application.
17. We can analyze your application, content, and data for any purpose, including
commercial (such as for targeting the delivery of advertisements and indexing content for
search).
18. To ensure your application is safe for users, we can audit it.
19. We can create applications that offer similar features and services to, or otherwise
compete with, your application.
10. About Advertisements and Other Commercial Content Served or Enhanced by Facebook
Our goal is to deliver ads that are not only valuable to advertisers, but also valuable to you. In
order to do that, you agree to the following:
1. You can use your privacy settings to limit how your name and profile picture may be
associated with commercial, sponsored, or related content (such as a brand you like)
served or enhanced by us. You give us permission to use your name and profile picture in
connection with that content, subject to the limits you place.
2. We do not give your content or information to advertisers without your consent.
3. You understand that we may not always identify paid services and communications as
such.
11. Special Provisions Applicable to Advertisers
You can target your specific audience by buying ads on Facebook or our publisher network. The
following additional terms apply to you if you place an order through our online advertising
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portal (Order):
1. When you place an Order, you will tell us the type of advertising you want to buy, the
amount you want to spend, and your bid. If we accept your Order, we will deliver your
ads as inventory becomes available. When serving your ad, we do our best to deliver the
ads to the audience you specify, although we cannot guarantee in every instance that your
ad will reach its intended target.
2. In instances where we believe doing so will enhance the effectiveness of your advertising
campaign, we may broaden the targeting criteria you specify.
3. You will pay for your Orders in accordance with our Payments Terms. The amount you
owe will be calculated based on our tracking mechanisms.
4. Your ads will comply with our Advertising Guidelines.
5. We will determine the size, placement, and positioning of your ads.
6. We do not guarantee the activity that your ads will receive, such as the number of clicks
you will get.
7. We cannot control how people interact with your ads, and are not responsible for click
fraud or other improper actions that affect the cost of running ads. We do, however, have
systems to detect and filter certain suspicious activity, learn more here.
8. You can cancel your Order at any time through our online portal, but it may take up to 24
hours before the ad stops running. You are responsible for paying for those ads.
9. Our license to run your ad will end when we have completed your Order. You understand,
however, that if users have interacted with your ad, your ad may remain until the users
delete it.
10. We can use your ads and related content and information for marketing or promotional
purposes.
11. You will not issue any press release or make public statements about your relationship
with Facebook without written permission.
12. We may reject or remove any ad for any reason.
13. If you are placing ads on someone else's behalf, we need to make sure you have
permission to place those ads, including the following:
1. You warrant that you have the legal authority to bind the advertiser to this
Statement.
2. You agree that if the advertiser you represent violates this Statement, we may hold
you responsible for that violation.
12. Special Provisions Applicable to Pages
If you create or administer a Page on Facebook, you agree to our Pages Terms.
13. Amendments
1. We can change this Statement if we provide you notice (by posting the change on the
Facebook Site Governance Page) and an opportunity to comment. To get notice of any
future changes to this Statement, visit our Facebook Site Governance Page and become a
fan.
2. For changes to sections 7, 8, 9, and 11 (sections relating to payments, application
developers, website operators, and advertisers), we will give you a minimum of three
days notice. For all other changes we will give you a minimum of seven days notice. All
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such comments must be made on the Facebook Site Governance Page.
3. If more than 7,000 users comment on the proposed change, we will also give you the
opportunity to participate in a vote in which you will be provided alternatives. The vote
shall be binding on us if more than 30% of all active registered users as of the date of the
notice vote.
4. We can make changes for legal or administrative reasons, or to correct an inaccurate
statement, upon notice without opportunity to comment.
14. Termination
If you violate the letter or spirit of this Statement, or otherwise create risk or possible legal
exposure for us, we can stop providing all or part of Facebook to you. We will notify you by
email or at the next time you attempt to access your account. You may also delete your account
or disable your application at any time. In all such cases, this Statement shall terminate, but the
following provisions will still apply: 2.2, 2.4, 3-5, 8.2, 9.1-9.3, 9.9, 9.10, 9.13, 9.15, 9.18, 10.3,
11.2, 11.5, 11.6, 11.9, 11.12, 11.13, and 14-18.
15. Disputes
1. You will resolve any claim, cause of action or dispute (claim) you have with us arising
out of or relating to this Statement or Facebook exclusively in a state or federal court
located in Santa Clara County. The laws of the State of California will govern this
Statement, as well as any claim that might arise between you and us, without regard to
conflict of law provisions. You agree to submit to the personal jurisdiction of the courts
located in Santa Clara County, California for the purpose of litigating all such claims.
2. If anyone brings a claim against us related to your actions, content or information on
Facebook, you will indemnify and hold us harmless from and against all damages, losses,
and expenses of any kind (including reasonable legal fees and costs) related to such
claim.
3. WE TRY TO KEEP FACEBOOK UP, BUG-FREE, AND SAFE, BUT YOU USE IT AT
YOUR OWN RISK. WE ARE PROVIDING FACEBOOK AS IS WITHOUT ANY
EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THAT
FACEBOOK WILL BE SAFE OR SECURE. FACEBOOK IS NOT RESPONSIBLE
FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES,
AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND
AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN,
ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU
HAVE AGAINST ANY SUCH THIRD PARTIES. IF YOU ARE A CALIFORNIA
RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. WE WILL
NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR OTHER
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CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING
OUT OF OR IN CONNECTION WITH THIS STATEMENT OR FACEBOOK, EVEN
IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR
AGGREGATE LIABILITY ARISING OUT OF THIS STATEMENT OR FACEBOOK
WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR
THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF
LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES,
FACEBOOK'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW.
16. Special Provisions Applicable to Users Outside the United States
We strive to create a global community with consistent standards for everyone, but we also
strive to respect local laws. The following provisions apply to users outside the United States:
1. You consent to having your personal data transferred to and processed in the United
States.
2. If you are located in a country embargoed by the United States, or are on the U.S.
Treasury Department's list of Specially Designated Nationals you will not engage in
commercial activities on Facebook (such as advertising or payments) or operate a
Platform application or website.
3. Certain specific terms that apply only for German users are available here.
17. Definitions
1. By Facebook we mean the features and services we make available, including through (a)
our website at www.facebook.com and any other Facebook branded or co-branded
websites (including sub-domains, international versions, widgets, and mobile versions);
(b) our Platform; (c) social plugins such as the like button, the share button and other
similar offerings and (d) other media, software (such as a toolbar), devices, or networks
now existing or later developed.
2. By Platform we mean a set of APIs and services that enable others, including application
developers and website operators, to retrieve data from Facebook or provide data to us.
3. By information we mean facts and other information about you, including actions you
take.
4. By content we mean anything you post on Facebook that would not be included in the
definition of information.
5. By data we mean content and information that third parties can retrieve from Facebook or
an
nd
provide to Facebook through Platform.
6. By post we mean post on Facebook or otherwise make available to us (such as by using
an application).
7. By use we mean use, copy, publicly perform or display, distribute, modify, translate, and
create derivative works of.
8. By active registered user we mean a user who has logged into Facebook at least once in
the previous 30 days.
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9. By application we mean any application or website that uses or accesses Platform, as well
as anything else that receives or has received data from us. If you no longer access
Platform but have not deleted all data from us, the term application will apply until you
delete the data.
18. Other
1. If you are a resident of or have your principal place of business in the US or Canada, this
Statement is an agreement between you and Facebook, Inc. Otherwise, this Statement is
an agreement between you and Facebook Ireland Limited. References to “us,” “we,” and
“our” mean either Facebook, Inc. or Facebook Ireland Limited, as appropriate.
2. This Statement makes up the entire agreement between the parties regarding Facebook,
and supersedes any prior agreements.
3. If any portion of this Statement is found to be unenforceable, the remaining portion will
remain in full force and effect.
4. If we fail to enforce any of this Statement, it will not be considered a waiver.
5. Any amendment to or waiver of this Statement must be made in writing and signed by us.
6. You will not transfer any of your rights or obligations under this Statement to anyone else
without our consent.
7. All of our rights and obligations under this Statement are freely assignable by us in
connection with a merger, acquisition, or sale of assets, or by operation of law or
otherwise.
8. Nothing in this Statement shall prevent us from complying with the law.
9. This Statement does not confer any third party beneficiary rights.
10. You will comply with all applicable laws when using or accessing Facebook.
You may also want to review the following documents:
Privacy Policy: The Privacy Policy is designed to help you understand how we collect and use
information.
Payment Terms: These additional terms apply to all payments made on or through Facebook.
Platform Page: This page helps you better understand what happens when you add a third-party
application or use Facebook Connect, including how they may access and use your data.
Facebook Platform Policies: These guidelines outline the policies that apply to applications,
including Connect sites.
Advertising Guidelines: These guidelines outline the policies that apply to advertisements
placed on Facebook.
Promotions Guidelines: These guidelines outline the policies that apply if you have obtained
written pre-approval from us to offer contests, sweepstakes, and other types of promotions on
Facebook.
How to Report Claims of Intellectual Property Infringement
How to Appeal Claims of Copyright Infringement
Pages Terms
To access the Statement of Rights and Responsibilities in several different languages,
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change the language setting for your Facebook session by clicking on the language link in
the left corner of most pages. If the Statement is not available in the language you select,
we will default to the English version.
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Exhibit C
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This agreement was written in English (US). To the extent any translated version of this agreement
conflicts with the English version, the English version controls. Please note that Section 17 contains
certain changes to the general terms for users outside the United States.
Date of Last Revision: June 8, 2012.
Statement of Rights and Responsibilities
This Statement of Rights and Responsibilities ("Statement," "Terms," or "SRR") derives from the
Facebook Principles, and is our terms of service that governs our relationship with users and others
Principles,
p
who interact with Facebook. By using or accessing Facebook, you agree to this Statement, as updated
from time to time in accordance with Section 14 below. Additionally, you will find resources at the
end of this document that help you understand how Facebook works.
1. Privacy
Your privacy is very important to us. We designed our Data Use Policy to make important
y
disclosures about how you can use Facebook to share with others and how we collect and can
use your content and information. We encourage you to read the Data Use Policy, and to use it
to help you make informed decisions.
2. Sharing Your Content and Information
You own all of the content and information you post on Facebook, and you can control how it is
shared through your privacy and application settings. In addition:
1. For content that is covered by intellectual property rights, like photos and videos (IP
content), you specifically give us the following permission, subject to your privacy and
application settings: you grant us a non-exclusive, transferable, sub-licensable,
royalty-free, worldwide license to use any IP content that you post on or in connection
with Facebook (IP License). This IP License ends when you delete your IP content or
your account unless your content has been shared with others, and they have not deleted
it.
2. When you delete IP content, it is deleted in a manner similar to emptying the recycle bin
on a computer. However, you understand that removed content may persist in backup
copies for a reasonable period of time (but will not be available to others).
3. When you use an application, the application may ask for your permission to access your
content and information as well as content and information that others have shared with
you. We require applications to respect your privacy, and your agreement with that
application will control how the application can use, store, and transfer that content and
information. (To learn more about Platform, including how you can control what
information other people may share with applications, read our Data Use Policy and
Platform Page.)
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4. When you publish content or information using the Public setting, it means that you are
allowing everyone, including people off of Facebook, to access and use that information,
and to associate it with you (i.e., your name and profile picture).
5. We always appreciate your feedback or other suggestions about Facebook, but you
understand that we may use them without any obligation to compensate you for them
(just as you have no obligation to offer them).
3. Safety
We do our best to keep Facebook safe, but we cannot guarantee it. We need your help to keep
Facebook safe, which includes the following commitments by you:
1. You will not post unauthorized commercial communications (such as spam) on Facebook.
2. You will not collect users' content or information, or otherwise access Facebook, using
automated means (such as harvesting bots, robots, spiders, or scrapers) without our prior
permission.
3. You will not engage in unlawful multi-level marketing, such as a pyramid scheme, on
Facebook.
4. You will not upload viruses or other malicious code.
5. You will not solicit login information or access an account belonging to someone else.
6. You will not bully, intimidate, or harass any user.
7. You will not post content that: is hate speech, threatening, or pornographic; incites
violence; or contains nudity or graphic or gratuitous violence.
8. You will not develop or operate a third-party application containing alcohol-related,
dating or other mature content (including advertisements) without appropriate age-based
restrictions.
9. You will follow our Promotions Guidelines and all applicable laws if you publicize or
offer any contest, giveaway, or sweepstakes (“promotion”) on Facebook.
10. You will not use Facebook to do anything unlawful, misleading, malicious, or
discriminatory.
11. You will not do anything that could disable, overburden, or impair the proper working or
appearance of Facebook, such as a denial of service attack or interference with page
rendering or other Facebook functionality.
12. You will not facilitate or encourage any violations of this Statement or our policies.
4. Registration and Account Security
Facebook users provide their real names and information, and we need your help to keep it that
way. Here are some commitments you make to us relating to registering and maintaining the
security of your account:
1. You will not provide any false personal information on Facebook, or create an account
for anyone other than yourself without permission.
2. You will not create more than one personal account.
3. If we disable your account, you will not create another one without our permission.
4. You will not use your personal timeline for your own commercial gain (such as selling
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your status update to an advertiser).
You will not use Facebook if you are under 13.
You will not use Facebook if you are a convicted sex offender.
You will keep your contact information accurate and up-to-date.
You will not share your password (or in the case of developers, your secret key), let
anyone else access your account, or do anything else that might jeopardize the security of
your account.
9. You will not transfer your account (including any Page or application you administer) to
anyone without first getting our written permission.
10. If you select a username or similar identifier for your account or Page, we reserve the
right to remove or reclaim it if we believe it is appropriate (such as when a trademark
owner complains about a username that does not closely relate to a user's actual name).
5.
6.
7.
8.
5. Protecting Other People's Rights
We respect other people's rights, and expect you to do the same.
1. You will not post content or take any action on Facebook that infringes or violates
someone else's rights or otherwise violates the law.
2. We can remove any content or information you post on Facebook if we believe that it
violates this Statement or our policies.
3. We provide you with tools to help you protect your intellectual property rights. To learn
more, visit our How to Report Claims of Intellectual Property Infringement page.
4. If we remove your content for infringing someone else's copyright, and you believe we
removed it by mistake, we will provide you with an opportunity to appeal.
5. If you repeatedly infringe other people's intellectual property rights, we will disable your
account when appropriate.
6. You will not use our copyrights or trademarks (including Facebook, the Facebook and F
Logos, FB, Face, Poke, Book and Wall), or any confusingly similar marks, except as
expressly permitted by our Brand Usage Guidelines or with our prior written permission.
7. If you collect information from users, you will: obtain their consent, make it clear you
(and not Facebook) are the one collecting their information, and post a privacy policy
explaining what information you collect and how you will use it.
8. You will not post anyone's identification documents or sensitive financial information on
Facebook.
9. You will not tag users or send email invitations to non-users without their consent.
Facebook offers social reporting tools to enable users to provide feedback about tagging.
6. Mobile and Other Devices
1. We currently provide our mobile services for free, but please be aware that your carrier's
normal rates and fees, such as text messaging fees, will still apply.
2. In the event you change or deactivate your mobile telephone number, you will update
your account information on Facebook within 48 hours to ensure that your messages are
not sent to the person who acquires your old number.
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3. You provide consent and all rights necessary to enable users to sync (including through
an application) their devices with any information that is visible to them on Facebook.
7. Payments
If you make a payment on Facebook or use Facebook Credits, you agree to our Payments
Terms.
8. Special Provisions Applicable to Social Plugins
If you include our Social Plugins, such as the Share or Like buttons on your website, the
following additional terms apply to you:
1. We give you permission to use Facebook's Social Plugins so that users can post links or
content from your website on Facebook.
2. You give us permission to use and allow others to use such links and content on
Facebook.
3. You will not place a Social Plugin on any page containing content that would violate this
Statement if posted on Facebook.
9. Special Provisions Applicable to Developers/Operators of Applications and Websites
If you are a developer or operator of a Platform application or website, the following additional
terms apply to you:
1. You are responsible for your application and its content and all uses you make of
Platform. This includes ensuring your application or use of Platform meets our Facebook
Platform Policies and our Advertising Guidelines.
2. Your access to and use of data you receive from Facebook, will be limited as follows:
1. You will only request data you need to operate your application.
2. You will have a privacy policy that tells users what user data you are going to use
and how you will use, display, share, or transfer that data and you will include your
privacy policy URL in the Developer Application.
3. You will not use, display, share, or transfer a user’s data in a manner inconsistent
with your privacy policy.
4. You will delete all data you receive from us concerning a user if the user asks you
to do so, and will provide a mechanism for users to make such a request.
5. You will not include data you receive from us concerning a user in any advertising
creative.
6. You will not directly or indirectly transfer any data you receive from us to (or use
such data in connection with) any ad network, ad exchange, data broker, or other
advertising related toolset, even if a user consents to that transfer or use.
7. You will not sell user data. If you are acquired by or merge with a third party, you
can continue to use user data within your application, but you cannot transfer user
data outside of your application.
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3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
8. We can require you to delete user data if you use it in a way that we determine is
inconsistent with users’ expectations.
9. We can limit your access to data.
10. You will comply with all other restrictions contained in our Facebook Platform
Policies.
You will not give us information that you independently collect from a user or a user's
content without that user's consent.
You will make it easy for users to remove or disconnect from your application.
You will make it easy for users to contact you. We can also share your email address with
users and others claiming that you have infringed or otherwise violated their rights.
You will provide customer support for your application.
You will not show third party ads or web search boxes on www.facebook.com.
We give you all rights necessary to use the code, APIs, data, and tools you receive from
us.
You will not sell, transfer, or sublicense our code, APIs, or tools to anyone.
You will not misrepresent your relationship with Facebook to others.
You may use the logos we make available to developers or issue a press release or other
public statement so long as you follow our Facebook Platform Policies.
We can issue a press release describing our relationship with you.
You will comply with all applicable laws. In particular you will (if applicable):
1. have a policy for removing infringing content and terminating repeat infringers that
complies with the Digital Millennium Copyright Act.
2. comply with the Video Privacy Protection Act (VPPA), and obtain any opt-in
consent necessary from users so that user data subject to the VPPA may be shared
on Facebook. You represent that any disclosure to us will not be incidental to the
ordinary course of your business.
We do not guarantee that Platform will always be free.
You give us all rights necessary to enable your application to work with Facebook,
including the right to incorporate content and information you provide to us into streams,
timelines, and user action stories.
You give us the right to link to or frame your application, and place content, including
ads, around your application.
We can analyze your application, content, and data for any purpose, including
commercial (such as for targeting the delivery of advertisements and indexing content for
search).
To ensure your application is safe for users, we can audit it.
We can create applications that offer similar features and services to, or otherwise
compete with, your application.
10. About Advertisements and Other Commercial Content Served or Enhanced by Facebook
Our goal is to deliver ads and commercial content that are valuable to our users and advertisers.
In order to help us do that, you agree to the following:
1. You can use your privacy settings to limit how your name and profile picture may be
associated with commercial, sponsored, or related content (such as a brand you like)
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served or enhanced by us. You give us permission to use your name and profile picture in
connection with that content, subject to the limits you place.
2. We do not give your content or information to advertisers without your consent.
3. You understand that we may not always identify paid services and communications as
such.
11. Special Provisions Applicable to Advertisers
You can target your desired audience by buying ads on Facebook or our publisher network. The
following additional terms apply to you if you place an order through our online advertising
portal (Order):
1. When you place an Order, you will tell us the type of advertising you want to buy, the
amount you want to spend, and your bid. If we accept your Order, we will deliver your
ads as inventory becomes available. When serving your ad, we do our best to deliver the
ads to the audience you specify, although we cannot guarantee in every instance that your
ad will reach its intended target.
2. In instances where we believe doing so will enhance the effectiveness of your advertising
campaign, we may broaden the targeting criteria you specify.
3. You will pay for your Orders in accordance with our Payments Terms. The amount you
owe will be calculated based on our tracking mechanisms.
4. Your ads will comply with our Advertising Guidelines.
5. We will determine the size, placement, and positioning of your ads.
6. We do not guarantee the activity that your ads will receive, such as the number of clicks
your ads will get.
7. We cannot control how clicks are generated on your ads. We have systems that attempt to
detect and filter certain click activity, but we are not responsible for click fraud,
technological issues, or other potentially invalid click activity that may affect the cost of
running ads.
8. You can cancel your Order at any time through our online portal, but it may take up to 24
hours before the ad stops running. You are responsible for paying for all ads that run.
9. Our license to run your ad will end when we have completed your Order. You understand,
however, that if users have interacted with your ad, your ad may remain until the users
delete it.
10. We can use your ads and related content and information for marketing or promotional
purposes.
11. You will not issue any press release or make public statements about your relationship
with Facebook without our prior written permission.
12. We may reject or remove any ad for any reason.
13. If you are placing ads on someone else's behalf, you must have permission to place those
ads, including the following:
1. You warrant that you have the legal authority to bind the advertiser to this
Statement.
2. You agree that if the advertiser you represent violates this Statement, we may hold
you responsible for that violation.
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12. Special Provisions Applicable to Pages
If you create or administer a Page on Facebook, you agree to our Pages Terms.
13. Special Provisions Applicable to Software
1. If you download our software, such as a stand-alone software product or a browser
plugin, you agree that from time to time, the software may download upgrades, updates
and additional features from us in order to improve, enhance and further develop the
software.
2. You will not modify, create derivative works of, decompile or otherwise attempt to
extract source code from us, unless you are expressly permitted to do so under an open
source license or we give you express written permission.
14. Amendments
1. We can change this Statement if we provide you notice (by posting the change on the
Facebook Site Governance Page) and an opportunity to comment. To get notice of any
future changes to this Statement, visit our Facebook Site Governance Page and "like" the
Page.
2. For changes to sections 7, 8, 9, and 11 (sections relating to payments, application
developers, website operators, and advertisers), we will give you a minimum of three
days notice. For all other changes we will give you a minimum of seven days notice.
Comments to proposed changes will be made on the Facebook Site Governance Page.
3. If more than 7,000 users post a substantive comment on a particular proposed change, we
will also give you the opportunity to participate in a vote in which you will be provided
alternatives. The vote shall be binding on us if more than 30% of all active registered
users as of the date of the notice vote.
4. If we make changes to policies referenced in or incorporated by this Statement, we may
provide notice on the Site Governance Page.
5. We can make changes for legal or administrative reasons, or to correct an inaccurate
statement, upon notice without opportunity to comment.
6. Your continued use of Facebook following changes to our terms constitutes your
acceptance of our amended terms.
15. Termination
If you violate the letter or spirit of this Statement, or otherwise create risk or possible legal
exposure for us, we can stop providing all or part of Facebook to you. We will notify you by
email or at the next time you attempt to access your account. You may also delete your account
or disable your application at any time. In all such cases, this Statement shall terminate, but the
following provisions will still apply: 2.2, 2.4, 3-5, 8.2, 9.1-9.3, 9.9, 9.10, 9.13, 9.15, 9.18, 10.3,
11.2, 11.5, 11.6, 11.9, 11.12, 11.13, and 15-19.
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16. Disputes
1. You will resolve any claim, cause of action or dispute (claim) you have with us arising
out of or relating to this Statement or Facebook exclusively in a state or federal court
located in Santa Clara County. The laws of the State of California will govern this
Statement, as well as any claim that might arise between you and us, without regard to
conflict of law provisions. You agree to submit to the personal jurisdiction of the courts
located in Santa Clara County, California for the purpose of litigating all such claims.
2. If anyone brings a claim against us related to your actions, content or information on
Facebook, you will indemnify and hold us harmless from and against all damages, losses,
and expenses of any kind (including reasonable legal fees and costs) related to such
claim. Although we provide rules for user conduct, we do not control or direct users'
actions on Facebook and are not responsible for the content or information users transmit
or share on Facebook. We are not responsible for any offensive, inappropriate, obscene,
unlawful or otherwise objectionable content or information you may encounter on
Facebook. We are not responsible for the conduct, whether online or offline, or any user
of Facebook.
3. WE TRY TO KEEP FACEBOOK UP, BUG-FREE, AND SAFE, BUT YOU USE IT AT
YOUR OWN RISK. WE ARE PROVIDING FACEBOOK AS IS WITHOUT ANY
EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THAT
FACEBOOK WILL ALWAYS BE SAFE, SECURE OR ERROR-FREE OR THAT
FACEBOOK WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR
IMPERFECTIONS. FACEBOOK IS NOT RESPONSIBLE FOR THE ACTIONS,
CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE
US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY
CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN
ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH
THIRD PARTIES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE
CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES
NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED
HIS SETTLEMENT WITH THE DEBTOR. WE WILL NOT BE LIABLE TO YOU
FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT,
OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS
STATEMENT OR FACEBOOK, EVEN IF WE HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY ARISING
OUT OF THIS STATEMENT OR FACEBOOK WILL NOT EXCEED THE GREATER
OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID US IN
THE PAST TWELVE MONTHS. APPLICABLE LAW MAY NOT ALLOW THE
LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION
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MAY NOT APPLY TO YOU. IN SUCH CASES, FACEBOOK'S LIABILITY WILL BE
LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
17. Special Provisions Applicable to Users Outside the United States
We strive to create a global community with consistent standards for everyone, but we also
strive to respect local laws. The following provisions apply to users and non-users who interact
with Facebook outside the United States:
1. You consent to having your personal data transferred to and processed in the United
States.
2. If you are located in a country embargoed by the United States, or are on the U.S.
Treasury Department's list of Specially Designated Nationals you will not engage in
commercial activities on Facebook (such as advertising or payments) or operate a
Platform application or website.
3. Certain specific terms that apply only for German users are available here.
18. Definitions
1. By "Facebook" we mean the features and services we make available, including through
(a) our website at www.facebook.com and any other Facebook branded or co-branded
websites (including sub-domains, international versions, widgets, and mobile versions);
(b) our Platform; (c) social plugins such as the Like button, the Share button and other
similar offerings and (d) other media, software (such as a toolbar), devices, or networks
now existing or later developed.
2. By "Platform" we mean a set of APIs and services (such as content) that enable others,
including application developers and website operators, to retrieve data from Facebook or
provide data to us.
3. By "information" we mean facts and other information about you, including actions taken
by users and non-users who interact with Facebook.
4. By "content" we mean anything you or other users post on Facebook that would not be
included in the definition of information.
5. By "data" or "user data" or "user's data" we mean any data, including a user's content or
information that you or third parties can retrieve from Facebook or provide to Facebook
through Platform.
6. By "post" we mean post on Facebook or otherwise make available by using Facebook.
7. By "use" we mean use, copy, publicly perform or display, distribute, modify, translate,
and create derivative works of.
8. By "active registered user" we mean a user who has logged into Facebook at least once in
the previous 30 days.
9. By "application" we mean any application or website that uses or accesses Platform, as
well as anything else that receives or has received data from us. If you no longer access
Platform but have not deleted all data from us, the term application will apply until you
delete the data.
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19. Other
1. If you are a resident of or have your principal place of business in the US or Canada, this
Statement is an agreement between you and Facebook, Inc. Otherwise, this Statement is
an agreement between you and Facebook Ireland Limited. References to “us,” “we,” and
“our” mean either Facebook, Inc. or Facebook Ireland Limited, as appropriate.
2. This Statement makes up the entire agreement between the parties regarding Facebook,
and supersedes any prior agreements.
3. If any portion of this Statement is found to be unenforceable, the remaining portion will
remain in full force and effect.
4. If we fail to enforce any of this Statement, it will not be considered a waiver.
5. Any amendment to or waiver of this Statement must be made in writing and signed by us.
6. You will not transfer any of your rights or obligations under this Statement to anyone else
without our consent.
7. All of our rights and obligations under this Statement are freely assignable by us in
connection with a merger, acquisition, or sale of assets, or by operation of law or
otherwise.
8. Nothing in this Statement shall prevent us from complying with the law.
9. This Statement does not confer any third party beneficiary rights.
10. We reserve all rights not expressly granted to you.
11. You will comply with all applicable laws when using or accessing Facebook.
You may also want to review the following documents, which provide additional information
about your use of Facebook:
Data Use Policy: The Data Use Policy contains information to help you understand how we
collect and use information.
Payment Terms: These additional terms apply to all payments made on or through Facebook.
Platform Page: This page helps you better understand what happens when you add a third-party
application or use Facebook Connect, including how they may access and use your data.
Facebook Platform Policies: These guidelines outline the policies that apply to applications,
including Connect sites.
Advertising Guidelines: These guidelines outline the policies that apply to advertisements
placed on Facebook.
Promotions Guidelines: These guidelines outline the policies that apply if you offer contests,
sweepstakes, and other types of promotions on Facebook.
Brand Permissions Center: These guidelines outline the policies that apply to use of Facebook
trademarks, logos and screenshots.
How to Report Claims of Intellectual Property Infringement
Pages Terms: These guidelines apply to your use of Facebook Pages.
Community Standards: These guidelines outline our expectations regarding the content you post
to Facebook and your activity on Facebook.
To access the Statement of Rights and Responsibilities in several different languages, change the
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language setting for your Facebook session by clicking on the language link in the left corner of most
pages. If the Statement is not available in the language you select, we will default to the English
version.
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Exhibit D
Data Use Policy
Date of Last Revision: November 15, 2013
Information we receive and how it is used
Information we receive about you
Public information
Usernames and User IDs
How we use the information we receive
Deleting and deactivating your account
Sharing and finding you on Facebook
Control each time you post
Control over your timeline
Finding you on Facebook
Access on phones and other devices
Activity log
What your friends and others share about you
Groups
Pages
Other websites and applications
About Facebook Platform
Controlling what information you share with applications
Controlling what is shared when the people you share with use applications
Logging in to another site using Facebook
About social plugins
About instant personalization
Public search engines
Advertising and Facebook content
Advertising
Facebook content
Cookies, pixels and other similar technologies
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Some other things you need to know
I. Information we receive and how it is used
Information we receive about you
We receive a number of different types of information about you, including:
Your information
Your information is the information that's required when you sign up for the site, as well as the information you choose
to share.
Registration information: When you sign up for Facebook, you are required to provide information such as your
name, email address, birthday, and gender. In some cases, you may be able to register using other information,
like your telephone number.
Information y choose to share: Your information also includes the information y choose to share on
you
you
Facebook, such as when you post a status update, upload a photo, or comment on a friend's story.
It also includes the information you choose to share when you communicate with us, such as when you contact us using
an email address, or when you take an action, such as when you add a friend, like a Page or a website, add a place to
your story, use our contact importers, or indicate you are in a relationship.
Your name, profile pictures, cover photos, gender, networks, username and User ID are treated just like information
you choose to make public.
Your birthday allows us to do things like show you age-appropriate content and advertisements.
Information others share about you
We receive information about you from your friends and others, such as when they upload your contact information,
post a photo of you, tag you in a photo or status update, or at a location, or add you to a group.
When people use Facebook, they may store and share information about you and others that they have, such as when
they upload and manage their invites and contacts.
Other information we receive about y
you
We also receive other types of information about you:
We receive data about y whenever y use or are running Facebook, such as when y look at another p
you
you
g
,
you
person's
timeline, send or receive a message, search for a friend or a Page, click on, view or otherwise interact with things,
,
g ,
g ,
use a Facebook mobile app, or make purchases through Facebook.
When you post things like photos or videos on Facebook, we may receive additional related data (or metadata),
such as the time, date, and place you took the photo or video.
We receive data from or about the computer, mobile phone, or other devices you use to install Facebook apps or
to access Facebook, including when multiple users log in from the same device. This may include network and
communication information, such as your IP address or mobile phone number, and other information about
things like your internet service, operating system, location, the type (including identifiers) of the device or
browser you use, or the pages you visit. For example, we may get your GPS or other location information so we
can tell you if any of your friends are nearby, or we could request device information to improve how our apps
work on your device.
We receive data whenever you visit a game, application, or website that uses Facebook Platform or visit a site
with a Facebook feature (such as a social plugin), sometimes through cookies. This may include the date and time
you visit the site; the web address, or URL, you're on; technical information about the IP address, browser and
the operating system you use; and, if you are logged in to Facebook, your User ID.
Sometimes we get data from our affiliates or our advertising partners, customers and other third parties that helps
us (or them) deliver ads, understand online activity, and generally make Facebook better. For example, an
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advertiser may tell us information about you (like how you responded to an ad on Facebook or on another site) in
order to measure the effectiveness of - and improve the quality of - ads.
As described in "How we use the information we receive" we also put together data from the information we already
have about you, your friends, and others, so we can offer and suggest a variety of services and features. For example,
we may make friend suggestions, pick stories for your News Feed, or suggest people to tag in photos. We may put
together your current city with GPS and other location information we have about you to, for example, tell you and
your friends about people or events nearby, or offer deals to you in which you might be interested. We may also put
together data about you to serve you ads or other content that might be more relevant to you.
When we get your GPS location, we put it together with other location information we have about you (like your
current city). But we only keep it until it is no longer useful to provide you services, like keeping your last GPS
coordinates to send you relevant notifications.
We only provide data to our advertising partners or customers after we have removed your name and any other
personally identifying information from it, or have combined it with other people's data in a way that it no longer
personally identifies you.
Public information
When we use the phrase "public information" (which we sometimes refer to as "Everyone information"), we mean the
information you choose to make public, as well as information that is always publicly available.
Information you choose to make public
Choosing to make your information public is exactly what it sounds like: anyone, including people off Facebook, will
be able to see it. Learn more.
Choosing to make your information public also means that this information:
can be associated with you (i.e., your name, profile pictures, cover photos, timeline, User ID, username, etc.) even
off Facebook;
can show up when someone does a search on Facebook or on a public search engine;
will be accessible to the Facebook-integrated games, applications, and websites you and your friends use; and
will be accessible to anyone who uses our APIs such as our Graph API.
Sometimes you will not be able to select an audience when you post something (like when you write on a Page's wall or
comment on a news article that uses our comments plugin). This is because some types of stories are always public
stories. As a general rule, you should assume that if you do not see a sharing icon, the information will be publicly
available.
When others share information about you, they can also choose to make it public.
Information that is always publicly available
The types of information listed below are always publicly available, and they are treated just like information you
decided to make public:
Name: This helps your friends and family find you. If you are uncomfortable sharing your real name, you can
always delete your account.
Profile Pictures and Cover Photos: These help your friends and family recognize you. If you are uncomfortable
making any of these photos public, you can always delete them. Unless you delete them, when you add a new
profile picture or cover photo, the previous photo will remain public in your profile picture or cover photo album.
Networks: This helps you see who you will be sharing information with before you choose "Friends and
Networks" as a custom audience. If you are uncomfortable making your network public, you can leave the
network.
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Gender: This allows us to refer to you properly.
Username and User ID: These allow you to give out a custom link to your timeline or Page, receive email at
your Facebook email address, and help make Facebook Platform possible.
Usernames and User IDs
Usernames and User IDs are the same thing – a way to identify you on Facebook. A User ID is a string of numbers and
a username generally is some variation of your name. With your username, you get a custom link (a Facebook URL,
such as www.facebook.com/username) to your timeline that you can give out to people or post on external websites.
If someone has your Username or User ID, they can use it to access information about you through the facebook.com
website. For example, if someone has your Username, they can type facebook.com/Username into their browser and
see your public information as well as anything else you've let them see. Similarly, someone with your Username or
User ID can access information about you through our APIs, such as our Graph API. Specifically, they can access your
public information, along with your age range, language and country.
If you do not want your information to be accessible to Platform applications, you can turn off all Platform applications
from your Privacy Settings. If you turn off Platform you will no longer be able to use any games or other applications
until you turn Platform back on. For more information about the information that apps receive when you visit them, see
Other websites and applications.
If you want to see information available about you through our Graph API, just type
https://graph.facebook.com/[User ID or Username]?metadata=1 into your browser.
Your Facebook email address includes your public username like so: username@facebook.com. People can use your
Facebook email address to send you messages and anyone in a message conversation can reply to it.
How we use the information we receive
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p p y;
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provide you with location features and services, like telling you and your friends when something is going on
nearby;
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to make suggestions to you and other users on Facebook, such as: suggesting that y
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for internal operations, including troubleshooting, data analysis, testing, research and service improvement.
Granting us permission to use your information not only allows us to provide Facebook as it exists today, but it also
allows us to provide you with innovative features and services we develop in the future that use the information we
receive about you in new ways.
While y are allowing us to use the information we receive about y , y always own all of y
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you, you
y
your information. Your
trust is important to us, which is why we don't share information we receive about you with others unless we have:
received your permission;
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policy; or
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removed your name and any other personally identifying information from it.
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Of course, for information others share about you, they control how it is shared.
We store data for as long as it is necessary to provide products and services to you and others, including those described
above. Typically, information associated with your account will be kept until your account is deleted. For certain
categories of data, we may also tell you about specific data retention practices.
We may enable access to public information that has been shared through our services.
We may allow service providers to access information so they can help us provide services.
We are able to suggest that your friend tag you in a picture by scanning and comparing your friend's pictures to
information we've put together from your profile pictures and the other photos in which you've been tagged. If this
feature is enabled for you, you can control whether we suggest that another user tag you in a photo using the “Timeline
and Tagging” settings. Learn more at: https://www.facebook.com/help/tag-suggestions
Deleting and deactivating your account
If you want to stop using your account, you can either deactivate or delete it.
Deactivate
Deactivating your account puts your account on hold. Other users will no longer see your timeline, but we do not delete
any of your information. Deactivating an account is the same as you telling us not to delete any information because
you might want to reactivate your account at some point in the future. You can deactivate your account at:
https://www.facebook.com/settings?tab=security
Your friends will still see you listed in their list of friends while your account is deactivated.
Deletion
When you delete your account, it is permanently deleted from Facebook. It typically takes about one month to delete an
account, but some information may remain in backup copies and logs for up to 90 days. You should only delete your
account if you are sure you never want to reactivate it. You can delete your account at:
https://www.facebook.com/help/contact.php?show_form=delete_account
Learn more at: https://www.facebook.com/help/?faq=356107851084108
Certain information is needed to provide you with services, so we only delete this information after you delete your
account. Some of the things you do on Facebook aren’t stored in your account, like posting to a group or sending
someone a message (where your friend may still have a message you sent, even after you delete your account). That
information remains after you delete your account.
II. Sharing and finding you on Facebook
Control each time you post
Whenever you post content (like a status update, photo or check-in), you can select a specific audience, or even
customize your audience. To do this, simply click on the sharing icon and choose who can see it.
Choose this icon if you want to make something Public. Choosing to make something public is exactly what it sounds
like. It means that anyone, including people off Facebook, will be able to see or access it.
Choose this icon if you want to share with your Facebook Friends.
Choose this icon if you want to Customize your audience. You can also use this to hide your story from specific
people.
If you tag someone, that person and their friends can see your story no matter what audience you selected. The same is
true when you approve a tag someone else adds to your story.
Always think before you post. Just like anything else you post on the web or send in an email, information you share on
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Facebook can be copied or re-shared by anyone who can see it.
Although you choose with whom you share, there may be ways for others to determine information about you. For
example, if you hide your birthday so no one can see it on your timeline, but friends post “happy birthday!” on your
timeline, people may determine your birthday.
When you comment on or "like" someone else's story, or write on their timeline, that person gets to select the audience.
For example, if a friend posts a Public story and you comment on it, your comment will be Public. Often, you can see
the audience someone selected for their story before you post a comment; however, the person who posted the story
may later change their audience. So, if you comment on a story, and the story’s audience changes, the new audience can
see your comment.
You can control who can see the Facebook Pages you've "liked" by visiting your timeline, clicking on the Likes box on
your timeline, and then clicking "Edit."
Sometimes you will not see a sharing icon when you post something (like when you write on a Page's wall or comment
on a news article that uses our comments plugin). This is because some types of stories are always public stories. As a
general rule, you should assume that if you do not see a sharing icon, the information will be publicly available.
Control over your timeline
Whenever you add things to your timeline you can select a specific audience, or even customize your audience. To do
this, simply click on the sharing icon and choose who can see it.
Choose this icon if you want to make something Public. Choosing to make something public is exactly what it sounds
like. It means that anyone, including people off Facebook, will be able to see or access it.
Choose this icon if you want to share with your Facebook Friends.
Choose this icon if you want to Customize your audience. You can also use this to hide the item on your timeline from
specific people.
When you select an audience for your friend list, you are only controlling who can see the entire list of your friends on
your timeline. We call this a timeline visibility control. This is because your friend list is always available to the games,
applications and websites you use, and your friendships may be visible elsewhere (such as on your friends' timelines or
in searches). For example, if you select "Only Me" as the audience for your friend list, but your friend sets her friend
list to "Public," anyone will be able to see your connection on your friend's timeline.
Similarly, if you choose to hide your gender, it only hides it on your timeline. This is because we, just like the
applications you and your friends use, need to use your gender to refer to you properly on the site.
When someone tags you in a story (such as a photo, status update or check-in), you can choose whether you want that
story to appear on your timeline. You can either approve each story individually or approve all stories by your friends.
If you approve a story and later change your mind, you can remove it from your timeline.
When you hide things on your timeline, like posts or connections, it means those things will not appear on your
timeline. But, remember, anyone in the audience of those posts or who can see a connection may still see it elsewhere,
like on someone else's timeline or in search results. You can also delete your posts or change the audience of content
you post, which means you can remove people from or add people to the audience of the content.
People on Facebook may be able to see mutual friends, even if they cannot see your entire list of friends.
Some things (like your name, profile pictures and cover photos) do not have sharing icons because they are always
publicly available. As a general rule, you should assume that if you do not see a sharing icon, the information will be
publicly available.
Finding you on Facebook
To make it easier for your friends to find you, we allow anyone with your contact information (such as email address or
telephone number) to find you through the Facebook search bar at the top of most pages, as well as other tools we
provide, such as contact importers - even if you have not shared your contact information with them on Facebook.
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You can choose who can look up your timeline using the email address or telephone number you added to your timeline
through your Privacy Settings. But remember that people can still find you or a link to your timeline on Facebook
through other people and the things they share about you or through other posts, like if you are tagged in a friend's
photo or post something to a public page.
Your settings do not control whether people can find you or a link to your timeline when they search for content they
have permission to see, like a photo or other story in which you’ve been tagged.
Access on phones and other devices
Once you share information with your friends and others, they may be able to sync it with or access it via their mobile
phones and other devices. For example, if you share a photo on Facebook, someone viewing that photo could save it
using Facebook tools or by other methods offered by their device or browser. Similarly, if you share your contact
information with someone or invite someone to an event, they may be able to use Facebook or third party applications
or devices to sync that information. Or, if one of your friends has a Facebook application on one of their devices, your
information (such as the things you post or photos you share) may be stored on or accessed by their device.
You should only share information with people you trust because they will be able to save it or re-share it with others,
including when they sync the information to a device.
Activity log
Your activity log is a place where you can go to view most of your information on Facebook, including things you’ve
hidden from your timeline. You can use this log to manage your content. For example, you can do things like delete
stories, change the audience of your stories or stop an application from publishing to your timeline on your behalf.
When you hide something from your timeline, you are not deleting it. This means that the story may be visible
elsewhere, like in your friends’ News Feed. If you want to delete a story you posted, choose the delete option.
What your friends and others share about you
Links and Tags
Anyone can add a link to a story. Links are references to something on the Internet; anything from a website to a Page
or timeline on Facebook. For example, if you are writing a story, you might include a link to a blog you are referencing
or a link to the blogger’s Facebook timeline. If someone clicks on a link to another person’s timeline, they’ll only see
the things that they are allowed to see.
A tag is a special type of link to someone’s timeline that suggests that the tagged person add your story to their timeline.
In cases where the tagged person isn’t included in the audience of the story, it will add them so they can see it. Anyone
can tag you in anything. Once you are tagged, you and your friends will be able to see it (such as in News Feed or in
search).
You can choose whether a story you've been tagged in appears on your timeline. You can either approve each story
individually or approve all stories by your friends. If you approve a story and later change your mind, you can always
remove it from your timeline.
If you do not want someone to tag you, we encourage you to reach out to them and give them that feedback. If that does
not work, you can block them. This will prevent them from tagging you going forward.
Social reporting is a way for people to quickly and easily ask for help from someone they trust. Learn more at:
https://www.facebook.com/note.php?note_id=196124227075034&__adt=3&__att=iframe
If you are linked to in a private space (such as a message or a group) only the people who can see the private space can
see the link. Similarly, if you are linked to a comment, only the people who can see the comment can see the link.
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Other information
As described in the "what your friends and others share about you" section of this policy, your friends and others may
share information about you. They may share photos or other information about you and tag you in their posts. If you
do not like a particular post, tell them or report the post.
Groups
Once you are in a Group, anyone in that Group can add you to a subgroup. When someone adds you to a Group, you
will be listed as “invited” until you visit the Group. You can always leave a Group, which will prevent others from
adding you to it again.
Pages
Facebook Pages are public pages. Companies use Pages to share information about their products. Celebrities use Pages
to talk about their latest projects. And communities use Pages to discuss topics of interest, everything from baseball to
the opera.
Because Pages are public, information you share with a Page is public information. This means, for example, that if you
post a comment on a Page, that comment may be used by the Page owner off Facebook, and anyone can see it.
When you "like" a Page, you create a connection to that Page. The connection is added to your timeline and your friends
may see it in their News Feeds. You may be contacted by or receive updates from the Page, such as in your News Feed
and your messages. You can remove the Pages you've "liked" through your timeline or on the Page.
Some Pages contain content that comes directly from the Page owner. Page owners can do this through online plugins,
such as an iframe, and it works just like the games and other applications you use through Facebook. Because this
content comes directly from the Page owner, that Page may be able to collect information about you, just like any
website.
Page administrators may have access to insights data, which will tell them generally about the people that visit their
Page (as opposed to information about specific people). They may also know when you’ve made a connection to their
Page because you’ve liked their Page or posted a comment.
To control who can see the Facebook Pages you've liked, visit our Help Center.
III. Other websites and applications
About Facebook Platform
Facebook Platform (or simply Platform) refers to the way we help you share your information with the games,
applications, and websites you and your friends use. Facebook Platform also lets you bring your friends with you, so
you can connect with them off Facebook. In these two ways, Facebook Platform helps you make your experiences on
the web more personalized and social.
Remember that these games, applications and websites are created and maintained by other businesses and developers
who are not part of, or controlled by, Facebook, so you should always make sure to read their terms of service and
privacy policies to understand how they treat your data.
Controlling what information you share with applications
When you connect with a game, application or website - such as by going to a game, logging in to a website using your
Facebook account, or adding an app to your timeline - we give the game, application, or website (sometimes referred to
as just "applications" or "apps") your basic info (we sometimes call this your "public profile"), which includes your
User ID and your public information. We also give them your friends' User IDs (also called your friend list) as part of
your basic info.
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Your friend list helps the application make your experience more social because it lets you find your friends on that
application. Your User ID helps the application personalize your experience because it can connect your account on
that application with your Facebook account, and it can access your basic info, which includes your public information
and friend list. This includes the information you choose to make public, as well as information that is always publicly
available. If the application needs additional information, such as your stories, photos or likes, it will have to ask you
for specific permission.
The “Apps” setting lets you control the applications you use. You can see the permissions you have given these
applications, the last time an application accessed your information, and the audience on Facebook for timeline stories
and activity the application posts on your behalf. You can also remove applications you no longer want, or turn off all
Platform applications. When you turn all Platform applications off, your User ID is no longer given to applications,
even when your friends use those applications. But you will no longer be able to use any games, applications or
websites through Facebook.
When you first visit an app, Facebook lets the app know your language, your country, and whether you are in an age
group, for instance, under 18, between 18-20, or 21 and over. Age range lets apps provide you with age-appropriate
content. If you install the app, it can access, store and update the information you’ve shared. Apps you’ve installed can
update their records of your basic info, age range, language and country. If you haven’t used an app in a while, you
should consider removing it. Once you remove an app, it won’t be able to continue to update the additional information
you’ve given them permission to access, but it may still hold the information you have already shared. You always can
contact the app directly and request that they delete your data. Learn more at: https://www.facebook.com/help/howapps-work
Sometimes a game console, mobile phone, or other device might ask for permission to share specific information with
the games and applications you use on that device. If you say okay, those applications will not be able to access any
other information about you without asking specific permission from you or your friends.
Sites and apps that use Instant Personalization receive your User ID and friend list when you visit them.
You always can remove apps you’ve installed by using your app settings at: https://www.facebook.com/settings/?
tab=applications. But remember, apps may still be able to access your information when the people you share with use
them. And, if you’ve removed an application and want it to delete the information you’ve already shared with it, you
should contact the application. Visit the application’s page on Facebook or its own website to learn more about the app.
For example, Apps may have reasons (e.g. legal obligations) to retain some data that you share with them.
Controlling what is shared when the people you share with use applications
Just like when y share information by email or elsewhere on the web, information y share on Facebook can be reyou
y
,
you
shared. This means that if y share something on Facebook, anyone who can see it can share it with others, including
you
g
the games, applications, and websites they use.
Your friends and the other people you share information with often want to share your information with applications to
make their experiences on those applications more personalized and social. For example, one of your friends might
want to use a music application that allows them to see what their friends are listening to. To get the full benefit of that
application, your friend would want to give the application her friend list – which includes your User ID – so the
application knows which of her friends is also using it. Your friend might also want to share the music you “like” on
Facebook. If you have made that information public, then the application can access it just like anyone else. But if
you’ve shared your likes with just your friends, the application could ask your friend for permission to share them.
You can control most of the information other people can share with applications they use from the “App” settings page.
But these controls do not let you limit access to your public information and friend list.
If you want to completely block applications from getting your information when your friends and others use them, you
will need to turn off all Platform applications. This means that you will no longer be able to use any third-party
Facebook-integrated games, applications or websites.
If an application asks permission from someone else to access your information, the application will be allowed to use
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that information only in connection with the person that gave the permission, and no one else.
For example, some apps use information such as your friends list, to personalize your experience or show you which of
your friends use that particular app.
Logging in to another site using Facebook
Facebook Platform lets you log into other applications and websites using your Facebook account. When you log in
using Facebook, we give the site your User ID (just like when you connect with any other application), but we do not
share your email address or password with that website through this process without your permission.
If you already have an account on that website, the site may also be able to connect that account with your Facebook
account. Sometimes it does this using what is called an "email hash", which is similar to searching for someone on
Facebook using an email address. Only the email addresses in this case are hashed so no email addresses are actually
shared between Facebook and the website.
How it works
The website sends over a hashed version of your email address, and we match it with a database of email addresses that
we have also hashed. If there is a match, then we tell the website the User ID associated with the email address. This
way, when you log into the website using Facebook, the website can link your Facebook account to your account on
that website.
About social plugins
Social plugins are buttons, boxes, and stories (such as the Like button) that other websites can use to present Facebook
content to you and create more social and personal experiences for you. While you view these buttons, boxes, and
stories on other sites, the content comes directly from Facebook.
Sometimes plugins act just like applications. You can spot one of these plugins because it will ask you for permission to
access your information or to publish information back to Facebook. For example, if you use a registration plugin on a
website, the plugin will ask your permission to share your basic info with the website to make it easier for you to
register for the website. Similarly, if you use an "Add To Timeline" plugin, the plugin will ask for your permission to
publish stories about your activities on that website to Facebook.
If you make something public using a plugin, such as posting a public comment on a newspaper's website, then that
website can access your comment (along with your User ID) just like everyone else.
If you post something using a social plugin and you do not see a sharing icon, you should assume that story is Public.
For example, if you post a comment through a Facebook comment plugin on a site, your story is Public and everyone,
including the website, can see your story.
Websites that use social plugins can sometimes tell that you have engaged with the social plugin. For example, they
may know that you clicked on a Like button in a social plugin.
We receive data when you visit a site with a social plugin. We keep this data for a maximum of 90 days. After that, we
remove your name and any other personally identifying information from the data, or combine it with other people's
data in a way that it is no longer associated with you. Learn more at: https://www.facebook.com/help/social-plugins
About instant personalization
Instant personalization (sometimes also referred to as "Start now") is a way for Facebook to help partners (such as Bing
and Rotten Tomatoes) on and off Facebook to create a more personalized and social experience for logged in users than
a social plugin can offer. When you visit a site or app using instant personalization, it will know some information
about you and your friends the moment you arrive. This is because sites and apps using instant personalization can
access your User ID, your friend list, and your public information.
The first time you visit a site or app using instant personalization, you will see a notification letting you know that the
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site or app has partnered with Facebook to provide a personalized experience.
The notification will give you the ability to disable or turn off instant personalization for that site or app. If you do that,
that site or app is required to delete all of the information about you it received from Facebook as part of the instant
personalization program. In addition, we will prevent that site from accessing your information in the future, even when
your friends use that site.
If you decide that you do not want to experience instant personalization for all partner sites and apps, you can disable
instant personalization from the “Apps” settings page.
If you turn off instant personalization, these partner third party sites and apps will not be able to access your public
information, even when your friends visit those sites.
If you turn off an instant personalization site or app after you have been using it or visited it a few times (or after you
have given it specific permission to access your data), it will not automatically delete information about you it received
through Facebook. Like all other apps, the site is required by our policies to delete information about you if you ask it
to do so.
How it works
To join the instant personalization program, a potential partner must enter into an agreement with us designed to protect
your privacy. For example, this agreement requires that the partner delete information about you if you turn off instant
personalization when you first visit the site or app. It also prevents the partner from accessing any information about
you until you or your friends visit its site.
Instant personalization partners sometimes use an email hash process to see if any of their users are on Facebook and get
those users' User IDs. This process is similar to searching for someone on Facebook using an email address, except in
this case, the email addresses are hashed so no actual email addresses are exchanged. The partner is also contractually
required not to use your User ID for any purpose (other than associating it with your account) until you or your friends
visit the site.
When you visit a site or app using instant personalization, we provide the site or app with your User ID and your friend
list (as well as your age range, locale, and gender). The site or app can then connect your account with your friends'
accounts to make the site or app instantly social. The site can also access public information associated with any of the
User IDs it receives, which it can use to make them instantly personalized. For example, if the site is a music site, it can
access your music interests to suggest songs you may like, and access your friends' music interests to let you know
what they are listening to. Of course it can only access your or your friends’ music interests if they are public. If the site
or app wants any additional information, it will have to get your specific permission.
Public search engines
Your public search setting controls whether people who enter your name on a public search engine may see your public
timeline (including in sponsored results). You can find your public search setting on the “Privacy Settings and Tools”
settings page.
This setting does not apply to search engines that access your information as an application using Facebook Platform.
If you turn your public search setting off and then search for yourself on a public search engine, you may still see a
preview of your timeline. This is because some search engines cache information for a period of time. You can learn
more about how to request a search engine to remove you from cached information at:
https://www.facebook.com/help/?faq=13323
IV. Advertising and Facebook content
Advertising
Facebook offers a range of products that allow advertisers to reach people on and off Facebook. In addition to the
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information we provide in this section, you can also learn more about advertising products, how they work, our
partnerships, and the controls you have, by visiting our “Advertising on Facebook” page.
When we deliver ads, we do not share your information (information that personally identifies you, such as your name
or contact information) with advertisers unless you give us permission. We may provide advertisers with information
when we have removed your name and other personally identifying information from it, or combined it with other
information so that it no longer personally identifies you. For example, we may tell an advertiser how its ads perform or
how many people viewed or clicked on their ads or install an app after seeing an ad.
So we can show you content that you may find interesting, we may use all of the information we receive about you to
serve ads that are more relevant to you. For example, this includes:
information you provide at registration or add to your account or timeline,
things you share and do on Facebook, such as what you like, and your interactions with advertisements, partners,
or apps,
keywords from your stories, and
things we infer from your use of Facebook.
For many ads we serve, advertisers may choose their audience by location, demographics, likes, keywords, and any
other information we receive or infer about users. Here are some of the ways advertisers may target relevant ads:
demographics and interests: for example, 18 to 35 year-old women who live in the United States and like
basketball;
topics or keywords: for example, “music” or people who like a particular song or artist;
Page likes (including topics such as products, brands, religion, health status, or political views): for example, if
you like a Page about gluten-free food, you may receive ads about relevant food products; or
categories (including things like "moviegoer" or a "sci-fi fan"): for example, if a person "likes" the "Star Trek"
Page and mentions "Star Wars" when they check into a movie theater, we may infer that this person is likely to
be a sci-fi fan and advertisers of sci-fi movies could ask us to target that category.
In addition to delivering relevant ads, Facebook sometimes pairs ads with social context, meaning stories about social
actions that you or your friends have taken. For example, an ad for a sushi restaurant’s Facebook Page may be paired
with a News Feed story that one of your friends likes that Page.
We also sometimes serve these same types of ads on other sites or may serve just the social context (such as with ads
served by others), so that the ads are more relevant to you. Just like any other content you share on Facebook, only
people who you’re already sharing with on Facebook would see it when it is paired with an ad. We also allow
advertisers to reach people on Facebook using the information they already have about you (such as email addresses or
whether you have visited their websites previously). You can learn more about ads, social context, and our partnerships,
including the relevant settings and controls available to you, by visiting the Advertising on Facebook page.
If an advertiser chooses to run ads, we serve the ads to people who meet criteria the advertiser selects. So, if someone
views or otherwise interacts with the ad, the advertiser might assume that the person meets the criteria they selected (for
example, that the person is an 18-to-35-year-old woman who lives in the U.S. and likes basketball). We require
advertisers to comply with our Advertising Guidelines, including provisions relating to the use of sensitive data.
Advertisers and their partners sometimes use cookies or other similar technologies in order to serve and measure ads
and to make their ads more effective. Learn more about cookies, pixels and similar technologies.
When you post a story on Facebook and an advertiser sponsors it, nothing changes about the audience of the post. Only
the people who could originally see the post (the people you shared it with) are eligible to see it.
Facebook content
We like to tell you about some of the features and tools your friends and others use on Facebook, to help you have a
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better experience. For example, if your friend uses our friend finder tool to find more friends on Facebook, we may tell
you about it to encourage you to use it as well. This of course means your friend may similarly see suggestions based
on the things you do. But we will try to only show it to friends that could benefit from your experience.
V. Cookies, pixels and other similar technologies
Cookies are small pieces of data that are stored on your computer, mobile phone or other device. Pixels are small blocks
of code on webpages that do things like allow another server to measure viewing of a webpage and often are used in
connection with cookies.
We use technologies like cookies, pixels, and local storage (like on your browser or device, which is similar to a cookie
but holds more information) to provide and understand a range of products and services. Learn more at:
https://www.facebook.com/help/cookies
We use these technologies to do things like:
make Facebook easier or faster to use;
enable features and store information about you (including on your device or in your browser cache) and your use
of Facebook;
deliver, understand and improve advertising;
monitor and understand the use of our products and services; and
protect you, others and Facebook.
For example, we may use these tools to know you are logged in to Facebook, to help you use social plugins and share
buttons, or to know when you are interacting with our advertising or Platform partners.
We may ask advertisers or other partners to serve ads or services to computers, mobile phones or other devices, which
may use a cookie, pixel or other similar technology placed by Facebook or the third party (although we would not share
information that personally identifies you with an advertiser).
Most companies on the web use cookies (or other similar technological tools), including our advertising and Platform
partners. For example, our Platform partners, advertisers or Page administrators may use cookies or similar
technologies when you access their apps, ads, Pages or other content.
Cookies and things like local storage help make Facebook work, like allowing pages to load faster because certain
content is stored on your browser or by helping us authenticate you to deliver personalized content.
To learn more about how advertisers generally use cookies and the choices advertisers provide, visit the Network
Advertising Initiative at http://www.networkadvertising.org/managing/opt_out.asp, the Digital Advertising Alliance at
http://www.aboutads.info/, the Internet Advertising Bureau (US) at http://www.iab.net or the Internet Advertising
Bureau (EU) at http://youronlinechoices.eu/.
Refer to your browser or device's help material to learn what controls you can often use to remove or block cookies or
other similar technologies or block or remove other data stored on your computer or device (such as by using the
various settings in your browser). If you do this, it may affect your ability to use Facebook or other websites and apps.
VI. Some other things you need to know
Safe harbor
Facebook complies with the U.S.-EU and U.S.-Swiss Safe Harbor frameworks as set forth by the Department of
Commerce regarding the collection, use, and retention of data from the European Union. To view our certification, visit
the U.S. Department of Commerce's Safe Harbor website at: https://safeharbor.export.gov/list.aspx. As part of our
participation in the Safe Harbor program, we agree to resolve disputes you have with us in connection with our policies
and practices through TRUSTe. If you would like to contact TRUSTe, visit:https://feedbackform.truste.com/watchdog/request
Contact us with questions or disputes
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If you have questions or complaints regarding our Data Use Policy or practices, please contact us by mail at 1601
Willow Road, Menlo Park, CA 94025 if you reside in the U.S. or Canada, or at Facebook Ireland Ltd., Hanover Reach,
5-7 Hanover Quay, Dublin 2 Ireland if you live outside the U.S. or Canada. Anyone may also contact us through this
help page: https://www.facebook.com/help/contact_us.php?id=173545232710000
Responding to legal requests and preventing harm
We may access, preserve and share your information in response to a legal request (like a search warrant, court order or
subpoena) if we have a good faith belief that the law requires us to do so. This may include responding to legal requests
from jurisdictions outside of the United States where we have a good faith belief that the response is required by law in
that jurisdiction, affects users in that jurisdiction, and is consistent with internationally recognized standards. We may
also access, preserve and share information when we have a good faith belief it is necessary to: detect, prevent and
address fraud and other illegal activity; to protect ourselves, you and others, including as part of investigations; or to
prevent death or imminent bodily harm.
Information we receive about you, including financial transaction data related to purchases made with Facebook, may
be accessed, processed and retained for an extended period of time when it is the subject of a legal request or
obligation, governmental investigation, or investigations concerning possible violations of our terms or policies, or
otherwise to prevent harm. We also may retain information from accounts disabled for violations of our terms for at
least a year to prevent repeat abuse or other violations of our terms.
Access requests
You can access and correct most of your personal data stored by Facebook by logging into your account and viewing
your timeline and activity log. You can also download a copy of your personal data by visiting your “Settings” (General
Account Settings page), clicking on “Download a copy of your Facebook data” and then clicking on the link for your
expanded archive. Learn more at: https://www.facebook.com/help/?faq=226281544049399
Notifications and Other Messages
We may send you notifications and other messages using the contact information we have for you, like your email
address. You can control most of the notifications you receive, including ones from Pages you like and applications you
use, using controls we provide, such as a control included in the email you receive or in your “Notifications” settings.
Friend Finder
We offer tools to help you upload your friends' contact information so that you and others can find friends on
Facebook, and invite friends who do not use Facebook to join, and so we can offer you and others better experiences on
Facebook through suggestions and other customized experiences. If you do not want us to store this information, visit
this help page at: https://www.facebook.com/contact_importer/remove_uploads.php.
If you give us your password, we will delete it after you upload your friends' contact information.
Invitations
When you invite a friend to join Facebook, we send a message on your behalf using your name, and we may also
include names and pictures of other people your friend might know on Facebook. We'll also send a few reminders to
those you invite, but the invitation will also give your friend the opportunity to opt out of receiving other invitations to
join Facebook.
Memorializing accounts
We may memorialize the account of a deceased person. When we memorialize an account, we keep the timeline on
Facebook, but limit access and some features. You can report a deceased person's timeline at:
https://www.facebook.com/help/contact.php?show_form=deceased
We also may close an account if we receive a formal request that satisfies certain criteria.
Affiliates
We may share information we receive with businesses that are legally part of the same group of companies that
Facebook is part of, or that become part of that group (often these companies are called affiliates). Likewise, our
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affiliates may share information with us as well. This sharing is done in compliance with applicable laws including
where such applicable laws require consent. We and our affiliates may use shared information to help provide,
understand, and improve our services and their own services.
Service Providers
We give your information to the people and companies that help us provide, understand and improve the services we
offer. For example, we may use outside vendors to help host our website, serve photos and videos, process payments,
analyze data, conduct and publish research, measure the effectiveness of ads, or provide search results. In some cases
we provide the service jointly with another company, such as the Facebook Marketplace. In all of these cases our
partners must agree to only use your information consistent with the agreement we enter into with them, as well as this
Data Use Policy.
Security and bugs
We do our best to keep your information secure, but we need your help. For more detailed information about staying
safe on Facebook, visit the Facebook Security Page. We try to keep Facebook up, bug-free and safe, but can’t make
guarantees about any part of our services or products.
Change of Control
If the ownership of our business changes, we may transfer your information to the new owner so they can continue to
operate the service. But they will still have to honor the commitments we have made in this Data Use Policy.
Notice of Changes
If we make changes to this Data Use Policy we will notify you (for example, by publication here and on the Facebook
Site Governance Page). If the changes are material, we will provide you additional, prominent notice as appropriate
under the circumstances. You can make sure that you receive notice directly by liking the Facebook Site Governance
Page.
Opportunity to comment
Unless we make a change for legal or administrative reasons, or to correct an inaccurate statement, we will give you
seven (7) days to provide us with comments on the change. After the comment period, if we adopt any changes, we will
provide notice (for example, on the Facebook Site Governance Page or in this policy) of the effective date.
Information for users outside of the United States and Canada
Company Information: The website under www.facebook.com and the services on these pages are being offered to
users outside of the U.S. and Canada by Facebook Ireland Ltd., Hanover Reach, 5-7 Hanover Quay, Dublin 2 Ireland.
The company Facebook Ireland Ltd. has been established and registered in Ireland as a private limited company,
Company Number: 462932, and is the data controller responsible for your personal information.
Directors: Sonia Flynn (Irish), Shane Crehan (Irish).
Your California privacy rights
California law permits residents of California to request certain details about what personal information a company
shares with third parties for the third parties' direct marketing purposes. Facebook does not share your information with
third parties for the third parties’ own and independent direct marketing purposes unless we receive your permission.
Learn more about the information we receive and how it is used and other websites and applications. If you have
questions about our sharing practices or your rights under California law, please write us at 1601 Willow Road, Menlo
Park,
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Exhibit E
Search
Home
Profile
Account
Data Use Policy
Date of Last Revision: September 7, 2011
Information we receive and how it is used
Information we receive about you
Public information
Usernames and User IDs
How we use the information we receive
Deleting and deactivating your account
Sharing and finding you on Facebook
Control each time you post
Control over your profile
What your friends share about you
About Pages
Sharing with other websites and applications
About Facebook Platform
Controlling what information you share with applications
Controlling what is shared when the people you share with use applications
Logging in to another site using Facebook
About social plugins
About instant personalization
Public search engines
How advertising works
Personalized ads
Ads + social context
Sponsored stories
Featured content
Minors and Safety
Some other things you need to know
I. Information we receive and how it is used
Information we receive about you
We receive a number of different types of information about you, including:
Your information
Your information is the information that's required when you sign up for the site, as well as the information you choose to share.
Registration information: When you sign up for Facebook, you are required to provide your name, email address, birthday, and gender.
Information you choose to share: Your information also includes the information you choose to share on Facebook, such as when you post a status update, upload a photo, or
comment on a friend's post.
It also includes the information you choose to share when you take an action, such as when you add a friend, like a Page or a website, tag a place in your post, find friends using our
contact importers, or indicate you are in a relationship.
Your name, profile picture, networks, username and User ID are treated just like information you choose to make public.
Your birthday allows us to do things like show you age-appropriate content and advertisements.
Information others share about you
We receive information about you from your friends, such as when they tag you in a photo or at a location, or add you to a group.
We may also receive information about you from the games, applications, and websites you use, but only when you have given them permission. If you have given a game, application,
or website permission to post information on your Wall, you can remove it from your “Apps you use” setting.
Other information we receive about you
We also receive other types of information about you:
We receive data about you whenever you interact with Facebook, such as when you look at another person's profile, send someone a message, search for a friend or a Page, click on
an ad, or purchase Facebook Credits.
When you post things like photos or videos on Facebook, we may receive additional related data (or metadata), such as the time, date, and place you took the photo or video.
We receive data from the computer, mobile phone or other device you use to access Facebook. This may include your IP address, location, the type of browser you use, or the pages
you visit. For example, we may get your GPS location so we can tell you if any of your friends are nearby.
We receive data whenever you visit a game, application, or website that uses Facebook Platform or visit a site with a Facebook feature (such as a social plugin). This may include the
date and time you visit the site; the web address, or URL, you're on; technical information about the IP address, browser and the operating system you use; and, if you are logged in
to Facebook, your User ID.
Sometimes we get data from our advertising partners, customers and other third parties that helps us (or them) deliver ads, understand online activity, and generally make Facebook
better. For example, an advertiser may tell us how you responded to an ad on Facebook or on another site in order to measure the effectiveness of - and improve the quality of those ads.
We also put together data from the information we already have about you and your friends. For example, we may put together data about you to determine which friends we should
show you in your News Feed or suggest you tag in the photos you post. We may put together your current city with GPS and other location information we have about you to, for
example, tell you and your friends about people or events nearby, or offer deals to you that you might be interested in. We may also put together data about you to serve you ads that
might be more relevant to you.
When we get your GPS location, we put it together with other location information we have about you (like your current city). But we only keep it until it is no longer useful to
provide you services.
We only provide data to our advertising partners or customers after we have removed your name or any other personally identifying information from it, or have combined it with
other people's data in a way that it is no longer associated with you. Similarly, when we receive data about you from our advertising partners or customers, we keep the data for 180
days. After that, we combine the data with other people's data in a way that it is no longer associated with you.
Public information
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When we use the phrase "public information" (which we sometimes refer to as "Everyone information"), we mean the information you choose to make public, as well as information
that is always publicly available.
Information you choose to make public
Choosing to make your information public is exactly what it sounds like: anyone, including people off of Facebook, will be able to see it.
Choosing to make your information public also means that this information:
can be associated with you (i.e., your name, profile picture, Facebook profile, User ID, etc.) even off Facebook
can show up when someone does a search on Facebook or on a public search engine
will be accessible to the games, applications, and websites you and your friends use
will be accessible to anyone who uses our APIs such as our Graph API.
Sometimes you will not be able to select an audience when you post something (like when you write on a Page's wall or comment on a news article that uses our comments plugin).
This is because some types of posts are always public posts. As a general rule, you should assume that if you do not see a sharing icon, the information will be publicly available.
When others share information about you, they can also choose to make it public.
Information that is always publicly available
The types of information listed below are always publicly available, and are treated just like information you decided to make public.
Name: This helps your friends and family find you. If you are uncomfortable sharing your real name, you can always deactivate or delete your account.
Profile Pictures: This helps your friends and family recognize you. If you are uncomfortable making your profile picture public, you can always delete it by hovering over your photo
and clicking "Change Picture."
Network: This helps you see whom you will be sharing information with before you choose "Friends and Networks" as a custom audience. If you are uncomfortable making your
network public, you can leave the network.
Username and User ID: These allow you to give out a custom link to your profile or Page, receive email at your Facebook email address, and help make Facebook Platform possible.
Usernames and User IDs
A Username (or Facebook URL) is a custom link to your profile that you can give out to people or post on external websites. If you have selected a username, it will always appear in
the URL on your profile page. If you have not selected a username, then the URL on your profile page will contain your User ID, which is what we use to identify your Facebook account.
If someone has your Username or User ID, they can use it to access information about you through the facebook.com website. For example, if someone has your Username, they can
type facebook.com/Username into their browser and see your public information as well as anything else you've let them see. Similarly, someone with your Username or User ID can
access information about you through our APIs, such as our Graph API. Specifically, they can access your public information, along with your age range, locale (or language) and
gender.
If you do not want your information to be accessible through our APIs, you can turn off all Platform applications from your Privacy Settings. If you turn off Platform you will no longer
be able to use any games or other applications.
If you want to see information available about you through our Graph API, just type https://graph.facebook.com/[User ID or Username]?metadata=1 into your browser.
When you sign up for a Facebook email address, you will first have to select a public username. Your email address will include your public username like so:
username@facebook.com. You can control who can send you messages using your “How You Connect” settings.
How we use the information we receive
We use the information we receive about you in connection with the services and features we provide to you and other users like your friends, the advertisers that purchase ads on the
site, and the developers that build the games, applications, and websites you use. For example, we may use the information we receive about you:
as part of our efforts to keep Facebook safe and secure;
to provide you with location features and services, like telling you and your friends when something is going on nearby;
to measure or understand the effectiveness of ads you and others see;
to make suggestions to you and other users on Facebook, such as: suggesting that your friend use our contact importer because you found friends using it, suggesting that another
user add you as a friend because the user imported the same email address as you did, or suggesting that your friend tag you in a picture they have uploaded with you in it.
Granting us this permission not only allows us to provide Facebook as it exists today, but it also allows us to provide you with innovative features and services we develop in the
future that use the information we receive about you in new ways.
While you are allowing us to use the information we receive about you, you always own all of your information. Your trust is important to us, which is why we don't share information
we receive about you with others unless we have:
received your permission;
given you notice, such as by telling you about it in this policy; or
removed your name or any other personally identifying information from it.
We are able to suggest that your friend tag you in a picture by comparing your friend's pictures to information we've put together from the photos you've been tagged in. You can
control whether we suggest that another user tag you in a photo using the “How Tags work” settings.
Deleting and deactivating your account
If you want to stop using your account, you can either deactivate or delete it.
Deactivate
Deactivating your account puts your account on hold. Other users will no longer see your profile, but we do not delete any of your information. Deactivating an account is the same as
you telling us not to delete any information because you might want to reactivate your account at some point in the future. You can deactivate your account at:
https://www.facebook.com/editaccount.php
Deletion
When you delete an account, it is permanently deleted from Facebook. It typically takes about one month to delete an account, but some information may remain in backup copies and
logs for up to 90 days. You should only delete your account if you are sure you never want to reactivate it. You can delete your account at:
https://www.facebook.com/help/contact.php?show_form=delete_account
II. Sharing and finding you on Facebook
Control each time you post
Whenever you post content (like a status update, photo or check-in), you can select a specific audience, or even customize your audience. To do this, simply click on the sharing icon
and choose who can see it.
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Choose this icon if you want to make something Public. Choosing to make something public is exactly what it sounds like. It means that anyone, including people off of
Facebook, will be able to see or access it.
Choose this icon if you want to share with your Facebook Friends.
Choose this icon if you want to Customize your audience. You can also use this to hide your post from specific people.
If you do not make a selection, your information will be shared with the last audience you selected. If you want to change your selection later you can do that too on your profile.
If you tag someone, that person and their friends can see your post no matter what audience you selected. The same is true when you approve a tag someone else adds to your post.
Always think before you post. Just like anything else you post on the web or send in an email, information you share on Facebook can be copied or re-shared by anyone who can see
it.
When you comment on or "like" someone else's post, or write on their Wall, that person gets to select the audience.
You can control who can see the Facebook Pages you've "liked" by visiting your profile and clicking "Edit Profile."
Sometimes you will not see a sharing icon when you post something (like when you write on a Page's wall or comment on a news article that uses our comments plugin). This is
because some types of posts are always public posts. As a general rule, you should assume that if you do not see a sharing icon, the information will be publicly available.
Control over your profile
Whenever you add things to your profile you can select a specific audience, or even customize your audience. To do this, simply click on the sharing icon and choose who can see it.
Choose this icon if you want to make something Public. Choosing to make something public is exactly what it sounds like. It means that anyone, including people off of
Facebook, will be able to see or access it.
Choose this icon if you want to share with your Facebook Friends.
Choose this icon if you want to Customize your audience. You can also use this to hide the item on your profile from specific people.
When you select an audience for your friend list, you are only controlling who can see it on your profile. We call this a profile visibility control. This is because your friend list is always
available to the games, applications and websites you use, and your friendships may be visible elsewhere (such as on your friends' profiles or in searches). For example, if you select
"Only Me" as the audience for your friend list, but your friend sets her friend list to "Public," anyone will be able to see your connection on your friend's profile.
Similarly, if you choose to hide your gender, it only hides it on your profile. This is because we, just like the applications you and your friends use, need to use your gender to refer to
you properly on the site.
When someone tags you in a post (such as a photo, status update or check-in), you can choose whether you want that post to appear on your profile. You can either approve each
post individually or approve all posts by your friends. If you approve a post and later change your mind, you can remove it from your profile.
To make it easier for your friends to find you, we allow anyone with your contact information (such as your email address or mobile number), to find you through Facebook search,
as well as other tools we provide, such as contact importers.
If you share your contact information (such as your email address or mobile number) with your friends, they may be able to use third party applications to sync that information with
other address books, including ones on their mobile phones.
Some things (like your name and profile picture) do not have sharing icons because they are always publicly available. As a general rule, you should assume that if you do not see a
sharing icon, the information will be publicly available.
What your friends share about you
Tags
A tag is a link to your profile. For example, if you are tagged in a post (such as a photo or a status update), that post will contain a link to your profile. If someone clicks on the link,
they will see your public information and anything else you let them see.
Anyone can tag you in anything. Once you are tagged in a post, you and your friends will be able to see it. For example, your friends may be able to see the post in their News Feed or
when they search for you. It may also appear on your profile.
You can choose whether a post you've been tagged in appears on your profile. You can either approve each post individually or approve all posts by your friends. If you approve a post
and later change your mind, you can always remove it from your profile.
If you do not want someone to tag you in their posts, we encourage you to reach out to them and give them that feedback. If that does not work, you can block them. This will prevent
them from tagging you going forward.
If you are tagged in a private space (such as a message or a group) only the people who can see the private space can see the tag. Similarly, it you are tagged in a comment, only the
people who can see the comment can see the tag.
Groups
Your friends can add you to the Groups they are in. You can always leave a Group, which will prevent others from adding you to it again.
About Pages
Facebook Pages are public pages. Companies use Pages to share information about their products. Celebrities use Pages to talk about their latest projects. And communities use
pages to discuss topics of interest, everything from baseball to the opera.
Because Pages are public, information you share with a Page is public information. This means, for example, that if you post a comment on a Page, that comment can be used by the
Page owner off of Facebook, and anyone can see it.
When you "like" a Page, you create a connection to that Page. That connection is added to your profile and your friends may see it in their News Feeds. You may also receive updates
from the Page in your News Feed and your messages. You can remove the Pages you've "liked" from your profile.
Some Pages contain content that comes directly from the Page owner. Page owners can do this through online plugins, such as an iframe, and it works just like the games and other
applications you use through Facebook. Because this content comes directly from the Page owner, that Page may be able to collect information about you, just like any website.
III. Sharing with other websites and applications
About Facebook Platform
Facebook Platform (or simply Platform) refers to the way we help you share your information with the games, applications, and websites you and your friends use. Facebook Platform
also lets you bring your friends with you, so you can connect with them off of Facebook. In these two ways, Facebook Platform helps you make your experiences on the web more
personalized and social.
Remember that these games, applications and websites are created and maintained by other businesses and developers who are not part of Facebook, so you should always make sure
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to read their terms of service and privacy policies.
Controlling what information you share with applications
When you go to a game or application, or connect with a website using Facebook Platform, we give the game, application, or website (sometimes referred to as just "Applications" or
"Apps") your User ID, as well your friends' User IDs (or your friend list).
Your friend list helps the application make your experience more social because it lets you find your friends on that application. Your User ID helps the application personalize your
experience because it can connect your account on that application with your Facebook account, and it can access your public information. This includes the information you choose
to make public, as well as information that is always publicly available. If the application needs additional information, it will have to ask you for specific permission.
The “Apps you use” setting lets you control the applications you use. You can see the permissions you have given these applications, as well as the last time an application accessed
your information. You can also remove applications you no longer want, or turn off all Platform applications. When you turn all Platform applications off, your User ID is no longer
given to applications, even when your friends use those applications. But you will no longer be able to use any games, applications or websites through Facebook.
Applications also get your age range, locale, and gender when you and your friends visit them. Age range (e.g., 18-21) lets applications provide you with age-appropriate content.
Locale (e.g., en-US) lets applications know what language you speak. Gender lets applications refer to you correctly. If you do not want applications to receive this information about
you, you can turn off all Facebook applications using your Privacy Settings.
Sometimes a game console, mobile phone, or other device might ask for permission to share specific information with the games and applications you use on that device (such as
your public information). If you say okay, those applications will not be able to access any other information about you without asking specific permission from you or your friends.
Instant Personalization sites receive your User ID and friend list when you visit them.
Controlling what is shared when the people you share with use applications
Just like when you share information by email or elsewhere on the web, information you share on Facebook can be re-shared. This means that if you share something on Facebook,
anyone who can see it can share it with others, including the games, applications, and websites they use.
Your friends and the other people you share information with often want to share your information with applications to make their experiences on those application more personalized
and social. For example, one of your friends might want to use a music application that allows them to see what their friends are listening to. To get the full benefit of that application,
your friend would want to give the application her friend list – which includes your User ID – so the application knows which of her friends is also using it. Your friend might also want
to share the music you “like” on Facebook. If you have made that information public, then the application can access it just like anyone else. But if you’ve shared your likes with just
your friends, the application could ask your friend for permission to share them.
You can control most of the information other people can share with applications from the “Apps and Websites” settings page. But these controls do not let you limit access to your
public information and friend list.
If you want to completely block applications from getting your information, you will need to turn off all Platform applications. This means that you will no longer be able to use any
games, applications or websites.
If an application asks permission from someone else to access your information, the application will be allowed to use that information only in connection with the person that gave
the permission and no one else.
Logging in to another site using Facebook
Facebook Platform also lets you log into other applications and websites using your Facebook account. When you log in using Facebook, we give the site your User ID, but we do not
share your email address or password with that website.
If you already have an account on that website, the site may also be able to connect that account with your Facebook account. Sometimes it does this using what is called an "email
hash", which is similar to searching for someone on Facebook using an email address. Only the email addresses in this case are encrypted so no email addresses are actually shared
between Facebook and the website.
How it works
The website sends over an encrypted version of your email address, and we match it with a database of email addresses that we have also encrypted. If there is a match, then we tell
the website the User ID associated with the email address. This way, when you log into the website using Facebook, the website can link your Facebook account to your account on
that website.
About social plugins
Social plugins are buttons, boxes, and stories (such as the Like button) that other websites can use to present Facebook content to you and create more social and personal
experiences for you. While you view these buttons, boxes, and stories on other sites, the content comes directly from Facebook.
If you make something public using a plugin, such as posting a public comment on a newspaper's website, then that website can access your comment (along with your User ID) just
like everyone else.
Websites that use social plugins can sometimes tell that you have engaged with the social plugin. For example, they may know that you clicked on a Like button in a social plugin.
We receive data when you visit a site with a social plugin. We keep this data for 90 days. After that, we remove your name or any other personally identifying information from the
data, or combine it with other people's data in a way that it is no longer associated with you.
About instant personalization
Instant personalization is a way for Facebook to help partner sites (such as Bing and Rotten Tomatoes) create a more personalized and social experience than a social plugin can offer.
When you visit a site using instant personalization, it will know some information about you and your friends the moment you arrive. This is because instant personalization sites can
access your User ID, your friend list, and your public information.
The first time you visit an instant personalization site, you will see a notification letting you know that the site has partnered with Facebook to provide a personalized experience.
The notification will give you the ability to disable or turn off instant personalization for that site. If you do that, that site is required to delete all of the information about you it
received from Facebook. In addition, we will prevent that site from accessing your information in the future, even when your friends use that site.
If you decide that you do not want to experience instant personalization for all partner sites, you can disable instant personalization from the “Apps and Websites” settings page.
If you turn off instant personalization, partner sites will not be able to access your public information, even when your friends visit those sites.
If you turn off an instant personalization site after you have been using it or visited it a few times (or after you have given it specific permission to access your data), it will not
automatically delete your data. But the site is contractually required to delete your data if you ask it to.
How it works
To join the instant personalization program, a potential partner must enter into an agreement with us designed to protect your privacy. For example, this agreement requires that the
partner delete your data if you turn off instant personalization when you first visit the site. It also prevents the partner from accessing any information about you until you or your
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friends visit its site.
Instant personalization partners sometimes use an email hash process to see if any of their users are on Facebook and get those users' User IDs. This process is similar to searching
for someone on Facebook using an email address, except in this case the email addresses are encrypted so no actual email addresses are exchanged. The partner is also contractually
required not to use your User ID for any purpose (other than associating it with your account) until you or your friends visit the site.
When you visit an instant personalization site, we provide the site with your User ID and your friend list (as well as your age range, locale, and gender). The site can then connect your
account on that site with your friends' accounts to make the site instantly social. The site can also access public information associated with any of the User IDs it receives, which it
can use to make the site instantly personalized. For example, if the site is a music site, it can access your music interests to suggest songs you may like, and access your friends'
music interests to let you know what they are listening to. Of course it can only access you or your friends’ music interests if they are public. If the site wants any additional
information, it will have to get your specific permission.
Public search engines
Your Public Search setting controls whether people who enter your name on a public search engine may see your public profile (including in sponsored results). You can find your
Public Search setting on the “Apps and Websites” settings page. You can preview your public profile at: http://www.facebook.com/[Your Username or UserID]?p
This setting does not apply to search engines that access your information as an application using Facebook Platform.
If you turn your public search setting off and then search for yourself on a public search engine, you may still see a preview of your profile. This is because some search engines
cache information for a period of time. You can learn more about how to request a search engine to remove you from cached information at: https://www.facebook.com/help/?
faq=13323
IV. How Advertising Works
Personalized ads
We do not share any of your information with advertisers (unless, of course, you give us permission).
When an advertiser creates an ad on Facebook, they are given the opportunity to choose their audience by location, demographics, likes, keywords, and any other information we
receive or can tell about you and other users. For example, an advertiser can choose to target 18 to 35 year-old women who live in the United States and like basketball.
Try this tool yourself to see one of the ways advertisers target ads and what information they see at: https://www.facebook.com/ads/create/
If the advertiser chooses to run the ad (also known as placing the order), we serve the ad to people who meet the criteria the advertiser selected, but we do not tell the advertiser who
any of those people are. So, for example, if a person clicks on the ad, the advertiser might infer that the person is an 18-to-35-year-old woman who lives in the US and likes
basketball. But we would not tell the advertiser who that person is.
After the ad runs, we provide advertisers with reports on how their ads performed. For example we give advertisers reports telling them how many users saw or clicked on their ads.
But these reports are anonymous. We do not tell advertisers who saw or clicked on their ads.
Advertisers sometimes place cookies on your computer in order to make their ads more effective. Learn more at: http://www.networkadvertising.org/managing/opt_out.asp
Sometimes we allow advertisers to target a category of user, like a "moviegoer" or a "sci-fi fan." We do this by bundling characteristics that we believe are related to the category.
For example, if a person "likes" the "Star Trek" Page and mentions "Star Wars" when they check into a movie theater, we may conclude that this person is likely to be a sci-fi fan.
Ads + social context
Facebook Ads are sometimes paired with social actions your friends have taken. For example, an ad for a sushi restaurant may be paired with a news story that one of your friends
likes that restaurant's Facebook page.
This is the same type of news story that could show up in your News Feed, only we place it next to a paid advertisement to make that ad more relevant and interesting.
When you show up in one of these news stories, we will only pair it with ads shown to your friends. If you do not want to appear in stories paired with Facebook Ads, you can opt out
using your “Edit social ads” setting.
Learn what happens when you click "Like" on an advertisement or an advertiser's Facebook Page at: https://www.facebook.com/help/?faq=19399
We may serve ads with social context (or serve just social context) on other sites. These work just like the ads we serve on Facebook - the advertisers do not receive any of your
information.
We sometimes allow businesses or anyone else to sponsor stories like the ones that show up in your News Feed, subject to the audience set for that story. While these are
sponsored, they are different from ads because they don't contain a message from the person that sponsored them. Your friends will see these stories even if you have opted out of
the "Show my social actions in Facebook Ads" setting
Your “Show my social actions in Facebook Ads” setting does not control ads about Facebook's services and features.
Games, applications and websites can serve ads directly to you if they have your User ID.
Sponsored stories
Many of the things you do on Facebook (like "liking" a Page) are posted to your Wall and shared in News Feed. But there's a lot to read in News Feed. That's why we allow people to
"sponsor" your stories to make sure your friends see them. For example, if you RSVP to an event hosted by a local restaurant, that restaurant may want to make sure your friends see it
so they can come too. If they do sponsor a story, that story will appear in the same place ads usually do under the heading "Sponsored Stories" or something similar. Only people that
could originally see the story can see the sponsored story, and no personal information about you (or your friends) is shared with the sponsor.
Featured content
We like to tell you about some of the features your friends use on Facebook to help you have a better experience. For example, if your friend uses our friend finder tool to find more
friends on Facebook, we may tell you about it to encourage you to use it as well. This of course means your friend may similarly see suggestions based on the things you do. But we
will try to only show it to friends that could benefit from your experience.
V. Minors and safety
We take safety issues very seriously, especially with children, and we encourage parents to teach their children about safe internet practices. To learn more, visit our Safety Center.
To protect minors, we may put special safeguards in place (such as placing restrictions on the ability of adults to share and connect with them), recognizing this may provide minors a
more limited experience on Facebook.
VI. Some other things you need to know
Safe harbor
Facebook complies with the EU Safe Harbor framework as set forth by the Department of Commerce regarding the collection, use, and retention of data from the European Union. As
part of our participation in the Safe Harbor, we agree to resolve all disputes you have with us in connection with our policies and practices through TRUSTe. To view our certification,
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visit the U.S. Department of Commerce's Safe Harbor website at: https://safeharbor.export.gov/list.aspx
Responding to legal requests and preventing harm
We may share your information in response to a legal request (like a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so. This may
include responding to legal requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law in that jurisdiction, affects
users in that jurisdiction, and is consistent with internationally recognized standards. We may also share information when we have a good faith belief it is necessary to: detect,
prevent and address fraud and other illegal activity; to protect ourselves and you from violations of our Statement of Rights and Responsibilities; and to prevent death or imminent
bodily harm.
Access requests
We provide initial responses to access requests within a reasonable period of time, typically within thirty days. You can also download a copy of everything you've put into Facebook by
visiting your “Account Settings” and clicking on “Download a copy of your Facebook data”.
Notifications and Other Messages
We may send you notifications and other messages using the contact information we have for you, like your email address. You can control most of the notifications you receive,
including ones from Pages you like and applications you use, using your “Notifications” settings.
Friend finder
We offer tools to help you upload your friends' contact information so that you can find your friends on Facebook, and invite friends who do not use Facebook to join. If you do not
want us to store this information, visit this help page at: https://www.facebook.com/contact_importer/remove_uploads.php
If you give us your password, we will delete it after you upload your friends' contact information.
Invitations
When you invite a friend to join Facebook, we send a message on your behalf using your name, and up to two reminders. We may also include names and pictures of other people your
friend might know on Facebook. The invitation will also give your friend the opportunity to opt out of receiving other invitations to join Facebook.
Memorializing accounts
We may memorialize the account of a deceased person. When we memorialize an account we keep the profile on Facebook, but only let friends and family look at pictures or write on
the user's Wall in remembrance. You can report a deceased person's profile at: https://www.facebook.com/help/contact.php?show_form=deceased
We also may close an account if we receive a formal request from the person's next of kin.
Cookies
Cookies are small pieces of data that we store on your computer, mobile phone or other device to make Facebook easier to use, make our advertising better, and to protect you (and
Facebook). For example, we may use them to know you are logged in to Facebook, to help you use social plugins and share buttons, or to know when you are interacting with our
advertising or Platform partners. We may also ask advertisers to serve ads to computers, mobile phones or other devices with a cookie placed by Facebook (although we would not
share any other information with that advertiser). Most companies on the web use cookies (or similar technological methods), including our advertising and Platform partners. You can
always remove or block cookies (such as by using the settings in your browser), but it may affect your ability to use Facebook. Learn more at: https://www.facebook.com/help/?
page=176591669064814
Service Providers
We give your information to the people and companies that help us provide the services we offer. For example, we may use outside vendors to help host our website, serve photos and
videos, process payments, or provide search results. In some cases we provide the service jointly with another company, such as the Facebook Marketplace. In all of these cases our
partners must agree to only use your information consistent with the agreement we enter into with them, as well as this privacy policy.
Security
We do our best to keep your information secure, but we need your help. For more detailed information about staying safe on Facebook, visit the Facebook Security Page.
Change of Control
If the ownership of our business changes, we may transfer your information to the new owner so they can continue to operate the service. But they will still have to honor the
commitments we have made in this privacy policy.
Notice of Changes
If we make changes to this Privacy Policy we will notify you by publication here and on the Facebook Site Governance Page. If the changes are material, we will provide you additional,
prominent notice as appropriate under the circumstances. You can make sure that you receive notice directly by liking the Facebook Site Governance Page.
Opportunity to comment and vote
Unless we make a change for legal or administrative reasons, or to correct an inaccurate statement, we will give you seven (7) days to provide us with comments on the change. If we
receive more than 7000 comments concerning a particular change, we will put the change up for a vote. The vote will be binding on us if more than 30% of all active registered users
as of the date of the notice vote.
Facebook © 2011 English (US)
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Exhibit F
Data Use Policy
Date of Last Revision: June 8, 2012
Information we receive and how it is used
Information we receive about you
Public information
Usernames and User IDs
How we use the information we receive
Deleting and deactivating your account
Sharing and finding you on Facebook
Control each time you post
Control over your timeline
Finding you on Facebook
Access on phones and other devices
Activity log
What your friends share about you
About Pages
Other websites and applications
About Facebook Platform
Controlling what information you share with applications
Controlling what is shared when the people you share with use applications
Logging in to another site using Facebook
About social plugins
About instant personalization
Public search engines
How advertising and Sponsored Stories work
Personalized ads
Ads + social context
Sponsored stories
Facebook content
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Cookies, pixels and other similar technologies
Some other things you need to know
I. Information we receive and how it is used
Information we receive about you
We receive a number of different types of information about you, including:
Your information
Your information is the information that's required when you sign up for the site, as well as the information you choose
to share.
Registration information: When you sign up for Facebook, you are required to provide your name, email
address, birthday, and gender.
Information y choose to share: Your information also includes the information y choose to share on
you
you
Facebook, such as when you post a status update, upload a photo, or comment on a friend's story.
It also includes the information you choose to share when you take an action, such as when you add a friend, like a Page
or a website, add a place to your story, find friends using our contact importers, or indicate you are in a relationship.
Your name, profile pictures, cover photos, gender, networks, username and User ID are treated just like information
you choose to make public.
Your birthday allows us to do things like show you age-appropriate content and advertisements.
Information others share about you
We receive information about you from your friends and others, such as when they upload your contact information,
post a photo of you, tag you in a photo or status update, or at a location, or add you to a group.
When people use Facebook, they may store and share information about you and others that they have, such as when
they upload and manage their invites and contacts.
Other information we receive about y
you
We also receive other types of information about you:
We receive data about you whenever you interact with Facebook, such as when y look at another p
y
y
,
you
person's
timeline, send or receive a message, search for a friend or a Page, click on, view or otherwise interact with things,
,
g ,
g ,
,
use a Facebook mobile app, or purchase Facebook Credits or make other purchases through Facebook.
When you post things like photos or videos on Facebook, we may receive additional related data (or metadata),
such as the time, date, and place you took the photo or video.
We receive data from the computer, mobile phone or other device you use to access Facebook, including when
multiple users log in from the same device. This may include your IP address and other information about things
like your internet service, location, the type (including identifiers) of browser you use, or the pages you visit. For
example, we may get your GPS or other location information so we can tell you if any of your friends are nearby.
We receive data whenever you visit a game, application, or website that uses Facebook Platform or visit a site
with a Facebook feature (such as a social plugin), sometimes through cookies. This may include the date and time
you visit the site; the web address, or URL, you're on; technical information about the IP address, browser and
the operating system you use; and, if you are logged in to Facebook, your User ID.
Sometimes we get data from our advertising partners, customers and other third parties that helps us (or them)
deliver ads, understand online activity, and generally make Facebook better. For example, an advertiser may tell
us information about you (like how you responded to an ad on Facebook or on another site) in order to measure
the effectiveness of - and improve the quality of - ads.
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We also put together data from the information we already have about you and your friends. For example, we may put
together data about you to determine which friends we should show you in your News Feed or suggest you tag in the
photos you post. We may put together your current city with GPS and other location information we have about you to,
for example, tell you and your friends about people or events nearby, or offer deals to you that you might be interested
in. We may also put together data about you to serve you ads that might be more relevant to you.
When we get your GPS location, we put it together with other location information we have about you (like your
current city). But we only keep it until it is no longer useful to provide you services, like keeping your last GPS
coordinates to send you relevant notifications.
We only provide data to our advertising partners or customers after we have removed your name or any other
personally identifying information from it, or have combined it with other people's data in a way that it is no longer
associated with you.
Public information
When we use the phrase "public information" (which we sometimes refer to as "Everyone information"), we mean the
information you choose to make public, as well as information that is always publicly available.
Information you choose to make public
Choosing to make your information public is exactly what it sounds like: anyone, including people off of Facebook,
will be able to see it.
Choosing to make your information public also means that this information:
can be associated with you (i.e., your name, profile pictures, cover photos, timeline, User ID, username, etc.) even
off Facebook;
can show up when someone does a search on Facebook or on a public search engine;
will be accessible to the Facebook-integrated games, applications, and websites you and your friends use; and
will be accessible to anyone who uses our APIs such as our Graph API.
Sometimes you will not be able to select an audience when you post something (like when you write on a Page's wall or
comment on a news article that uses our comments plugin). This is because some types of stories are always public
stories. As a general rule, you should assume that if you do not see a sharing icon, the information will be publicly
available.
When others share information about you, they can also choose to make it public.
Information that is always publicly available
The types of information listed below are always publicly available, and are treated just like information you decided to
make public.
Name: This helps your friends and family find you. If you are uncomfortable sharing your real name, you can
always delete your account.
Profile Pictures and Cover Photos: These help your friends and family recognize you. If you are uncomfortable
making any of these photos public, you can always delete it. Unless you delete them, when you add a new profile
picture or cover photo, the previous photo will remain public in your profile picture or cover photo album.
Network: This helps you see whom you will be sharing information with before you choose "Friends and
Networks" as a custom audience. If you are uncomfortable making your network public, you can leave the
network.
Gender: This allows us to refer to you properly.
Username and User ID: These allow you to give out a custom link to your timeline or Page, receive email at
your Facebook email address, and help make Facebook Platform possible.
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Usernames and User IDs
A Username (or Facebook URL) is a custom link to your timeline that you can give out to people or post on external
websites. Usernames appear in the URL on your timeline. We also use your User ID to identify your Facebook account.
If someone has your Username or User ID, they can use it to access information about you through the facebook.com
website. For example, if someone has your Username, they can type facebook.com/Username into their browser and
see your public information as well as anything else you've let them see. Similarly, someone with your Username or
User ID can access information about you through our APIs, such as our Graph API. Specifically, they can access your
public information, along with your age range, language and country.
If you do not want your information to be accessible to Platform applications, you can turn off all Platform applications
from your Privacy Settings. If you turn off Platform you will no longer be able to use any games or other applications
until you turn Platform back on. For more information about the information that apps receive when you visit them, see
Other websites and applications.
If you want to see information available about you through our Graph API, just type
https://graph.facebook.com/[User ID or Username]?metadata=1 into your browser.
Your Facebook email address includes your public username like so: username@facebook.com. You can control who
can start a message thread with you using your “How You Connect” settings. If they include others on that message, the
others can reply too.
How we use the information we receive
We use the information we receive about y in connection with the services and features we p
you
provide to y and other
you
users like your friends, our partners, the advertisers that purchase ads on the site, and the developers that build the
y
,
p
,
p
,
p
games, applications, and websites you use. For example, we may use the information we receive about you:
as part of our efforts to keep Facebook products, services and integrations safe and secure;
p
p
p
,
to protect Facebook's or others' rights or property;
p
g
p p y;
to p
provide you with location features and services, like telling you and your friends when something is going on
nearby;
y;
to measure or understand the effectiveness of ads y and others see, including to deliver relevant ads to y ;
you
,
g
you;
to make suggestions to you and other users on Facebook, such as: suggesting that your friend use our contact
gg
y
,
gg
g
y
importer because y found friends using it, suggesting that another user add y as a friend because the user
p
you
g , gg
g
you
imported the same email address as you did, or suggesting that your friend tag you in a picture they have
p
uploaded with you in it; and
p
y
;
for internal operations, including troubleshooting, data analysis, testing, research and service improvement.
Granting us this permission not only allows us to provide Facebook as it exists today, but it also allows us to provide
you with innovative features and services we develop in the future that use the information we receive about you in new
ways.
While y are allowing us to use the information we receive about y , y always own all of y
you
g
you, you
y
your information. Your
trust is important to us, which is why we don't share information we receive about you with others unless we have:
received your permission;
y
p
;
g
given you notice, such as by telling y about it in this p
y
,
y
g you
policy; or
y;
removed your name or any other personally identifying information from it.
Of course, for information others share about you, they control how it is shared.
We store data for as long as it is necessary to provide products and services to you and others, including those described
above. Typically, information associated with your account will be kept until your account is deleted. For certain
categories of data, we may also tell you about specific data retention practices.
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We are able to suggest that your friend tag you in a picture by scanning and comparing your friend's pictures to
information we've put together from the other photos you've been tagged in. This allows us to make these suggestions.
You can control whether we suggest that another user tag you in a photo using the “How Tags work” settings. Learn
more at: https://www.facebook.com/help/tag-suggestions
Deleting and deactivating your account
If you want to stop using your account, you can either deactivate or delete it.
Deactivate
Deactivating your account puts your account on hold. Other users will no longer see your timeline, but we do not delete
any of your information. Deactivating an account is the same as you telling us not to delete any information because
you might want to reactivate your account at some point in the future. You can deactivate your account at:
https://www.facebook.com/editaccount.php
Your friends will still see you listed in their list of friends while your account is deactivated.
Deletion
When you delete an account, it is permanently deleted from Facebook. It typically takes about one month to delete an
account, but some information may remain in backup copies and logs for up to 90 days. You should only delete your
account if you are sure you never want to reactivate it. You can delete your account at:
https://www.facebook.com/help/contact.php?show_form=delete_account
Learn more at: https://www.facebook.com/help/?faq=356107851084108
Certain information is needed to provide you with services, so we only delete this information after you delete your
account. Some of the things you do on Facebook aren’t stored in your account, like posting to a group or sending
someone a message (where your friend may still have a message you sent, even after you delete your account). That
information remains after you delete your account.
II. Sharing and finding you on Facebook
Control each time you post
Whenever you post content (like a status update, photo or check-in), you can select a specific audience, or even
customize your audience. To do this, simply click on the sharing icon and choose who can see it.
Choose this icon if you want to make something Public. Choosing to make something public is exactly what it sounds
like. It means that anyone, including people off of Facebook, will be able to see or access it.
Choose this icon if you want to share with your Facebook Friends.
Choose this icon if you want to Customize your audience. You can also use this to hide your story from specific
people.
If you tag someone, that person and their friends can see your story no matter what audience you selected. The same is
true when you approve a tag someone else adds to your story.
Always think before you post. Just like anything else you post on the web or send in an email, information you share on
Facebook can be copied or re-shared by anyone who can see it.
Although you choose with whom you share, there may be ways for others to determine information about you. For
example, if you hide your birthday so no one can see it on your timeline, but friends post “happy birthday!” on your
timeline, people may determine your birthday.
When you comment on or "like" someone else's story, or write on their timeline, that person gets to select the audience.
For example, if a friend posts a Public story and you comment on it, your comment will be Public. Often, you can see
the audience someone selected for their story before you post a comment; however, the person who posted the story
may later change their audience.
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You can control who can see the Facebook Pages you've "liked" by visiting your timeline, clicking on the Likes box on
your timeline, and then clicking "Edit."
Sometimes you will not see a sharing icon when you post something (like when you write on a Page's wall or comment
on a news article that uses our comments plugin). This is because some types of stories are always public stories. As a
general rule, you should assume that if you do not see a sharing icon, the information will be publicly available.
Control over your timeline
Whenever you add things to your timeline you can select a specific audience, or even customize your audience. To do
this, simply click on the sharing icon and choose who can see it.
Choose this icon if you want to make something Public. Choosing to make something public is exactly what it sounds
like. It means that anyone, including people off of Facebook, will be able to see or access it.
Choose this icon if you want to share with your Facebook Friends.
Choose this icon if you want to Customize your audience. You can also use this to hide the item on your timeline from
specific people.
When you select an audience for your friend list, you are only controlling who can see the entire list of your friends on
your timeline. We call this a timeline visibility control. This is because your friend list is always available to the games,
applications and websites you use, and your friendships may be visible elsewhere (such as on your friends' timelines or
in searches). For example, if you select "Only Me" as the audience for your friend list, but your friend sets her friend
list to "Public," anyone will be able to see your connection on your friend's timeline.
Similarly, if you choose to hide your gender, it only hides it on your timeline. This is because we, just like the
applications you and your friends use, need to use your gender to refer to you properly on the site.
When someone tags you in a story (such as a photo, status update or check-in), you can choose whether you want that
story to appear on your timeline. You can either approve each story individually or approve all stories by your friends.
If you approve a story and later change your mind, you can remove it from your timeline.
People on Facebook may be able to see mutual friends, even if they cannot see your entire list of friends.
Some things (like your name, profile pictures and cover photos) do not have sharing icons because they are always
publicly available. As a general rule, you should assume that if you do not see a sharing icon, the information will be
publicly available.
Finding you on Facebook
To make it easier for your friends to find you, we allow anyone with your contact information (such as email address or
telephone number) to find you through the Facebook search bar at the top of most pages, as well as other tools we
provide, such as contact importers - even if you have not shared your contact information with them on Facebook.
You can choose who can look up your timeline using the email address or telephone number you added to your timeline
through your privacy settings. But remember, if you choose Friends, only your current Facebook friends will be able to
find you this way.
Your “How You Connect” settings do not control whether people can find you or a link to your timeline when they
search for content they have permission to see, like a photo or other story you’ve been tagged in.
Access on phones and other devices
Once you share information with your friends and others, they may be able to sync it with or access it via their mobile
phones and other devices. For example, if you share a photo on Facebook, someone viewing that photo could save it
using Facebook tools or by other methods offered by their device or browser. Similarly, if you share your contact
information with someone or invite someone to an event, they may be able to use Facebook or third party applications
or devices to sync that information. Or, if one of your friends has a Facebook application on one of their devices, your
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information (such as the things you post or photos you share) may be stored on or accessed by their device.
You should only share information with people you trust because they will be able to save it or re-share it with others,
including when they sync the information to a device.
Activity log
Your activity log is a place where you can go to view most of your information on Facebook, including things you’ve
hidden from your timeline. You can use this log to manage your content. For example, you can do things like delete
stories, change the audience of your stories or stop an application from publishing to your timeline on your behalf.
When you hide something from your timeline, you are not deleting it. This means that the story may be visible
elsewhere, like in your friends’ News Feed. If you want to delete a story you posted, choose the delete option.
What your friends share about you
Links and Tags
Anyone can add a link to a story. Links are references to something on the Internet; anything from a website to a Page
or timeline on Facebook. For example, if you are writing a story, you might include a link to a blog you are referencing
or a link to the blogger’s Facebook timeline. If someone clicks on a link to another person’s timeline, they’ll only see
the things that they are allowed to see.
A tag is a special type of link to someone’s timeline that suggests that the tagged person add your story to their timeline.
In cases where the tagged person isn’t included in the audience of the story, it will add them so they can see it. Anyone
can tag you in anything. Once you are tagged, you and your friends will be able to see it (such as in News Feed or in
search).
You can choose whether a story you've been tagged in appears on your timeline. You can either approve each story
individually or approve all stories by your friends. If you approve a story and later change your mind, you can always
remove it from your timeline.
If you do not want someone to tag you, we encourage you to reach out to them and give them that feedback. If that does
not work, you can block them. This will prevent them from tagging you going forward.
If you are tagged in a private space (such as a message or a group) only the people who can see the private space can
see the tag. Similarly, it you are tagged in a comment, only the people who can see the comment can see the tag.
Groups
Once you are in a Group, anyone in that Group can add you to a subgroup. When someone adds you to a Group, you
will be listed as “invited” until you visit the Group. You can always leave a Group, which will prevent others from
adding you to it again.
About Pages
Facebook Pages are public pages. Companies use Pages to share information about their products. Celebrities use Pages
to talk about their latest projects. And communities use pages to discuss topics of interest, everything from baseball to
the opera.
Because Pages are public, information you share with a Page is public information. This means, for example, that if you
post a comment on a Page, that comment may be used by the Page owner off Facebook, and anyone can see it.
When you "like" a Page, you create a connection to that Page. The connection is added to your timeline and your friends
may see it in their News Feeds. You may be contacted by or receive updates from the Page, such as in your News Feed
and your messages. You can remove the Pages you've "liked" through your timeline or on the Page.
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Some Pages contain content that comes directly from the Page owner. Page owners can do this through online plugins,
such as an iframe, and it works just like the games and other applications you use through Facebook. Because this
content comes directly from the Page owner, that Page may be able to collect information about you, just like any
website.
Page administrators may have access to insights data, which will tell them generally about the people that visit their
Page (as opposed to information about specific people). They may also know when you’ve made a connection to their
Page because you’ve liked their Page or posted a comment.
III. Other websites and applications
About Facebook Platform
Facebook Platform (or simply Platform) refers to the way we help you share your information with the games,
applications, and websites you and your friends use. Facebook Platform also lets you bring your friends with you, so
you can connect with them off of Facebook. In these two ways, Facebook Platform helps you make your experiences
on the web more personalized and social.
Remember that these games, applications and websites are created and maintained by other businesses and developers
who are not part of Facebook, so you should always make sure to read their terms of service and privacy policies.
Controlling what information you share with applications
When you connect with a game, application or website - such as by going to a game, logging in to a website using your
Facebook account, or adding an app to your timeline - we give the game, application, or website (sometimes referred to
as just "Applications" or "Apps") your basic info, which includes your User ID, as well your friends' User IDs (or your
friend list) and your public information.
Your friend list helps the application make your experience more social because it lets you find your friends on that
application. Your User ID helps the application personalize your experience because it can connect your account on
that application with your Facebook account, and it can access your basic info, which includes your public information
and friend list. This includes the information you choose to make public, as well as information that is always publicly
available. If the application needs additional information, such as your stories, photos or likes, it will have to ask you
for specific permission.
The “Apps you use” setting lets you control the applications you use. You can see the permissions you have given these
applications, the last time an application accessed your information, and the audience on Facebook for your timeline
stories and activity the application posts on your behalf. You can also remove applications you no longer want, or turn
off all Platform applications. When you turn all Platform applications off, your User ID is no longer given to
applications, even when your friends use those applications. But you will no longer be able to use any games,
applications or websites through Facebook.
When you first visit an app, Facebook lets the app know your language, your country, and whether you are under 18,
between 18-20, or 21 and over. Age range lets apps provide you with age-appropriate content. If you install the app, it
can access, store and update the information you’ve shared. Apps you’ve installed can update their records of your
basic info, age range, language and country. If you haven’t used an app in a while, it won’t be able to continue to
update the additional information you’ve given them permission to access. Learn more at:
https://www.facebook.com/help/how-apps-work
Sometimes a game console, mobile phone, or other device might ask for permission to share specific information with
the games and applications you use on that device. If you say okay, those applications will not be able to access any
other information about you without asking specific permission from you or your friends.
Sites and apps that use Instant Personalization receive your User ID and friend list when you visit them.
You always can remove apps you’ve installed by using your app settings at: https://www.facebook.com/settings/?
tab=applications. But remember, apps may still be able to access your information when the people you share with use
them. And, if you’ve removed an application and want them to delete the information you’ve already shared with them,
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you should contact the application and ask them to delete it. Visit the application’s page on Facebook or their own
website to learn more about the app.
Controlling what is shared when the people you share with use applications
Just like when y share information by email or elsewhere on the web, information y share on Facebook can be reyou
y
,
you
shared. This means that if y share something on Facebook, anyone who can see it can share it with others, including
you
g
the games, applications, and websites they use.
Your friends and the other people you share information with often want to share your information with applications to
make their experiences on those applications more personalized and social. For example, one of your friends might
want to use a music application that allows them to see what their friends are listening to. To get the full benefit of that
application, your friend would want to give the application her friend list – which includes your User ID – so the
application knows which of her friends is also using it. Your friend might also want to share the music you “like” on
Facebook. If you have made that information public, then the application can access it just like anyone else. But if
you’ve shared your likes with just your friends, the application could ask your friend for permission to share them.
You can control most of the information other people can share with applications they use from the “Ads, Apps and
Websites” settings page. But these controls do not let you limit access to your public information and friend list.
If you want to completely block applications from getting your information when your friends and others use them, you
will need to turn off all Platform applications. This means that you will no longer be able to use any third-party
Facebook-integrated games, applications or websites.
If an application asks permission from someone else to access your information, the application will be allowed to use
that information only in connection with the person that gave the permission and no one else.
Logging in to another site using Facebook
Facebook Platform lets you log into other applications and websites using your Facebook account. When you log in
using Facebook, we give the site your User ID (just like when you connect with any other application), but we do not
share your email address or password with that website through this process.
If you already have an account on that website, the site may also be able to connect that account with your Facebook
account. Sometimes it does this using what is called an "email hash", which is similar to searching for someone on
Facebook using an email address. Only the email addresses in this case are hashed so no email addresses are actually
shared between Facebook and the website.
How it works
The website sends over a hashed version of your email address, and we match it with a database of email addresses that
we have also hashed. If there is a match, then we tell the website the User ID associated with the email address. This
way, when you log into the website using Facebook, the website can link your Facebook account to your account on
that website.
About social plugins
Social plugins are buttons, boxes, and stories (such as the Like button) that other websites can use to present Facebook
content to you and create more social and personal experiences for you. While you view these buttons, boxes, and
stories on other sites, the content comes directly from Facebook.
Sometimes plugins act just like applications. You can spot one of these plugins because it will ask you for permission to
access your information or to publish information back to Facebook. For example, if you use a registration plugin on a
website, the plugin will ask your permission to share your basic info with the website to make it easier for you to
register for the website. Similarly, if you use an Add To Timeline plugin, the plugin will ask your permission to publish
stories about your activities on that website to Facebook.
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If you make something public using a plugin, such as posting a public comment on a newspaper's website, then that
website can access your comment (along with your User ID) just like everyone else.
If you post something using a social plugin and you do not see a sharing icon, you should assume that story is Public.
For example, if you post a comment through a Facebook comment plugin on a site, your story is Public and everyone,
including the website, can see your story.
Websites that use social plugins can sometimes tell that you have engaged with the social plugin. For example, they
may know that you clicked on a Like button in a social plugin.
We receive data when you visit a site with a social plugin. We keep this data for a maximum of 90 days. After that, we
remove your name or any other personally identifying information from the data, or combine it with other people's data
in a way that it is no longer associated with you. Learn more at: https://www.facebook.com/help/social-plugins
About instant personalization
Instant personalization is a way for Facebook to help partners (such as Bing and Rotten Tomatoes) on and off Facebook
create a more personalized and social experience for logged in users than a social plugin can offer. When you visit a
site or app using instant personalization, it will know some information about you and your friends the moment you
arrive. This is because sites and apps using instant personalization can access your User ID, your friend list, and your
public information.
The first time you visit a site or app using instant personalization, you will see a notification letting you know that the
site or app has partnered with Facebook to provide a personalized experience.
The notification will give you the ability to disable or turn off instant personalization for that site or app. If you do that,
that site or app is required to delete all of the information about you it received from Facebook as part of the instant
personalization program. In addition, we will prevent that site from accessing your information in the future, even when
your friends use that site.
If you decide that you do not want to experience instant personalization for all partner sites and apps, you can disable
instant personalization from the “Ads, Apps and Websites” settings page.
If you turn off instant personalization, partner third party sites and apps will not be able to access your public
information, even when your friends visit those sites.
If you turn off an instant personalization site or app after you have been using it or visited it a few times (or after you
have given it specific permission to access your data), it will not automatically delete your data received through
Facebook. But the site is contractually required to delete your data if you ask it to.
How it works
To join the instant personalization program, a potential partner must enter into an agreement with us designed to protect
your privacy. For example, this agreement requires that the partner delete your data if you turn off instant
personalization when you first visit the site or app. It also prevents the partner from accessing any information about
you until you or your friends visit its site.
Instant personalization partners sometimes use an email hash process to see if any of their users are on Facebook and get
those users' User IDs. This process is similar to searching for someone on Facebook using an email address, except in
this case the email addresses are hashed so no actual email addresses are exchanged. The partner is also contractually
required not to use your User ID for any purpose (other than associating it with your account) until you or your friends
visit the site.
When you visit a site or app using instant personalization, we provide the site or app with your User ID and your friend
list (as well as your age range, locale, and gender). The site or app can then connect your account with that partner with
your friends' accounts to make the site or app instantly social. The site can also access public information associated
with any of the User IDs it receives, which it can use to make them instantly personalized. For example, if the site is a
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music site, it can access your music interests to suggest songs you may like, and access your friends' music interests to
let you know what they are listening to. Of course it can only access your or your friends’ music interests if they are
public. If the site or app wants any additional information, it will have to get your specific permission.
Public search engines
Your public search setting controls whether people who enter your name on a public search engine may see your public
timeline (including in sponsored results). You can find your public search setting on the “Ads, Apps and Websites”
settings page.
This setting does not apply to search engines that access your information as an application using Facebook Platform.
If you turn your public search setting off and then search for yourself on a public search engine, you may still see a
preview of your timeline. This is because some search engines cache information for a period of time. You can learn
more about how to request a search engine to remove you from cached information at:
https://www.facebook.com/help/?faq=13323
IV. How advertising and Sponsored Stories work
Personalized ads
We do not share any of your information with advertisers (unless, of course, you give us permission). As described in
this policy, we may share your information when we have removed from it anything that personally identifies you or
combined it with other information so that it no longer personally identifies you.
We use the information we receive to deliver ads and to make them more relevant to you. This includes all of the things
you share and do on Facebook, such as the Pages you like or key words from your stories, and the things we infer from
your use of Facebook. Learn more at: https://www.facebook.com/help/?page=226611954016283
When an advertiser creates an ad, they are given the opportunity to choose their audience by location, demographics,
likes, keywords, and any other information we receive or can tell about you and other users. For example, an advertiser
can choose to target 18 to 35 year-old women who live in the United States and like basketball. An advertiser could
also choose to target certain topics or keywords, like “music” or even people who like a particular song or artist.
Try this tool yourself to see one of the ways advertisers target ads and what information they see at:
https://www.facebook.com/ads/create/
If the advertiser chooses to run the ad (also known as placing the order), we serve the ad to people who meet the criteria
the advertiser selected, but we do not tell the advertiser who any of those people are. So, for example, if a person views
or otherwise interacts with the ad, the advertiser might infer that the person is an 18-to-35-year-old woman who lives in
the U.S. and likes basketball. But we would not tell the advertiser who that person is.
After the ad runs, we provide advertisers with reports on how their ads performed. For example we give advertisers
reports telling them how many users saw or clicked on their ads. But these reports are anonymous. We do not tell
advertisers who saw or clicked on their ads.
Advertisers sometimes place cookies on your computer in order to make their ads more effective. Learn more about
cookies, pixels and other system technologies.
Sometimes we allow advertisers to target a category of user, like a "moviegoer" or a "sci-fi fan." We do this by
bundling characteristics that we believe are related to the category. For example, if a person "likes" the "Star Trek"
Page and mentions "Star Wars" when they check into a movie theater, we may conclude that this person is likely to be a
sci-fi fan. Advertisers of sci-fi movies, for example, could ask us to target “sci-fi fans” and we would target that group,
which may include you. Or if you “like” Pages that are car-related and mention a particular car brand in a post, we
might put you in the “potential car buyer” category and let a car brand target to that group, which would include you.
Ads + social context
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Facebook Ads are sometimes paired with social actions your friends have taken. For example, an ad for a sushi
restaurant may be paired with a news story that one of your friends likes that restaurant's Facebook page.
This is the same type of news story that could show up in your News Feed, only we place it next to a paid advertisement
to make that ad more relevant and interesting.
When you show up in one of these news stories, we will only pair it with ads shown to your friends. If you do not want
to appear in stories paired with Facebook Ads, you can opt out using your “Edit social ads” setting.
Learn what happens when you click "Like" on an advertisement or an advertiser's Facebook Page at:
https://www.facebook.com/help/?faq=19399
We may serve ads, including those with social context (or serve just social context), on other sites. These work just like
the ads we serve on Facebook - the advertisers do not receive any of your information. Only people that could see the
Facebook action (like on your timeline) would see it paired in this way.
Your “Show my social actions in Facebook Ads” setting only controls ads with social context. It does not control
Sponsored Stories, ads or information about Facebook's services and features, or other Facebook content.
Games, applications and websites can serve ads directly to you or help us serve ads to you or others if they have
information like your User ID or email address.
Sponsored stories
Many of the things you do on Facebook (like "liking" a Page) are posted to your timeline and shared in News Feed. But
there's a lot to read in News Feed. That's why we allow people to "sponsor" your stories to make sure your friends see
them. For example, if you RSVP to an event hosted by a local restaurant, that restaurant may want to make sure your
friends see it so they can come too.
If they do sponsor a story, that story will appear in the same place ads usually do or in your News Feed under the
heading "Sponsored" or something similar. Only people that could originally see the story can see the sponsored story,
and no personal information about you (or your friends) is shared with the sponsor.
Your “Show my social actions in Facebook Ads” setting only controls ads with social context. It does not control
Sponsored Stories, ads or information about Facebook's services and features, or other Facebook content.
Facebook content
We like to tell you about some of the features and tools your friends and others use on Facebook, to help you have a
better experience. For example, if your friend uses our friend finder tool to find more friends on Facebook, we may tell
you about it to encourage you to use it as well. This of course means your friend may similarly see suggestions based
on the things you do. But we will try to only show it to friends that could benefit from your experience.
Your “Show my social actions in Facebook Ads” setting only controls ads with social context. It does not control
Sponsored Stories, ads or information about Facebook's services and features, or other Facebook content.
V. Cookies, pixels and other similar technologies
Cookies are small pieces of data that are stored on your computer, mobile phone or other device. Pixels are small blocks
of code on webpages that do things like allow another server to measure viewing of a webpage and often are used in
connection with cookies.
We use technologies like cookies, pixels, and local storage (like on your browser or device, which is similar to a cookie
but holds more information) to provide and understand a range of products and services. Learn more at:
https://www.facebook.com/help/cookies
We use these technologies to do things like:
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make Facebook easier or faster to use;
enable features and store information about you (including on your device or in your browser cache) and your use
of Facebook;
deliver, understand and improve advertising;
monitor and understand the use of our products and services; and
to protect you, others and Facebook.
For example, we may use them to know you are logged in to Facebook, to help you use social plugins and share buttons,
or to know when you are interacting with our advertising or Platform partners.
We may ask advertisers or other partners to serve ads or services to computers, mobile phones or other devices, which
may use a cookie, pixel or other similar technology placed by Facebook or the third party (although we would not share
any other information that identifies you with an advertiser).
Most companies on the web use cookies (or other similar technological tools), including our advertising and Platform
partners. For example, our Platform partners, advertisers or Page administrators may use cookies or similar
technologies when you access their apps, ads, Pages or other content.
Cookies and things like local storage help make Facebook work, like allowing pages to load faster because certain
content is stored on your browser or by helping us authenticate you to deliver personalized content.
To learn more about how advertisers generally use cookies and the choices advertisers provide, visit the Network
Advertising Initiative at http://www.networkadvertising.org/managing/opt_out.asp, the Digital Advertising Alliance at
http://www.aboutads.info/, the Internet Advertising Bureau (US) at http://www.iab.net or the Internet Advertising
Bureau (EU) at http://youronlinechoices.eu/.
You can remove or block cookies or other similar technologies or block or remove other data stored on your computer
or device (such as by using the various settings in your browser), but it may affect your ability to use Facebook or other
websites and apps.
VI. Some other things you need to know
Safe harbor
Facebook complies with the EU Safe Harbor framework as set forth by the Department of Commerce regarding the
collection, use, and retention of data from the European Union. To view our certification, visit the U.S. Department of
Commerce's Safe Harbor website at: https://safeharbor.export.gov/list.aspx. As part of our participation in the Safe
Harbor program, we agree to resolve disputes you have with us in connection with our policies and practices through
TRUSTe. If you would like to contact TRUSTe, visit:https://feedback-form.truste.com/watchdog/request
Contact us with questions or disputes
If you have questions or complaints regarding our Data Use Policy or practices, please contact us by mail at 1601
Willow Road, Menlo Park, CA 94025 if you reside in the U.S. or Canada, or at Facebook Ireland Ltd., Hanover Reach,
5-7 Hanover Quay, Dublin 2 Ireland if you live outside the U.S. or Canada. Anyone may also contact us through this
help page: https://www.facebook.com/help/contact_us.php?id=173545232710000
Responding to legal requests and preventing harm
We may access, preserve and share your information in response to a legal request (like a search warrant, court order or
subpoena) if we have a good faith belief that the law requires us to do so. This may include responding to legal requests
from jurisdictions outside of the United States where we have a good faith belief that the response is required by law in
that jurisdiction, affects users in that jurisdiction, and is consistent with internationally recognized standards. We may
also access, preserve and share information when we have a good faith belief it is necessary to: detect, prevent and
address fraud and other illegal activity; to protect ourselves, you and others, including as part of investigations; and to
prevent death or imminent bodily harm. Information we receive about you, including financial transaction data related
to purchases made with Facebook Credits, may be accessed, processed and retained for an extended period of time
when it is the subject of a legal request or obligation, governmental investigation, or investigations concerning possible
violations of our terms or policies, or otherwise to prevent harm.
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Access requests
You can access and correct most of your personal data stored by Facebook by logging into your account and viewing
your timeline and activity log. You can also download a copy of your personal data by visiting your “Account
Settings”, clicking on “Download a copy of your Facebook data” and then clicking on the link for your expanded
archive. Learn more at: https://www.facebook.com/help/?faq=226281544049399
Notifications and Other Messages
We may send you notifications and other messages using the contact information we have for you, like your email
address. You can control most of the notifications you receive, including ones from Pages you like and applications you
use, using your “Notifications” settings.
Friend finder
We offer tools to help you upload your friends' contact information so that you and others can find friends on
Facebook, and invite friends who do not use Facebook to join. If you do not want us to store this information, visit this
help page at: https://www.facebook.com/contact_importer/remove_uploads.php
If you give us your password, we will delete it after you upload your friends' contact information.
Invitations
When you invite a friend to join Facebook, we send a message on your behalf using your name, and up to two
reminders. We may also include names and pictures of other people your friend might know on Facebook. The
invitation will also give your friend the opportunity to opt out of receiving other invitations to join Facebook.
Memorializing accounts
We may memorialize the account of a deceased person. When we memorialize an account, we keep the timeline on
Facebook, but limit access and some features. You can report a deceased person's timeline at:
https://www.facebook.com/help/contact.php?show_form=deceased
We also may close an account if we receive a formal request that satisfies certain criteria.
Service Providers
We give your information to the people and companies that help us provide, understand and improve the services we
offer. For example, we may use outside vendors to help host our website, serve photos and videos, process payments,
analyze data, measure the effectiveness of ads, or provide search results. In some cases we provide the service jointly
with another company, such as the Facebook Marketplace. In all of these cases our partners must agree to only use your
information consistent with the agreement we enter into with them, as well as this Data Use Policy.
Security and bugs
We do our best to keep your information secure, but we need your help. For more detailed information about staying
safe on Facebook, visit the Facebook Security Page. We try to keep Facebook up, bug-free and safe, but can’t make
guarantees about any part of our services or products.
Change of Control
If the ownership of our business changes, we may transfer your information to the new owner so they can continue to
operate the service. But they will still have to honor the commitments we have made in this Data Use Policy.
Notice of Changes
If we make changes to this Data Use Policy we will notify you by publication here and on the Facebook Site
Governance Page. If the changes are material, we will provide you additional, prominent notice as appropriate under
the circumstances. You can make sure that you receive notice directly by liking the Facebook Site Governance Page.
Opportunity to comment and vote
Unless we make a change for legal or administrative reasons, or to correct an inaccurate statement, we will give you
seven (7) days to provide us with comments on the change. If we receive more than 7000 comments concerning a
particular change, we will put the change up for a vote. The vote will be binding on us if more than 30% of all active
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registered users as of the date of the notice vote.
Information for users outside of the United States and Canada
Company Information: The website under www.facebook.com and the services on these pages are being offered to
users outside of the U.S. and Canada by Facebook Ireland Ltd., Hanover Reach, 5-7 Hanover Quay, Dublin 2 Ireland.
The company Facebook Ireland Ltd. has been established and registered in Ireland as a private limited company,
Company Number: 462932, and is the data controller responsible for your personal information.
Directors: Cipora Herman (American), Theodore Ullyot (American).
Your California privacy rights
California law permits residents of California to request certain details about what personal information a company
shares with third parties for the third parties' direct marketing purposes. Facebook does not share your information with
third parties for the third parties’ own and independent direct marketing purposes unless we receive your permission.
Learn more about the information we receive and how it is used and other websites and applications. If you have
questions about our sharing practices or your rights under California law, please write us at 1601 Willow Road, Menlo
Park, CA 94025 or contact us through this help page: https://www.facebook.com/help/contact_us.php?
id=173545232710000
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Exhibit G
S. REP. 99-541
Page 1
S. Rep. No. 541, 99TH Cong., 2ND Sess. 1986, 1986 U.S.C.C.A.N. 3555, 1986 WL 31929, S. REP. 99-541
(Leg.Hist.)
P.L. 99–508, **3555 ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986
DATES OF CONSIDERATION AND PASSAGE
House June 23, October 2, 1986
Senate October 1, 1986
House Report (Judiciary Committee) No. 99–647,
June 19, 1986 [To accompany H.R. 4952]
Senate Report (Judiciary Committee) No. 99–541,
Oct. 17, 1986 [To accompany S. 2575]
Cong. Record Vol. 132 (1986)
The House bill was passed in lieu of the Senate bill after amending its language to contain much of the text of the
Senate bill. The Senate Report is set out below.
SENATE REPORT NO. 99–541
October 17, 1986
*1 The Committee on the Judiciary, to which was referred the bill (S. 2575) having considered the same, reports
favorably thereon with an amendment in the nature of a substitute and recommends that the bill, as amended, do pass.
I. PURPOSE
The Electronic Communications Privacy Act amends title III of the Omnibus Crime Control and Safe Streets Act of
1968—the Federal wiretap law—to protect against the unauthorized interception of electronic communications. The
bill amends the 1968 law to update and clarify Federal privacy protections and standards in light of dramatic changes
in new computer and telecommunications technologies.
When the Framers of the Constitution acted to guard against the arbitrary use of Government power to maintain
surveillance over citizens, there were limited methods of intrusion into the ‘houses, *2 papers, and effects' protected
by the fourth amendment. During the intervening 200 years, development of new methods of communication and
devices for surveillance has expanded dramatically the opportunity for such intrusions.
The telephone is the most obvious example. Its widespread use made it technologically possible to intercept the
communications of **3556 citizens without entering homes or other private places. When the issue of Government
wiretapping first came before the Supreme Court in Olmstead v. United States, 277 U.S. 438 (1928), the Court held
that wiretapping did not violate the fourth amendment, since there was no searching, no seizure of anything tangible,
and no physical trespass.
Today, the Olmstead case is often remembered more for Justice Brandeis' prescient dissent than for its holding.
Justice Brandeis predicted:
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Ways may some day be developed by which the Government, without removing papers from secret drawers, can
reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the
home . . . Can it be that the Constitution affords no protection against such invasions of individual security?
Forty years later, the Supreme Court accepted Justice Brandeis' logic in Katz v. United States, 389 U.S. 347 (1967),
holding that the fourth amendment applies to Government interception of a telephone conversation. At the same time,
the Court extended fourth amendment protection to electronic eavesdropping on oral conversations in Berger v. New
York, 388 U.S. 41 (1967).
Congress responded in a comprehensive fashion by authorizing Government interception, under carefully subscribed circumstances in title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510 et seq.
Title III is the primary law protecting the security and privacy of business and personal communications in the United
States today. Its regimen for protecting the privacy of voice communications is expressly limited to the unauthorized
aural interception of wire or oral communications. It only applies where the contents of a communication can be
overheard and understood by the human ear. See United States v. New York Telephone Company, 434 U.S. 159, 1671
(1977). Furthermore, existing title III applies only to interceptions of communications sent via common carriers. 18
U.S.C. 2510(10).
As Senator Leahy said when he introducted S. 2575 with Senator Mathias, the existing law is ‘hopelessly out of
date.’ Congressional Record, June 19, 1986. It has not kept pace with the development of communications and
computer technology. Nor has it kept pace with changes in the structure of the telecommunications industry.
Today we have large-scale electronic mail operations, computer-to-computer data transmissions, cellular and
cordless telephones, paging devices, and video teleconferencing.2 A phone call can be carried by wire, by microwave
or fiber optics. It can be transmitted in the form of digitized voice, data or video. Since the divestiture of *3 AT&T and
deregulation, many different companies, not just common carriers, offer a wide variety of telephone and other
communications services. It does not make sense that a phone call transmitted via common carrier is protected by the
current federal **3557 wiretap statute, while the same phone call transmitted via a private telephone network such as
those used by many major U.S. corporations today, would not be covered by the statute.
These tremendous advances in telecommunications and computer technologies have carried with them comparable
technological advances in surveillance devices and techniques. Electronic hardware making it possible for overzealous law enforcement agencies, industrial spies and private parties to intercept the personal or proprietary communications of others are readily available in the American market today.
Title I of the Electronic Communications Privacy Act addresses the interception of wire, oral and electronic
communications. It amends existing chapter 119 of title 18 to bring it in line with technological developments and
changes in the structure of the telecommunications industry.
The Committee also recognizes that computers are used extensively today for the storage and processing of information. With the advent of computerized recordkeeping systems, Americans have lost the ability to lock away a
great deal of personal and business information. For example, physicians and hospitals maintain medical files in
offsite data banks, businesses of all sizes transmit their records to remote computers to obtain sophisticated data
processing services. These services as well as the providers of electronic mail create electronic copies of private
correspondence for later reference. This information is processed for the benefit of the user but often it is maintained
for approximately 3 months to ensure system integrity. For the person or business whose records are involved, the
privacy or proprietary interest in that information should not change. Nevertheless, because it is subject to control by a
third party computer operator, the information may be subject to no constitutional privacy protection. See United
States v. Miller, 425 U.S. 4353 (1976) (customer has no standing to contest disclosure of his bank records). Thus, the
information may be open to possible wrongful use and public disclosure by law enforcement authorities as well as
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unauthorized private parties. The provider of these services can do little under current law to resist unauthorized
access to communications.
Title II of S. 2575 addresses access to stored wire and electronic communications and transactional records. It is
modeled after the Right to Financial Privacy Act, 12 U.S.C. 3401 et seq. to protect privacy interests in personal and
proprietary information, while protecting the Government's legitimate law enforcement needs.
Title III of the bill addresses pen registers and trap and trace devices.
II. HISTORY
In 1984, Senator Leahy asked the Attorney General whether he believed interceptions of electronic mail and
computer-to-computer communications were covered by the Federal wiretap law. The **3558 *4 Criminal Division
of the Justice Department responded that Federal law protects electronic communications against unauthorized acquisition only where a reasonable expectation of privacy exists. Underscoring the need for this legislation, the Department concluded:
In this rapidly developing area of communications which range from cellular non-wire telephone connections to
microwave-fed computer terminals, distinctions such as [whether there does or does not exist a reasonable expectation of privacy] are not always clear or obvious.
Senator Leahy's letter and the Justice Department's response mark the beginning of this legislation. The Subcommittee on Patents, Copyrights and Trademarks chaired by Senator Mathias, held hearings in the 98th Congress. See,
Hearings before the Subcommittee on Patents, Copyrights and Trademarks of the Committee on the Judiciary on
Privacy and Electronic Communications, September 12, 1984, S. Hrg. 98–1266.
The product of that hearing and subsequent discussions with the Department of Justice and private groups interested
in promoting communications privacy, while protecting legitimate law enforcement needs and promoting technological innovation, was S. 1667, the Electronic Communications Privacy Act of 1985. Senators Leahy and Mathias
introduced that bill on September 19, 1985. On the same day, Congressmen Kastenmeier and Moorhead, the Chairman
and Ranking Minority Member of the House Judiciary Subcommittee on Courts, Civil Liberties and the Administration of Justice introduced an identical bill, H.R. 3378.
In October 1985, the Office of Technology Assessment issued a report entitled ‘Electronic Surveillance and Civil
Liberties.’ That study concluded that current legal protections for electronic mail are ‘weak, ambiguous, or
non-existent,’ and that ‘electronic mail remains legally as well as technically vulnerable to unauthorized surveillance.’
‘Federal Government Information Technology: Electronic Surveillance and Civil Liberties' (Washington, D.C.: U.S.
Congress, Office of Technology Assessment, OTA-CIT–293, October 1985).
The Subcommittee on Patents, Copyrights and Trademarks held a hearing on S. 1667 on November 13, 1985.
Testimony was received from interested individuals and groups, including representatives of the telephone industry,
the electronic mail industry, and the software and service industries. Representatives of the Department of Justice
presented their views, and the subcommittee also received testimony from the American Civil Liberties Union and
elicited technical information from the Institute of Electrical and Electronics Engineers.
As a result of those hearings, S. 1667 was superseded by a new bill to reflect the concerns raised by some of these
groups, particularly the Department of Justice and radio hobbyists. On June 19, 1986, Senator Leahy, joined by Senator Mathias, introduced S. 2575.
On August 12, 1986, the Judiciary Committee Subcommittee on Patents, Copyrights and Trademarks favorably
reported S. 2575, as amended, to the full Committee by voice vote.
**3559 *5 On September 19, 1986, Senators Leahy and Mathias and Chairman Thurmond offered an amendment in
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the nature of a substitute to S. 2575. The Committee voted unanimously to favorably report the Electronic Communications Privacy Act of 1986, as amended, to the full Senate.
III. STATEMENT
A letter sent by first class mail is afforded a high level of protection against unauthorized opening by a combination
of constitutional provisions, case law, and U.S. Postal Service statutes and regulations. Voice communications
transmitted via common carrier are protected by title III of the Omnibus Crime Control and Safe Streets Act of 1968.
But there are no comparable Federal statutory standards to protect the privacy and security of communications
transmitted by new noncommon carrier communications services or new forms of telecommunications and computer
technology. The is so, even though American citizens and American businesses are using these new forms of technology in lieu of, or side-by-side with, first class mail and common carrier telephone services.
This gap results in legal uncertainty. It may unnecessarily discourage potential customers from using innovative
communications systems. It probably encourages unauthorized users to obtain access to communications to which
they are not a party. It may discourage American businesses from developing new innovative forms of telecommunications and computer technology. The lack of clear standards may expose law enforcement officers to liability and
may endanger the admissibility of evidence.
Most importantly, the law must advance with the technology to ensure the continued vitality of the fourth
amendment. Privacy cannot be left to depend solely on physical protection, or it will gradually erode as technology
advances. Congress must act to protect the privacy of our citizens. If we do not, we will promote the gradual erosion of
this precious right.
The Committee believes that S. 2575, te Electronic Communications Privacy Act of 1986, represents a fair balance
between the privacy expectations of American citizens and the legitimate needs of law enforcement agencies.
The Justice Department strongly supports S. 2575 because it strengthens the current wiretap law from a law enforcement perspective. Specifically, it expands the the list of felonies for which a voice wiretap order may be issued
and the list of Justice Department officials who may apply for a court order to place a wiretap. The bill also includes
provisions making it easier for law enforcement officials to deal with a target who repeatedly changes telephones to
thwart interception of his communications and creates criminal penalties for those who notify a target of a wiretap in
order to obstruct it. These provisions will be particularly helpful to the Justice Department in its fight against drug
trafficking.
The organizations and individual corporations named below also support the principles embodied in the legislation.
Organizations: Electronic Mail Assoc.; ADAPSO; Telocator Network of America; Cellular Telecommunications
Industry Assoc.; **3560 *6 ACLU; National Association of Manufacturers (NAM); U.S. Chamber of Commerce;
National Association of Broadcasters (NAB); National Cable Television Assoc. (NCTA); National Association of
Business & Educational Radio (NABER); CBEMA; U.S. Telephone Assoc.; Videotext Industry Assoc.; Information
Industry Assoc.; Electronic Funds Transfer Assoc.; Radio and Television News Directors Assoc.; Association of
American Railroads; Institute of Electrical and Electronics Engineers (IEEE); Direct Marketing Association; Utilities
Telecommunications Council; and Associated Credit Bureaus, Inc.
Corporations: AT&T; General Electric; IBM; GTE; EDS; ITT; MCI; CBS; ABC; NBC; Tandy Corp. (Radio
Shack); Trintex; Equifax; TRW; Source Telecomputing Corporation; Chase Manhattan Bank; Motorola; Ameritech;
Bell Atlantic; Bell South; Southwestern Bell; NYNEX; Pacific Telesis; US West; and Associated Credit Services, Inc.
A few points in the development of the Electronic Communications Privacy Act of 1986 should be noted here. After
Senators Leahy and Mathias introduced the bill in June 1986, S. 2575 was referred to the Subcommittee on Patents,
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Copyrights and Trademarks. During the subcommittee markup session held on August 12, 1986, the bill was further
amended to clarify certain provisions.
At the request of the FCC, in response to the recent Captain Midnight incident, in which an individual in Florida
interfered with the transmission of an HBO program being relayed by satellite, the subcommittee included in the bill
language to address deliberate or malicious interference with satellite transmissions. It also added to title III of the bill
related to installation and use of pen registers, procedural requirements for orders to use ‘trap and trace’ devices.
In order to underscore that the inadvertent receiption of a protected communication is not a crime, the subcommittee
changed the state of mind requirement under title III of the Omnibus Crime Control and Safe Streets Act of 1968 from
‘willful’ to ‘intentional.’ This change in the law addresses the concerns of radio scanners that in the course of scanning
radio frequencies in order to receive public communications, one could inadvertently tune through a protected
communication like a cellular telephone call. This provision makes clear that the inadvertent interception of a protected communication is not unlawful under this Act.
During subcommittee consideration, Senators Laxalt, Grassley, DeConcini and Simpson expressed concerns about
the bill's penalty structure for the interception of certain satellite transmissions by home viewers. Senators Leahy and
Mathias agreed that those concerns would be addressed during Committee consideration of the Electronic Communications Privacy Act.
The Leahy-Mathias-Thurmond substitute for S. 2575, which was offered when the full Committee considered this
legislation, incorporated an amendment offered by Senator Grassley. Senators Laxalt, McConnell, Simpson and
Denton cosponsored Senator Grassley's amendment.
Senator Grassley's amendment modifies the criminal penalties and civil liability provisions of chapter 119 of title 18
of the United States Code so that there is a two-track, tiered penalty structure for home viewing of private satellite
transmissions when the conduct**3561 *7 is not for a tortious or illegal purpose or for purposes of direct or indirect
commercial advantage or private commercial gain.
In a public action, under the Grassley amendment, a first offender would be subject to a suit by the Government for
injunctive relief. If injunctive relief is granted, one who violates the injunction would be subject to the full panoply of
enforcement mechanisms within the court's existing authority, including criminal and civil contempt. Second and
subsequent offenses carry a mandatory $50 civil fine for each violation. The term ‘violation’ in this context refers to
each viewing of a private video communication.
In a private civil action, a person harmed by the private viewing of such a satellite communication may sue for
damages. If the defendant has not previously been enjoined in a government action as described above, and has not
previously been found liable in a civil suit, the plaintiff may recover the greater of his actual damages or statutory
damages of $50 to $500. A second offender (one who has been found liable in a prior private civil action or one who
has been enjoined in a government suit) is subject to liability for the greater of actual damages or statutory damages of
$100 to $1,000. Third and subsequent offenders are subject to the bill's full civil penalties.
The Grassley amendment also takes outside the penalty provisions of the Electronic Communications Privacy Act,
the interception of a satellite transmission via audio subcarrier if the transmission is intended for redistribution to
facilities open to the public, provided that the conduct is not for the purpose of direct or indirect commercial advantage
or private financial gain. Audio subcarriers intended for redistribution to the public include those for redistribution by
broadcast stations and cable and like facilities. They also include those for redistributions to buildings open to the
public like hospitals and office buildings that pump in music which has been transmitted via subcarrier. As specified in
the substitute, this audio subcarrier exclusion does not apply to data transmissions or telephone calls.
The substitute amendment also incorporated Senator Simon's amendment. Senator Simon had expressed concern
that the Electronic Communications Privacy Act's penalties were too severe for the first offender, who without an
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unlawful or financial purpose, intercepts a cellular telephone call or certain radio communications related to
news-gathering.
Senator Simon's amendment reduces the penalty for such an interception of an unencrypted, unscrambled cellular
telephone call to a $500 criminal fine. Unencrypted, unscrambled radio communications transmitted on frequencies
allocated under subpart D of part 74 of the FCC rules are treated like private satellite video communications are under
Senator Grassley's amendment.
Scanning enthusiasts have argued to the Committee that the mere monitoring of cellular telephone calls should not
be illegal. That argument ignores three important realities. First, Congress, in passing the 1968 wiretap law already
made willful monitoring of such telephone calls illegal when at least part of the conversation is carried by wire. Second, unlike many signals which are more commonly scanned, the design of the cellular telephone system makes the
intentional monitoring of specific calls more difficult because**3562 *8 they are handed off among cells. The
Committee is not convinced that these arguments overcome the need for protection of privacy interests.
It has been suggested that the Federal Communications Commission consider labeling requirements on cellular
telephones, radio scanning equipment and private satellite video communications. The Commission might consider
the feasibility of requiring that cellular telephones be labeled to indicate that cellular calls are radio-based communications, and as such, portions of the communication may be intercepted by available scanning equipment and of
requiring that scanning equipment be labeled to indicate that the intentional interception of protected communications
could be a Federal criminal violation. Finally, the Commission might consider the feasibility of requiring those who
transmit private satellite video communications to periodically transmit a crawl across the bottom of the screen indicating that such communications are protected.
IV. GLOSSARY
For reference, some of the new telecommunications and computer technologies referred to in the Electronic
Communications Privacy Act of 1986 and this report are described briefly below. Treatment of these and other
technologies under current law is discussed in the House Report to its companion measure, H.R. 4952. See House
Report 99–647.
ELECTRONIC MAIL
Electronic mail is a form of communication by which private correspondence is transmitted over public and private
telephone lines. In its most common form, messages are typed into a computer terminal, and then transmitted over
telephone lines to a recipient computer operated by an electronic mail company. If the intended addressee subscribes
to the service, the message is stored by the company's computer ‘mail box’ until the subscriber calls the company to
retrieve its mail, which is then routed over the telephone system to the recipient's computer. If the addressee is not a
subscriber to the service, the electronic mail company can put the message onto paper and then deposit it in the normal
postal system.
Electronic mail systems may be available for public use or may be proprietary, such as systems operated by private
companies for internal correspondence.
COMPUTER-TO-COMPUTER COMMUNICATIONS
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Common computer-to-computer communications include the transmission of financial records or funds transfers
among financial institutions, medical records between hospitals and/or physicians' offices, and the transmission of
proprietary data among the various offices of a company.
ELECTRONIC BULLETIN BOARDS
Electronic ‘bulletin boards' are communications networks created by computer users for the transfer of information
among computers.**3563 *9 These may take the form of proprietary systems or they may be noncommercial systems
operating among computer users who share special interests. These noncommercial systems may involve fees covering operating costs and may require special ‘passwords' which restrict entry to the system. These bulletin boards
may be public or semi-public in nature, depending on the degree of privacy sought by users, operators or organizers of
such systems.
MICROWAVE
Microwave consists of extremely high frequency radio waves transmitted point-to-point on line-of-sight paths
between antennas located on towers or building tops (in terrestrial microwave systems) and between satellites and
earth station ‘dish’ antennas (in satellite-based systems).
CELLULAR TELEPHONES
In 1981 the Federal Communications Commission approved the use of cellular telephone services. This technology
uses both radio transmission and wire to make ‘portable’ telephone service available in a car, a briefcase, or in rural
areas not reached by telephone wire.
In a cellular radiotelephone system, large service areas are divided into honeycomb-shaped segments or
‘cells'—each of which is equipped with a low-power transmitter or base station which can receive and radiate messages within its parameters. When a caller dials a number on a cellular telephone, a transceiver sends signals over the
air on a radio frequency to a cell site. From there the signal travels over phone lines or a microwave to a computerized
mobile telephone switching office (‘MTSO’) or station. The MTSO automatically and inaudibly switches the conversation from one base station and one frequency to another as the portable telephone, typically in a motor vehicle,
moves from cell to cell.
Cellular technology, because it is more complex, is more difficult to intercept than traditional mobile telephones; it
is, however, more accessible than microwave transmissions. Cellular telephone calls can be intercepted by either
sophisticated scanners designed for that purpose, or by regular radio scanners modified to intercept cellular calls.
CORDLESS TELEPHONES
A cordless telephone consists of a handset and a base unit wired to a landline and a household/business electrical
current. A communication is transmitted from the handset to the base unit by AM or FM radio signals. From the base
unit the communication is transmitted over wire, the same as a regular telephone call. The radio portions of these
telephone calls can be intercepted with relative ease using standard AM radios.
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ELECTRONIC PAGERS
Electronic pagers are radio activated devises through which a user is notified of another's attempt to contact the
carrier of the portable paging unit. These are in wide use among persons who are away from their homes or offices—or, more precisely, away from **3564 *10 telephones or two-way radios—yet still need to be reachable by others.
Pagers take on one of three basic forms: ‘tone only,’ ‘display’ and ‘tone and voice pagers.’ The ‘tone only’ device
emits a ‘beep’ or other signal to inform the user that a message is waiting, and where that message can be retrieved by
the user's making a phone call to a predetermined number (usually an office or answering service). ‘Display’ pagers
are equipped with screens that can display visual messages, usually the telephone number of the person seeking to
reach the person being paged. The party seeking to make contact with the user is instructed to provide a message,
usually by pushing the buttons of a touch-tone telephone; this message is stored by the paging company's computer
until it can be transmitted to the user's pager, where the message can then be read directly by the user, obviating the
need for the user to make a telephone call to retrieve the message. The most sophisticated type of pager is the ‘tone and
voice’ model. It can receive a spoken message that the paging company's computer has taken from the party seeking to
contact the unit's user. After the beep tone is made, the device ‘repeats' the recorded message. This requires that a radio
signal containing voice communications be sent from the paging company's base to the mobile unit.
PEN REGISTERS/TRAP AND TRACE DEVICES
Pen registers are devices that record the telephone numbers to which calls have been placed from a particular telephone. These capture no part of an actual telephone conversation, but merely the electronic switching signals that
connect two telephones. The same holds true for trap and trace devices, which record the numbers of telephones from
which calls have been placed to a particular telephone.
ELECTRONIC TRACKING DEVICES (TRANSPONDERS)
These are one-way radio communication devices that emit a signal on a specific radio frequency. This signal can be
received by special tracking equipment, and allows the user to trace the geographical location of the transponder. Such
‘homing’ devices are used by law enforcement personnel to keep track of the physical whereabouts of the sending unit,
which might be placed in an automobile, on a person, or in some other item.
REMOVE COMPUTER SERVICES
In the age of rapid computerization, a basic choice has faced the users of computer technology. That is, whether to
process data inhouse on the user's own computer or on someone else's equipment. Over the years, remote computer
service companies have developed to provide sophisticated and convenient computing services to subscribers and
customers from remote facilities. Today businesses of all sizes—hospitals, banks and many others—use remote
computing services for computer processing. This processing can be done with the customer or subscriber using the
facilities of the remote computing service in essentially a time-sharing arrangement, or it can be accomplished by the
service provider on the basis of information **3565 *11 supplied by the subscriber or customer. Data is most often
transmitted between these services and their customers by means of electronic communications.
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V. SECTION-BY-SECTION ANALYSIS
Section 1 provides that the short title of the bill is the ‘Electronic Communications Privacy Act of 1986.’
TITLE I—INTERCEPTION OF COMMUNICATIONS AND RELATED MATTERS
Under current law, the interception of wire and oral communications are governed by chapter 119 of title 18 (18
U.S.C. 2510 et seq.). Title I of the Electronic Communications Privacy Act expands chapter 119 to take into account
modern advances in electronic telecommunications and computer technology.
Section 101—Federal penalties for the interception of communications
Definitions for terms used in chapter 119 and new chapter 121 of title 18 are set out in section 101 of the bill. This
section also describes conduct which is not unlawful under this Act and modifies the penalties set out in existing
section 2511 of title 18. It provides that the remedies in chapter 119 are the exclusive statutory remedies for violations
of this chapter. Technical amendments to chapter 119 are also included in Section 101 of the bill.
Subsection 101(a)—Definitions
Subsection 101(a) of the Electronic Communications Privacy Act sets out the definitions and amendments to definitions used in chapter 119 and new chapter 121 of title 18. Paragraph 101(a)(1) amends the definition of the term
‘wire communication’ in subsection 2510(1) of title 18.
Subparagraph (A) amends that definition to include aural transfers. As defined in proposed subsection 2510(18) of
title 18, ‘aural transfers' are those which include the human voice at any point between and including the points of
origin and reception.
Subparagraph (B) specifies that the use of wire, cable or other similar connections for the transmission of communications includes the use of such connections in a switching station. This subparagraph makes clear that cellular
communications—whether they are between two cellular telephones or between a cellular telephone and a ‘land line’
telephone—are included in the definition of ‘wire communications' and are covered by the statute. As noted below, the
bill distinguishes between cordless and cellular telephones.
Recognizing that since deregulation and the divestiture of AT&T, many different companies, not just common
carriers, offer and use telephone and other communications services, subparagraph (C) deletes from the definition of
‘wire communication’ the requirement that communications must be transmitted via common carrier to be covered by
the federal wiretap statute.
Subparagraph (D) specifies that wire, cable or similar connections furnished or operated by any person engaged in
providing or operating such facilities for the transmission of ‘communications **3566 *12 affecting interstate or
foreign commerce,’ are within the definition of a ‘wire communication.’ This language recognizes that private networks and intra-company communications systems are common today and brings them within the protection of the
statute. However, that language is not meant to suggest that the Electronic Communications Privacy Act applies to
interceptions made outside the territorial United States. Like the Omnibus Crime Control and Safe Streets Act of 1968
which it revises, the Electronic Communications Privacy Act regulates only those interceptions conducted within the
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territorial United States.
The Senate Judiciary Committee's Subcommittee on Patents, Copyrights and Trademarks amended subparagraph
(D) to specify that wire communications in storage like voice mail, remain wire communications, and are protected
accordingly.
The combined effect of subparagraphs (A) through (D) is to clarify that the term ‘wire communication’ means the
transfer of a communication which includes the human voice at some point. The transfer must be made in whole or in
part through the use of communication transmission facilities by the aid of wire, cable, or other like connection, including fiber optics. The facilities may be furnished or operated by any person engaged in providing or operating such
facilities for the transmission of interstate or foreign communications or he may provide or operate those facilities for
the transmission of communications affecting interstate or foreign commerce.
Thus, a wire communication encompasses the whole of a voice telephone transmission even if part of the transmission is carried by fiber optic cable or by radio—as in the case of cellular telephones and long distance satellite or
micowave facilities. The conversion of a voice signal to digital form for purposes of transmission does not render the
communication non-wire. The term ‘wire communication’ includes existing telephone service, and digitized communications to the extent that they contain the human voice at the point of origin, receiption, or some point in between.
A private telephone system established by a company whose activities affect interstate commerce, would also be
covered.
It should be noted that an improperly mechanical reading of the phrase ‘in whole or in part * * * by the aid of wire *
* *’ could sweep in virtually all voice communications made with the aid of any electronic equipment, inasmuch as
virtually all such equipment includes in its assembly some length of wire or the equivalent. The quoted is intended to
refer to wire that carries the communication to a significant extent from the point of origin to the point of reception,
even in the same building. It does not refer to wire that is found inside the terminal equipment at either end of the
communication.
Subparagraph (D) specifies that the term ‘wire communication’ does not include the radio portion of a cordless
telephone communication transmitted between the cordless handset and the base unit. Because communications made
on some cordless telephones can be intercepted easily with readily available technologies, such as an AM radio, it
would be inappropriate to make the interception of such a communication a criminal offense. The wire portion of a
cordless communication remains fully covered, however.
**3567 *13 Section 101(a)(2) of the Electronic Communications Privacy Act amends the definition of ‘oral
communication’ in current section 2510(2) of title 18 to exclude electronic communications. There have been cases
involving radio communications in which the court having determined that the radio communication was not a wire
communication then analyzes it in privacy terms to determine if it is an oral communication. The bill rejects that
analysis by excluding electronic communications from the definition of oral communications.
An oral communication is an utterance by a person under circumstances exhibiting an expectation that the communication is not subject to interception, under circumstances justifying such an expectation. In essence, an oral
communication is one carried by sound waves, not by an electronic medium.
Section 101(a)(3) of the Electronic Communications Privacy Act amends the definition of the term ‘intercept’ in
current section 2510(4) of title 18 to cover electronic communications. The definition of ‘intercept’ under current law
is retained with respect to wire and oral communications except that the term ‘or other’ is inserted after ‘aural.’ This
amendment clarifies that it is illegal to intercept the non-voice portion of a wire communication. For example, it is
illegal to intercept the data or digitized portion of a voice communication.
Subsection 101(a)(4) of the Electronic Communications Privacy Act amends existing section 2510(5) of title 18 to
clarify that telephone equipment provided by the user and connected to the facilities of a service provider is not an
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‘electronic, mechanical or other device,’ provided that it is used in the ordinary course of the user's business.
The Committee notes that proposed section 2510's definition of an ‘electronic, mechanical or other device’ includes
any combination of parts designed or intended for use in converting those parts into such a device or apparatus and
from which such a device or apparatus may be readily assembled. The Committee also notes that section 2512, as
amended by the Electronic Communications Privacy Act, prohibits the manufacture, distribution, possession, and
advertising only of devices primarily useful for surreptitious interception.
Subsection 101(a)(5) of the Electronic Communications Privacy Act amends current section 2510(8) of title 18 to
exclude from the definition of the term ‘contents,’ the identity of the parties or the existence of the communication. It
thus distinguishes between the substance, purport or meaning of the communication and the existence of the communication or transactional records about it.
The Supreme Court has clearly indicated that the use of pen registers does not violate either chapter 119 of title 18 or
the fourth amendment. Subsection 101(a)(5) of this legislation makes that policy clear. It should be read in conjunction
with Title III of the Electronic Communications Privacy Act which adds new chapter 206 on pen registers and trap and
trace devices to title 18. Subsection 101(a)(5) of the bill does not affect the installation or use of pen registers under the
Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. 1801 et. seq. Similarly, the omission of a conforming
amendment to the definition of ‘contents' in section 705 of **3568 *14 title 47 is not intended to affect the current law
under that section with respect to pen registers. The use of pen registers has been found not to violate section 705. See
Hodge v. Mountains Tel. & Telegraph Co., 555 F.2d 254 (9th Cir. 1977).
Subsection 101(a)(6) of the Electronic Communications Privacy Act adds to section 2510 of title 18 definitions for
the terms ‘electronic communication,’ ‘electronic communications system,’ ‘electronic communication service,’
‘readily accessible to the general public,’ ‘electronic storage,’ and ‘aural transfer.’
An ‘electronic communication’ is defined in proposed subsection 2510(12) of title 18 as ‘any transfer of signs,
signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic or a photooptical system that affects foreign or interstate commerce.’ The following
are explicitly excluded from the definition: (A) the radio portion of a cordless telephone communication transmitted
between the cordless phone handset and the base unit; (B) any wire or oral communication; (C) any communication
made through a tone-only paging device; (D) any communication from a tracking device.
As a general rule, a communication is an electronic communication protected by the federal wiretap law if it is not
carried by sound waves and cannot fairly be characterized as containing the human voice. Communications consisting
solely of data, for example, and all communications transmitted only by radio are electronic communications. This
term also includes electronic mail, digitized transmissions, and video teleconferences. Although radio communications are within the scope of the Act, the provisions of the Electronic Communications Privacy Act directed specifically to radio do not affect the applicability of section 705 of the Communications Act of 1934, as amended, to actions
by members of the public.
Under proposed subsection 2510(13), the term ‘user’ is defined as any person or entity who (A) uses an electronic
communication service and (B) is duly authorized by the service provider to do so.
An ‘electronic communication system’ is defined in proposed subsection 2510(14). Such a system encompasses any
wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of electronic communications as well as any computer facilities or related electronic equipment for the electronic storage of such communications.
An ‘electronic communication service’ is defined in proposed subsection 2510(15) of title 18 as a service which
provides its users the ability to send or to receive wire or electronic communications. Such services can be provided
through the same facilities. Existing telephone companies and electronic mail companies are providers of electronic
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communication services. Other services like remote computing services may also provide electronic communication
services.
Radio communications ‘readily accessible to the general public’ are defined in proposed subsection 2510(16). Radio communications are considered readily accessible to the general public unless they fit into one of five specified
categories.
**3569 *15 As described below, subsection 101(b) of the Electronic Communications Privacy Act provides an
exception to the general prohibitions on interception for electronic communications which are configured to be readily
accessible to the general public. Thus, the radio communications specified in proposed subsection 2510(16) are afforded privacy protections under this legislation unless another exception applies.
As specified in paragraph (A) of proposed subsection 2510(16), scrambled or encrypted radio communications are
not readily accessible to the general public. The terms are used in their technical sense. To ‘encrypt’ or to ‘scramble’
means to convert the signal into unintelligible form by means intended to protect the contents of a communication
from unintended recipients. Methods which merely change the form of a plaintext message, e.g., a device which
converts an analog signal to a digital stream, does not provide ‘encryption’ within the meaning of this bill. Nor does
the use of a word code, no matter how sophisticated, amount to scrambling or encryption. Examples of scrambling
techniques which are currently available include the data encryption standard (DES).
As specified in paragraph (B) radio communications transmitted through modulation techniques whose essential
parameters have been withheld from the public in order to preserve the privacy of the communication are not readily
accessible to the general public. This paragraph (B) refers to spread spectrum radio communications. Spread spectrum
technology usually involves the transmission of a signal on different frequencies where the receiving station must
possess the necessary algorythm in order to reassemble the signal.
As specified in paragraph (C) of proposed subsection 2510(16) of title 18, radio communications carried on a
subcarrier or other signal subsidiary to a radio transmission are protected by the Electronic Communications Privacy
Act. This category includes, for example, data and background music services carried on FM subcarriers. It also
includes data carried on the Vertical Blanking Interval (VBI) of a television signal.
Radio communications transmitted over a system provided by a common carrier are not readily accessible to the
general public with one exception. That exception is for tone-only paging systems. As a result of that exception, the
interception of tone-only paging system transmissions will not be prohibited by this law. However, the unauthorized
interception of a display paging system, which involves the transmission of alphanumeric characters over the radio,
carried by a common carrier, is illegal.
As specified in proposed paragraph (E), radio communications transmitted on frequencies allocated under parts 25
and 94 and subparts D, E, an F of part 74 of the FCC rules are protected by the Electronic Communications Privacy
Act. These communications include satellite communications, auxiliary broadcast services and private microwave
services, each of which routinely carries private business or personal communications. Two-way voice radio communications made on frequencies shared with services outside part 74 are expressly excluded from this category of
protected communications.
**3570 *16 The liability incurred under chapter 119 for the interception of the communications described in proposed paragraph 2510(16(E) may be limited. Section 101(b) of the Electronic Communications Privacy Act sets out
exceptions from liability under this Act with respect to electronic communications and section 101(d) establishes the
penalty structure for violations of this Act.
The term ‘electronic storage’ is defined in proposed subsection 2510(7) of title 18. Electronic storage means (A) the
temporary, intermediate storage of a wire or electronic communication incidental to its transmission as well as (B) the
storage of such communication by an electronic communications service for backup protection. The term covers
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storage within the random access memory of a computer as well as storage in any other form including storage of
magnetic tapes, disks or other media. Thus, for example, section 2701's prohibitions against unauthorized access to
wire or electronic communications while they are in electronic storage would prohibit unauthorized access to such a
communication while it is stored on magnetic tape or disk. The section 2701 prohibitions similarly would apply to
information held on magnetic tape or disk pursuant to an agreement to provide remote computing services.
The last new definition in subsection 101(a)(6) of the Electronic Communications Privacy Act is the definition of an
‘aural transfer’ in proposed subsection 2510(18). An aural transfer means any transfer containing the human voice at
any point between and including the points of origin and reception. Under this definition, voice messages transferred
over a paging system are protected. It is intended that computer-generated or otherwise artificial voices are not included in this definition and thus will not be part of a ‘wire communication.’ They would, however, be part of an
‘electronic communication.’
It is important to recognize that a transaction may consist, in part, of both electronic communications and wire or
oral communications as those terms are defined in section 2510 of title 18, as amended by the Electronic Communications Privacy Act. Accordingly, different aspects of the same communication might be characterized differently. For
example, the transmission of data over the telephone is an electronic communication. If the parties use the line to speak
to one another between data transmissions, those communications would be wire communications. At the same time,
for a person overhearing one end of the telephone conversation by listening in on the oral utterances of one of the
parties, those utterances are oral communications.
Although this bill does not address questions of the application of title III standards to video surveillance and only
deals with the interception of closed circuit television communications to a limited extent, closed circuit television
communications do provide another example of the importance of, and the interrelationship between, the definitions
contained in this legislation. If a person or entity transmits a closed circuit television picture of a meeting using wires,
microwaves or another method of transmission, the transmission itself would be an electronic communication. Interception of the picture at any point without either consent or a court order would be a violation of the statute. By
contrast, if law enforcement officials were to install their own cameras and create their own **3571 *17 closed circuit
television picture of a meeting, the capturing of the video images would not be an interception under the statute because there would be no interception of the contents of an electronic communication. Intercepting the audio portion of
the meeting would be an interception of an oral communication, and the statute would apply to that portion.
Section 101(b)—Exceptions with respect to electronic communications
Subsection 2511(1) of title 18 of the United States Code sets out prohibitions against the interception, disclosure and
use of wire or oral communications. Subsection 2511(2) specifies conduct which is not unlawful under chapter 119 of
title 18.
Subsection 101(b) of the Electronic Communications Privacy Act amends Subsection 2511(2). Paragraph 101(b),
consistent with other provisions of this legislation, deletes references to common carriers. It thus clarifies that any
service provider who discloses the existence of an interception or surveillance or the device used to accomplish the
interception or surveillance would be liable for civil damages under Section 2520 of title 18.
Paragraph 101(b)(2) of the Electronic Communications Privacy Act amends section 2511(2)(d) of title 18 by
striking out ‘or for the purpose of committing any other injurious act’. Under current Federal law it is permissible for
one party to consent to the interception of a conversation unless that interception is for illegal, tortious or other injurious purposes such as blackmail. In numerous court cases the term ‘other injurious purposes' has been misconstrued.
Most troubling of these cases have been attempts by parties to chill the exercise of first amendment rights through the
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use of civil remedies under this chapter. For example, in Boddie v. American Broadcasting Co., 731 F.2d 333 (6th Cir.
1984), the plaintiff, whose conversations were recorded by a journalist, sued. Despite the consent of the reporter who
was a party to the conversation, the plaintiff claimed that the recording of the conversation was illegal because it was
done for an improper purpose, to embarrass her. While the appeals court decision in Boddie merely sent the case back
for further factual development, it is clear from the facts of the case that the term ‘improper purpose’ is overly broad
and vague. The court's opinion suggests that if the network intended to cause ‘insult and injury’ to plaintiff Boddie, she
might be entitled to recover. This interpretation of the statute places a stumbling block in the path of even the most
scrupulous journalist. Many news stories have been brought to light by recording a conversation with the consent of
only one of the parties involved—often the journalist himself. Many news stories are embarrassing to someone. The
present wording of section 2511(2)(d) not only provides such a person with a right to bring suit, but it also makes the
actions of the journalist a potential criminal offense under section 2511, even if the interception was made in the
ordinary course of responsible news-gathering activities and not for the purpose of committing a criminal act or a tort.
Such a threat is inconsistent with the guarantees of the first amendment. Inasmuch as chapter 119 as amended by the
Electronic Communications Privacy Act continues to prohibit interceptions made for the purpose of committing either
a **3572 *18 crime or a tort (including defamation), the public will be afforded ample portection against improper or
unscrupulous interception.
Subsection 101(b)(3) of the Electronic Communications Privacy Act amends section 2511(2)(f) of title 18 to clarify
that nothing in chapter 119 as amended or in proposed chapter 121 affects existing legal authority for U.S. Government foreign intelligence activities involving foreign electronic communications systems. The provision neither enhances nor diminishes existing authority for such activities; it simply preserves the status quo. It does not provide
authority for the conduct of any intelligence activity.
Further the Senate expects that the practice of providing to the House and Senate Intelligence Committees proposed
changes in relevant executive branch procedures and regulations governing the conduct of intelligence activities,
including those involving electronic surveillance, physical searches, and the minimization of information collected
concerning U.S. persons will be continued. As in the past, the Senate expects that any relevant changes in these procedures and regulations will be provided to the Senate and House Intelligence Committees prior to their taking effect.
Finally, since Congress last addressed the issue of privacy communications in a comprehensive fashion, the technologies of communication and interception have changed dramatically, and are expected to continue to do so. These
factors have raised serious issues about the protection of the privacy interests of U.S. citizens, which are of great
concern to the Senate and to the American people. For this reason, the Senate wishes to emphasize the obligation of the
heads of intelligence agencies to continue to keep the Select Committee on Intelligence fully and currently informed of
all intelligence activities pursuant to title V of the National Security Act of 1947.
Subsection 101(b)(4) of the Electronic Communications Privacy Act amends section 2511(2)(g) of title 18 of the
United States Code. It sets out new exemptions from criminal liability applicable to the technologies which this legislation adds to the privacy protections of the federal wiretap law. Proposed section 2511(2)(g) provides that it shall
not be unlawful under chapters 119 or 121 of title 18 for any person to engage in the conduct described in its five
subparagraphs.
Under proposed section 2311(2)(g)(i), it is permissible to intercept electronic communications made through an
electronic communication system configured so that the communication is ‘readily accessible to the general public.’
That term is defined with respect to radio communications in proposed section 210(16) of title 18. The term ‘configure’ is intended to establish an objective standard of design configuration for determining whether a system receives privacy protection.
Under this provision, it would not be unlawful to intercept subcarrier and UBI communications that are transmitted
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for the use of the general public. Such ‘public’ communications would include the stereo subcarrier used in FM
broadcasting or data carried on the VBI to provide closed-captioning of TV programming for the hearing-impaired.
Under proposed section 2511(g)(ii) it is permissible to intercept any radio communication which is transmitted (I)
by any station **3573 *19 for the use of the general public, or that relate to ships, aircraft, vehicles or persons in
distress; (II) by any government, law enforcement, civil defense, private land mobile or public safety communications
system (including police and fire), that is readily accessible to the general public; (III) by a station operating on an
authorized frequency within the bands allocated to amateur, citizens band or general mobile radio services; or (IV) by
any marine or aeronautical communications system.
Traditionally, these radio communications have been free from prohibitions on mere interception. Amateur radio
communications, including those utilizing telephone interconnect or amateur radio computer linked message systems
are certainly not those to which this legislation is aimed. All amateur radio communications conducted on radio frequencies allocated to the Amateur Radio Services are exempt from this bill's prohibitions against the interception of
electronic communications.
Radio services readily accessible to the general public are exempt from this act's prohibitions against interception by
the generic exception contained in proposed paragraph 2511(2)(g)(i).
Proposed section 1511(2)(g)(iii) addresses conduct which is either prohibited or permitted by the Communications
Act of 1934, as amended. Under clause (I) of subparagraph (iii) it is not unlawful under chapter 119 or 121 of title 18
for any person to engage in conduct prohibited by section 633 of the Communications Act of 1934 relating to cable
piracy. If an individual violates the criminal prohibitions in section 633 of the Communications Act, he cannot also be
charged under chapters 119 or 121 of title 18.
Clause (II) exempts from the prohibitions on interception contained in this Act conduct which is excepted from
section 705(a) of the Communications Act by virtue of section 705(b) of that Act. Thus, if conduct is permitted under
section 705(b) of the Communications Act, engaging in that conduct would not be a crime under chapters 119 or 121
of title 18, as amended by the Electronic Communications Privacy Act. Determination of whether conduct is permitted
under section 705(b) must, of course, be the result of an examination of the statute, relevant legislative history, existing court interpretations and constructions given the statute by appropriate federal regulatory entities.
Proposed section 2511(2)(g)(iv) of title 18 exempts from the criminal prohibition contained in chapters 119 and 121
of that title, the interception of any wire or electronic communication the transmission of which is causing harmful
interference to any lawfully operating station, to the extent necessary to identify the source of such interference.
Finally, proposed section 2511(2)(g)(v) exempts interceptions of radio communication by other users of the same
frequency when such communication is made through a system that utilizes frequencies monitored by individuals
engaged in the provision or use of such a system. This exemption clarifies that it is not unlawful for users of the same
frequency, who must listen to be sure a channel is clear before using it, to do so. The exception applies to users of
common and non-common carrier systems, but does not apply if the communication is scrambled or encrypted.
**3574 *20 Subsection 101(b)(4) of the Electronic Communications Privacy Act amends subsection 2511(2) of title
18 to add a new paragraph (h) to that subsection. Proposed subparagraph (i) of paragraph (h) clarifies that the use of
pen registers and trap and trace devices are not regulated by chapter 119 of title 18. The use of those devices will be
regulated by new chapter 206 of title 18 as amended by the Electronic Communications Privacy Act.
Subparagraph (ii) of paragraph (h) states that no violation of this chapter occurs if a provider of wire or electronic
communication service records the fact that a communication was initiated or completed in order to protect such
provider, another provider furnishing service toward the completion of the wire or electronic communication or a user
of that service, from fraudulent, unlawful or abusive use of such a service. This provision permits the electronic and
wire communication providers to protect themselves and their customers.
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Subsection 101(c)—Technical and conforming amendments
Subsection (c) sets out technical and conforming amendments to chapter 119 of title 18. Paragraph (c)(1) adds
‘electronic communication’ in appropriate places throughout the chapter. Paragraph (c)(2) amends the heading of the
chapter. Paragraph (c)(3) amends the table of chapters to add electronic communications to the table. Paragraphs (4),
(5), (6), (7), and (8) of subsection 101(c) of the Electronic Communications Privacy Act make appropriate technical
amendments to delete the term ‘common carrier’ and substitute in its place ‘provider of wire or electronic communication.’
Section 2511(2)(a)(i), as amended, specifies that it is not unlawful for the employees of providers of wire or electronic communication services to intercept, disclose or use customer communications in the normal course of employment while engaged in any activity which is a necessary incident to the rendition of the service or to the protection
of the rights or property of the provider, except that a provider of wire communication service to the public shall not
utilize service observing or random monitoring except for mechanical or service quality checks.
In applying the second clause only to wire communications, this provision reflects an important technical distinction
between electronic communications and traditional voice telephone service. The provider of electronic communications services may have to monitor a stream of transmissions in order to properly route, terminate, and otherwise
manage the individual messages they contain. These monitoring functions, which may be necessary to the provision of
an electronic communication service, do not involve humans listening in on voice conversations. Accordingly, they
are not prohibited. In contrast, the traditional limits on service ‘observing’ and random ‘monitoring’ do refer to human
aural interceptions and are retained with respect to voice or ‘wire’ communications.
Subsection 101(d)—Penalties modification
Subsection 101(d) of the Electronic Communications Privacy Act modifies the general penalty structure for violations of this chapter. It sets out proposed subsections (4) and (5) of section 2511 of title 18. Subsection (4) sets out the
criminal penalties for violations **3575 *21 of subsection 2511(1). Subsection (5) outlines the injunctive relief
available to the federal government in the case of specified conduct related to private satellite video communications
that are not scrambled or encrypted and to communications transmitted on frequencies allocated under subpart D of
part 74 of the FCC rules that are not scrambled or encrypted.
The general rule as set out in proposed paragraph 2511(4)(a) is that a violation is punishable as a 5-year felony.
Unless one of the exceptions in proposed subsection 2511(4)(b) or subsection 2511(5) applies, a person violating
section 2511(1) will be liable for a fine under this chapter, imprisonment up to 5 years, or both. The fines under the
chapter are set by section 3623 of title 18. That section provides for a different maximum fine level for felonies or
misdemeanors resulting in death. Individual defendants can be fined up to $250,000 and organizations can be fined up
to $500,000.
As stated in proposed paragraph 2511(14)(b), the first exception to the general rule that violations are 5-year felonies, applies to unscrambled, unencrypted radio communications provided that the conduct is a first offense and is not
for a tortious or illegal purpose or purposes of direct or indirect commercial advantage or private financial gain. If the
radio communication is scrambled or encrypted, if the person violating the statute has been found guilty of a prior
offense, or if his conduct was for one of the enumerated bad purposes, the conduct remains punishable as a 5-year
felony.
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As stated in subparagraph (ii) of proposed paragraph 2511(4)(b), for first offenders whose conduct was not for one
of the enumerated bad purposes, if the communication is not scrambled or encrypted and it is the radio portion of a
cellular telephone, public land mobile radio service or paging service communication, then the violator will be subject
to a $500 criminal fine. Otherwise, as stated in clause (i) of proposed paragraph 2511(4)(b), the conduct is punishable
as a one-year misdemeanor with fines of up to $100,000, 18 U.S.C. 3623, unless the conduct is that described in
subsection (5).
It should be noted that the exceptions set out in proposed paragraph 2511(4)(b) apply only to radio communications.
The interception of ‘wire’ communications remain punishable as five-year felonies. The interception of the wire
portion of a cellular telephone call, for example, is a five-year felony.
Proposed paragraph 2511(4)(c) decriminalizes certain conduct unless it is for the purposes of direct or indirect
commercial advantage or private financial gain. The terms ‘direct or indirect commercial advantage or private financial gain’ are intended to have the same meaning as those terms have when they are used in 47 U.S.C. 705(b).
This exception from the criminal provisions of the Electronic Communications Privacy Act applies to the interception of an unencrypted, unscrambled satellite transmission that is transmitted (i) to a broadcasting station for
purposes of retransmission to the general public; or (ii) as an audio subcarrier intended for redistribution to facilities
open to the public, but not including data transmissions or telephone calls. The conduct described in subparagraphs (i)
and (ii) is not an offense under this chapter and is not subject to civil liability under this chapter.
**3576 *22 Subparagraph (i) descriminalizes the interception of ‘network feeds' under title 18. Such conduct will
be governed exclusively by section 705 of the Communications Act (47 U.S.C. 705).
Subparagraph (ii) descriminalizes the interception of material transmitted as an audio subcarrier provided that the
information is intended for redistribution to facilities open to the public. Audio subcarriers intended for redistribution
to facilities open to the public include those for redistribution by broadcast stations, cable TV systems and like facilities. They also include those for redistribution to buildings open to the public, and thus, it would not be unlawful to
intercept music transmitted via an audio subcarrier if it is intended for redistribution to buildings like hospitals and
office buildings which pump music into their lobbies and other public areas.
Subparagraph (ii) does not apply to data transmissions or telephone calls. The interception of those transmissions,
like the interception of transmissions made for the enumerated bad purposes, would be punishable as 5-year felonies.
The private viewing of satellite cable programming, network feeds and certain audio subcarriers will continue to be
governed exclusively by section 705 of the Communications Act of 1934, as amended, and not by chapter 119 of title
18 of the United States Code.
A new government action for injunctive relief is set out in proposed subsection 2511(5) of title 18. This new subsection was created to underscore that this public injunctive action is distinct from the criminal penalties set out in
subsection (4).
Its exceptions apply only if the communication is not scrambled or encrypted and the conduct is not for one of the
enumerated bad purposes. Clause (A) refers to the private or home viewing of a private satellite video communication.
With regard to the home viewing of private satellite video communications, for purposes of this provision and proposed section 2520, the Committee views as scrambling that type of multiplexing4 in which the audio and video
portions of a communication are split, requiring special equipment to reassemble the whole communication (generally
a videoteleconference) before it can be received in intelligible form. Clause (B) refers to radio communications
transmitted on frequencies allocated under subpart D of part 74 of the FCC rules.
Under proposed clause 2511(5)(a)(ii)(A), if the violation is a first offense and the person has not previously been
found liable in a private civil action under section 2520 of title 18, the government may sue for appropriate injunctive
relief. Under proposed clause (B) if the violation is a second or subsequent offense or the person has previously been
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found liable under section 2520, he shall be subject to a mandatory $500 civil fine.
Proposed paragraph (b) of subsection 2511(5) clarifies that the court may use any means within its existing authority, including civil or criminal contempt, to enforce an injunction issued to an individual under this subsection.
Paragraph (b) also requires that the court impose a civil fine of $500 or more for each violation of such **3577 *23 an
injunction. The term ‘violation’ in this context refers to each viewing of a private video communication and to each
reception of a part 74 D radio communication.
Subsection 101(e)—Exclusivity of remedies with respect to electronic communications
Subsection 101(e) of the Electronic Communications Privacy Act amends subsection 2518(10) of title 18 to add a
paragraph (c) which provides that with respect to the interception of electronic communications, the remedies and
sanctions described in this chapter are the only judicial remedies and sanctions available for nonconstitutional violations of this chapter involving such communications. In the event that there is a violation of law of a constitutional
magnitude, the court involved in a subsequent trial will apply the existing Constitutional law with respect to the exclusionary rule.
The purpose of this provision is to underscore that, as a result of discussions with the Justice Department, the
Electronic Communications Privacy Act does not apply the statutory exclusionary rule contained in title III of the
Omnibus Crime Control and Safe Streets Act of 1968 to the interception of electronic communications.
Similarly, the Electronic Communications Privacy Act does not amend the Communications Act of 1934. Conduct
in violation of that statute, will continue to be governed by that statute.
Subsection 101(f)—State of mind
Subsection 101(f) of the Electronic Communications Privacy Act changes the state of mind required to violate
section 2511 or section 2512 of title 18 of the United States Code from ‘willful’ to ‘intentional.’ The purpose of this
amendment is to underscore that inadvertent interceptions are not crimes under the Electronic Communications Privacy Act.
As used in the Electronic Communications Privacy Act, the term ‘intentional’ is narrower than the dictionary definition of ‘intentional.’ ‘Intentional’ means more than that one voluntarily engaged in conduct or caused a result. Such
conduct or the causing of the result must have been the person's conscious objective. An ‘intentional’ state of mind
means that one's state of mind is intentional as to one's conduct or the result of one's conduct if such conduct or result
is one's conscious objective. The intentional state of mind is applicable only to conduct and results. Since one has no
control over the existence of circumstances, one cannot ‘intend’ them.
As indicated in the Judiciary Committee's report to accompany the Criminal Code Reform Act of 1981 (S. 1630):
The highest degree of culpability is present if a person engages in conduct (or causes a result) intentionally, that is,
‘if it is his conscious objective or desire to engage in the conduct (or cause the result).’ A common means to describe
conduct as intentional, or to say that one causes the result intentionally, is to state that it is done or accomplished ‘on
purpose.’
**3578 *24 The term ‘intentional’ is not meant to connote the existence of a motive. Liability for intentionally
engaging in prohibited conduct is not dependent on an assessment of the merit of the motive that led the person to
disregard the law. (Emphasis in original; citation omitted.) Report of the Committee on the Judiciary, United States
Senate, to accompany S. 1630, Criminal Code Reform Act of 1981, Report 97–307 at 67.
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The Committee went on to point out that people who steal because they like to or to get more money or to feed the
poor, like Robin Hood, all commit the same crime. Id. The word ‘intentional’ describes the mental attitude associated
with an act that is being done on purpose. It does not suggest that the act was committed for a particular evil purpose.
At this point, it is important to note that the crime of interception under the Electronic Communications Privacy Act
consists of the intentional acquisition of the contents of a wire, electronic or oral, communication through the use of
any electronic, mechanical, or other device. Some groups which engage in testing were concerned that the picking up
of the contents of a communication incident to those tests might be considered a crime under title III as amended by
the Electronic Communications Privacy Act.
They then sought exemptions from liability under proposed paragraph 2511(2)(g). The Subcommittee on Patents,
Copyrights and Trademarks rejected this approach solely because it feared application of the principle of statutory
construction of ‘expressio unius, est exclusio alterius' would encourage courts to treat similar tests as unlawful.
For example, since the early 1960s, motor vehicle manufacturers and others have been committed to voluntary actions to make their products ‘good citizens' in the electromagnetic environment. That commitment has fostered the
development of test procedures and programs resulting in systems to help ensure that the electromagnetic energy
radiated from equipment such as motor vehicles, agricultural and construction machinery, engines for transportation,
marine, industrial and consumer applications, electronic equipment and components of the foregoing do not interfere
with signals carrying video, voice or data transmissions. Personal, business and entertainment radio, television, digital
data communications, and radio navigation services are examples of services benefited by such test procedures and
programs.
The equipment for measuring the test procedures and technical specifications by which electromagnetic radiation
from motor vehicles typically includes an antenna for picking up electromagnetic energy radiated from the vehicle,
and a radio receiver for scanning the frequency range from 20 or 30 to 1,000 MHz to determine the field strength of all
emissions in that range which the antenna picks up.
The antenna picks up not only the electromagnetic emissions from the equipment being tested, but also any other
signals present at the antenna location. Indeed, to be able to quantify the strength of the emissions to be measured,
even though additional signals are present at the frequency on which the measurement is being made, **3579 *25 the
procedures and programs specify initial measurement of these additional signals. Of course, any radio service operating in the scanned frequency range will be picked up and its field strength measured during both the baseline and the
vehicle tests. Although occasionally a speaker will be used to verify that a radio service is indeed producing a high
field strength reading, in virtually all of the testing there is not attempt to ascertain the substance, purport or meaning
of the signal.
Similar equipment and procedures are used to measure electromagnetic radiation emitted by computing devices. In
addition, the operation of electronic equipment, and devices equipped with electronic controls, may be susceptible to
disruption by electromagnetic radiation impinging on such equipment or devices. For example, the operation of
electronic engine controls, electronic speed controls, and anti-lock brake systems employing electronic controls, and
even the operation of heart pacemakers, are potentially susceptible to disruption by strong electromagnetic radiation.
To help design equipment and devices which are resistant to such disruption, such equipment and devices customarily are irradiated during their development with electromagnetic engery at a variety of radio frequencies, and the
effects, if any, of such irradiation on their operation are observed. To avoid interference with ongoing radio services, it
is essential that the test engineer, before turning on the radio transmitter used for such irradiation, listen on the
transmitter frequency to ascertain that there is no other signal on that frequency with which the test transmission might
interfere.
In addition, both the EPA and the FCC have pointed out that Federal agencies and state and local governments are
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currently addressing the problem of potentially excessive public exposure to radio frequency (RF) radiation emitted by
various kinds of equipment. Testing solely to determine the source of, or to measure, RF emissions in order to comply
with or to establish or enforce applicable federal, state or local standards limiting human exposure to RF radiation is
not prohibited by the Electronic Communications Privacy Act.
This legislation was never intended to outlaw such testing, conducted in the ordinary course of the tester's business
or regulatory activities. However, if one who obtained information in the course of such a test went beyond the procedures of the test to use any information obtained through the testing process, he could violate this statute.
Section 102—Requirements for certain disclosures
Section 102 of this legislation amends section 2511 of title 18 of the United States Code to add a new criminal
prohibition on disclosure of electronic communications. It adds a new subsection (3) to section 2511. This amendment
includes the term ‘to the public.’ The Government is included as part of the public. Thus, FTS services are covered.
The language in paragraph (a) of proposed subsection 2511(3) of title 18 provides that a person or entity providing
an electronic communication service to the public shall not intentionally divulge the contents of any communication
(other than one to such person **3580 *26 or entity, or an agent thereof) while in transmission on that service to any
person or entity other than an addressee or intended recipient of such communication or the agent of such addressee or
intended recipient.
Proposed paragraph (b) of new subsection 2511(3) of title 18 sets out exceptions to paragraph (a)'s criminal prohibition on disclosure. Providers of electronic communication services to the public are permitted to divulge the contents
of any such communication (i) as otherwise authorized in section 2511(2)(a) or 2517 or title 18; (ii) with the lawful
consent of the originator or any addressee or intended recipient; (iii) to any person employed or authorized, or whose
facilities are used, to forward such communication to its destination, or (iv) which were inadvertently obtained by the
service provider and which appear to pertain to the commission of a crime if such divulgence is made to a law enforcement agency.
The exceptions to the divulgence bar are relatively straightforward. Providers should be permitted to divulge under
other provisions of the chapter. To be consistent with the one party consent exception found in the chapter, a similar
exception is appropriate here. It is also logical to provide an exception with respect to activities necessary and intrinsic
to the communication activity. Therefore, it is necessary to exempt communication intermediaries.
Finally, if an electronic communications service provider inadvertently obtains the contents of a communication
during transmission and the communication appears to relate to the commission of a crime, divulgence is permitted
when such divulgence is made to a law enforcement agency. If the provider purposefully sets out to monitor conversations to ascertain whether criminal activity has occurred, this exception would not apply.
Section 103—Recovery of civil damages
Section 103 of the Electronic Communications Privacy Act amends existing section 2520 of title 18 of the United
States Code to incorporate violations involving interception, disclosure or intentional use of wire, oral, or electronic
communications.
Proposed subsection 2520(a) of title 18 authorizes the commencement of a civil suit. There is one exception. A civil
action will not lie where the requirements of section 2511(2)(a)(ii) of title 18 are met. With regard to that exception,
the Committee intends that the following procedural standards will apply:
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(1) The complaint must allege that a wire or electronic communications service provider (or one of its employees):
(a) disclosed the existence of a wiretap; (b) acted without a facially valid court order or certification; (c) acted beyond the scope of a court order or certification or (d) acted on bad faith. Acting in bad faith would include failing to
read the order or collusion. If the complaint fails to make any of these allegations, the defendant can move to dismiss
the complaint for failure to state a claim upon which relief can be granted.
(2) If during the course of pretrial discovery the plaintiff's claim provides baseless, the defendant can move for
summary judgment.
(3) If the court denies the summary judgment motion, the case goes to trial. At the close of the plaintiff's case, the
defendant**3581 *27 again can move for dismissal. If that motion is denied, the defendant then has the opportunity
to present to the jury its section 2520 good faith defense.
The plaintiff may bring a civil action under section 2520 whether or not the defendant has been subject to a criminal
prosecution for the acts complained of, but in the absence of such prosecution and conviction, it is the plaintiff's
burden to establish that the requirements of this section are met.
Proposed subsection 2520(b) indicates that appropriate relief in a civil action can include: (1) preliminary and other
equitable or declaratory relief as may be appropriate; (2) damages under subsection (c) and punitive damages in appropriate cases; and (3) a reasonable attorney's fee and other reasonable litigation costs.
Proposed subsection 2520(c) provides a method for the computation of damages. The general rule is set out in
paragraph (2) of subsection (c). The court may assess damages consisting of whichever is the greater of (A) the sum of
the plaintiff's actual damages and any profits the violator made as a result of the violation; or (B) statutory damages of
whichever is the greater of $100 a day or $10,000.
An exception from that general rule is set out in proposed paragraph (1) of subsection 2520(c). This exception applies if the violation consists of the private or home viewing of an unencrypted or unscrambled private satellite video
communication or if the communication is an unencrypted or unscrambled radio communication that is transmitted on
frequencies allocated under subpart D of part 74 of the FCC rules, and the conduct is not for one of the enumerated bad
purposes.
Under subparagraph (A), if the violator has not previously been enjoined in a government action under subsection
2511(5) and has not been found liable in a prior civil action, the court shall assess the greater of the sum of the
plaintiff's actual damages or statutory damages of $50 to $500. Under subparagraph (B), if the violator is a second
offender (one who has been found liable in a prior private civil action under section 2520 or one who has been enjoined in a government suit), the court shall assess the greater of the sum of the plaintiff's actual damages or statutory
damages of $100 to $1000. Third and subsequent offenders are subject to the bill's full civil penalties as described in
the general rule set out in proposed paragraph 2520(c)(2).
Subsection 2520(d) provides a good faith defense for those who comply with court orders or warrants, grand jury
subpoenas, legislative or statutory authorizations, or a request of an investigative or law enforcement officer under
section 2518(7) of title 17 concerning emergency situations. As used in this subsection, the term ‘good faith’ includes
the receipt of a facially valid court order. The fact that the provider of a wire or electronic communication service
received a facially valid court order means that the provider would be entitled to a dismissal of a civil action upon a
showing that he acted within the scope of that order.
Proposed subsection 2520(e) sets out the statute of limitations for actions brought under this section. Actions may
not be commenced more than 2 years after the date on which the claimant first has a reasonable opportunity to discover
the violation.
**3582 *28 Section 104—Certain approvals by justice department officials
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Section 104 of the Electronic Communications Privacy Act amends section 2516(1) of title 18 of the United States
Code to add to the list of Federal officials who may make applications for court orders under chapter 119. Under this
amendment, the list of officials who may be specially designated by the Attorney General to authorize applications
will include any acting Assistant Attorney General, or any Deputy Assistant Attorney General in the Criminal Division. The addition of an acting Assistant Attorney General is not meant to imply rejection in any other context of the
well-established principle that an acting official ordinarily possesses all the legal powers of the official for whom he is
acting, but to clarify the law under this statute.
As indicated in proposed subsection 111(c) of the Electronic Comunications Privacy Act, this section 104 shall take
effect on the date of enactment.
Section 105—Addition of offenses to crimes for which interception is authorized
Section 105 of the Electronic Communications Privacy Act amends existing section 2516 of title 18 to add to the list
of felonies for which a wiretap or bugging order may be obtained under chapter 119. It also adds a new subsection (3)
to section 2516 which addresses applications and orders for interceptions of electronic communications.
Subsection 105(a)—Offenses for which wire and oral interceptions are authorized
Subsection 105(a) of the legislation amends subsection 2516(1) of title 18 by adding to the list of predicate felonies
for which an application for a wiretapping or bugging order may be made. Those crimes are set out in the bill.
Subsection 105(b)—Offenses for which interception of electronic communication are authorized
Subsection 105(b) of the Electronic Communications Privacy Act amends section 2516 to authorize the Government to apply for a court order authorizing or approving the interception of an electronic communication by an investigative or law enforcement officer when an interception may provide or has provided evidence of a Federal felony.
Thus, for non-wire, non-oral electronic communications, a different and less restrictive list of crimes can be used to
justify an application for interception.
The Department of Justice has advised the Committee on the Judiciary that for the three years which follow the date
of enactment of this legislation, this authority will only be exercised pursuant to the approval of the same level of
officials as those involved in the approval of applications for wire interceptions. In addition to this voluntary regulatory limitation, the Department of Justice has committed itself to submitting to the relevant congressional committees
any proposed changes in these regulations at least 90 days in advance of any change.
**3583 *29 Section 106—Applications, orders, and implementation of orders
Section 106 of the Electronic Communications Privacy Act amends section 2518 of title 18 of the United States
Code. This section addresses the implementation of interception orders, reimbursement for providers who assist law
enforcement agencies in carrying out an interception order and minimization requirements. Subsection 106(d) of the
legislation permits law enforcement agencies to request an order for a ‘roving tap’ under certain limited circum-
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stances.
Telephone companies have, as a matter of practice, provided information and technical assistance to law enforcement officials in connection with lawfully authorized wiretaps. They have steadfastly maintained, however, an important distinction between such technical assistance and any active participation in the wiretap itself.
Section 2518(4) of title 18 is a codification of the cooperative working relationship that exists between telephone
companies and law enforcement officials. This section anticipates that these government officials will, and should,
seek the cooperation of telephone companies in accomplishing telephone line interceptions.
Nevertheless, telephone company customers have a reasonable expectation, traditionally enhanced by telephone
company practices and policies, that their company will not become in effect, a branch of Government law enforcement. Accordingly, while technical assistance is provided and paid for, the Committee wishes to make clear that
Section 2518(4) is not intended to authorize and should not be construed as authorizing, issuance of an order for land
line telephone company assistance which either requires a company to actually accomplish or perform a wiretap or
requires that law enforcement wiretap activity take place on land line telephone company premises.
The Committee understands that some cellular service providers may have cooperated with law enforcement officials to establish wiretap connections on the cellular service provider's premises. The Committee does not intend to
alter this specific form of assistance.
The Committee understands that the practice followed with regard to land line telephones is that telephone company
employees do not perform the wiretap itself, and that telephone company premises are not used for wiretap activity.
This procedure is accepted by both company and law enforcement officials. The Committee does not expect any
departure from current practice.
To ensure that the practice does not change, absent a compelling need appropriately addressed to Congress, the
Committee expects the Justice Department to include in its United States Attorneys Manual a statement that no enforcement agency or official shall attempt to compel any telephone company employee to perform any wiretap, or
attempt to compel any such company to make its premises available for wiretap activity. Any proposed amendment to
that language should be reported to the Committee well in advance of dissemination so that the Committee has sufficient opportunity to assess both the extent of which such proposed language comports with its view of the scope of
section 2518(4) as expressed **3584 *30 above and the extent to which any amendment of section 2518(4) to permit
a change in prevailing practice may be warranted by subsequent and compelling changes in technology or other circumstances.
Subsection 106(a)—Place of authorized interception
Subsection 106(a) of the Electronic Communications Privacy Act amends subsection 2518(3) of title 18. It provides,
that in the case of a mobile interception device, a court can authorize an order within its jurisdiction and outside its
jurisdiction but within the United States. This provision applies to both a listening device installed in a vehicle and to
a tap placed on a cellular or other telephone instrument installed in a vehicle.
In most cases, courts will authorize the installation of a device and the device will be installed within the court's
jurisdiction, but the suspect will subsequently move outside that jurisdiction. In certain cases, however, a device
authorized for installation in an automobile may be authorized in one district and the vehicle might be moved to
another district prior to installation. Subsection 106(a) of the bill permits installation in the district to which the vehicle
has been moved.
Nothing in this subsection affects the current law with regard to the use of such devices outside the United States.
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Subsection 106(b)—Reimbursement
Subsection 106(b) of the Electronic Communications Privacy Act establishes that service providers that provide
assistance to the agency carrying out an interception order may be compensated for reasonable expenses incurred in
providing such facilities or assistance. This is designed to permit reimbursement at an amount appropriate to the work
required. In most cases, a flat or general rate will be appropriate, but this change in the existing law will permit
flexibility by authorizing reimbursement at a higher level in unusual cases.
Subsection 106(c)—Minimization
This subsection makes two changes in section 2518(5) of title 18. Under existing law, no section 2518 interception
order may extend longer than 30 days. Paragraph (1) of subsection 106(c) provides a rule for establishing when the 30
days to install a tap or a bug begins to run. Under this rule, the 30-day time period commences on the earlier of the day
on which the officer first begins to conduct the interception, or 10 days after the order is entered.
Paragraph (2) of this subsection of the Electronic Communications Privacy Act provides a special minimization rule
for intercepted communications that are in code or in a foreign language. If an expert in that foreign language or code
is not reasonably available during that interception period, minimization may be accomplished as soon as practicable
after the interception. In this regard, it is contemplated that the translator or decoder will listen to the tapes of an
interception and make available to the investigators the minimized portions preserving the rest for possible court
perusal later.
**3585 *31 Paragraph (2) also provides that the monitoring of interceptions under this chapter may be conducted in
whole or in part by Government personnel, or by individuals operating under contract with the Government, as long as
such personnel are acting under the supervision of an investigative or law enforcement officer authorized to conduct
the interception. This change, which was sought by the Federal Bureau of Investigation, is designed to free field agents
from the relatively routine activity of monitoring interceptions so that they can engage in other law enforcement
activities.
The Committee recognizes that although the statutory standards for minimizing wire, oral, and electronic communications are the same under proposed subsection 2518(5), the technology used to either transmit or intercept an
electronic message such as electronic mail or a computer data transmission ordinarily will not make it possible to shut
down the interception and taping or recording equipment simultaneously in order to minimize in the same manner as
with a wire interception. It is impossible to ‘listen’ to a computer and determine when to stop listening and minimize
as it is possible to do in listening to a telephone conversation. For instance, a page displayed on a screen during a
computer transmission might have five paragraphs of which the second and third are relevant to the investigation and
the others are not. The printing technology is such that the whole page including the irrelevant paragraphs, would have
to be printed and read, before anything can be done about minimization.
Thus, minimization for computer transmissions would require a somewhat different procedure than that used to
minimize a telephone call. Common sense would dictate, and it is the Committee's intention, that the minimization
should be conducted by the initial law enforcement officials who review the transcript. Those officials would delete all
non-relevant materials and disseminate to other officials only that information which is relevant to the investigation.
Subsection 106(d)—Roving taps
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This subsection of the Electronic Communications Privacy Act adds a new subsection (11) to section 2518 of title
18. Under current law, the application and the order for a bug or tap must indicate the ‘particular’ facility or place in
which the interception is to occur. Subsection 106(d) of this legislation sets out new rules for the specificity required in
the description of the place where the interceptions of wire and oral communications are to occur. The Committee
finds such a provision necessary to cover circumstances under which law enforcement officials may not know, until
shortly before the communication, which telephone line will be used by the person under surveillance. Telephone
companies assist law enforcement officials by providing cable and pair information, or leased line facilities when
requested and feasible: this is the information which will be provided to law enforcement for roving taps.
In the case of both oral and wire communications, only a limited list of Federal officials can apply for a special order
seeking relief under this provision.
With regard to ‘oral’ communications, as set out in paragraph (a) of proposal subsection 2518(11), an application for
a special **3586 *32 order must contain a full and complete statement as to why the ordinary specification requirements are not practical. The application must also identify the person committing the offense and whose communications are to be intercepted. The judge must find that the ordinary specification rules are not practical. Situations
where ordinary specification rules would not be practical would include those where a suspect moves from room to
room in a hotel to avoid a bug or where a suspect sets up a meeting with another suspect on a beach or a field. In such
situations, the order would indicate authority to follow the suspect and engage in the interception once the targeted
conversation occurs.
The rule with respect to ‘wire communications' is somewhat similar. As indicated in paragraph (b), the application
must show that the person committing the offense has a purpose to thwart interception by changing facilities. In these
cases, the court must find that the applicant has shown that such a purpose has been evidenced by the suspect. An
example of a situation which would meet this test would be an alleged terrorist who went from phone booth to phone
booth numerous times to avoid interception. A person whose telephone calls were intercepted who said that he or she
was planning on moving from phone to phone or to pay phones to avoid detection also would have demonstrated that
purpose.
Proposed subsection 2518(12) of title 18 provides, with respect to both ‘wire’ and ‘oral’ communications, that
where the federal government has been successful in obtaining a relaxed specificity order, it cannot begin the interception until the facilities or place from which the communication is to be intercepted is ascertained by the person
implementing the interception order. In other words, the actual interception could not begin until the suspect begins or
evidences an intention to begin a conversation.
It would be improper to use this expanded specificity order to tap a series of telephones, intercept all conversations
over such phones and then minimize the conversations collected as a result. This provision puts the burden on the
investigation agency to ascertain when the interception is to take place.
The Subcommittee on Patents, Copyrights and Trademarks added a provision to proposed subsection 2518(12)
allowing a service provider to move the court to modify or quash the order on the grounds that it cannot provide
assistance in a timely or reasonable manner. As indicated, on notice to the Government, the court must decide such a
motion expeditiously.
This provision recognizes that a telephone company may not be able to respond instantaneously to an eleventh hour
target line designation. It is designed to account for the practicalities of telephone company response time, the number
of phones that may be covered by the order, and the geographic area of the target lines that may be used by the person
under surveillance.
The Committee intends that the court look to several factors in considering whether to issue an order pursuant to
proposed paragraph (11)(b). The request for the order, and the order itself, should specify a reasonably limited geo-
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graphic area, the number of phones (and phone numbers) if known, to be intercepted—so as not to render telephone
company cooperation technically infeasible—and the time within which the interception is to be accomplished. The
**3587 *33 failure to make such specifications in the request and/or in the order may be considered evidence of
unreasonableness or untimeliness by a court acting upon a telephone company motion made pursuant to proposed
subsection (12).
The Committee also expects law enforcement officials to continue the current practice of consulting with telephone
company employees regarding the details of implementation (such as phone numbers and the specific locations of the
telephones) in advance of the time any order for interception is sought.
Finally, subsection 106(d) of the Electronic Communications Privacy Act provides that reports to the Administrative Office of the United States Courts under current section 2519 of title 18 on the kind of order or extension applied
for include whether or not the order was one applied for under the relaxed specifity provisions of subsection 2518(11).
Section 107—Intelligence activities
Subsection (a) of this section of the bill clarifies that the amendments made in subsection 102(b) of the bill do not
provide any new authority for intelligence activities but only represent an exemption from the coverage of this chapter
and chapter 121 of title 18 for activities that are otherwise lawful.
Subsection (b) of this section of the bill exempts communications security monitoring activities of the Federal
Government otherwise in accordance with U.S. law and undertaken in accordance with procedures approved by the
Attorney General from coverage under chapter 119 or 121 of title 18. This subsection provides no new authority for
such activities.
Specifically this subsection exempts from the coverage of this act the lawful activities of Federal agencies intended
to intercept encrypted or other official communications for communications security purposes. Communications
security measures are protective measures taken to deny unauthorized persons information derived from U.S. Government telecommunications and to ensure the authenticity of such communications. Communications security protection is the application of security measures to electrical systems generating, handling, proceeding, or using information the loss of which could adversely affect the national interest. Monitoring of security measures and security
protection includes the intentional interception of executive branch official communications, including the communications of certain Government contractors, to provide technical material for analysis to determine the degree of
security being provided to these transmissions. In addition, the interception, by authorized Federal agencies, of radio
communications between foreign powers or agents as defined by the Foreign Intelligence Surveillance Act of 1978,
and the accessing of electronic communications systems used exclusively by a foreign power as defined by the Foreign Intelligence Surveillance Act of 1978, are exempted from coverage of this act by this subsection of the bill.
Section 108—Mobile tracking devices
Subsection (a) of this section of the bill adds a new section to chapter 205 of title 18. This new code section provides
that if a court is empowered a to issue a warrant or other order for the installation**3588 *34 of a mobile tracking
device, and the tracking of the object or person on which the device is installed, such warrant remains valid even if the
device is moved outside the jurisdiction of the court, even outside the jurisdiction of the United States, provided that
the device was installed within the jurisdiction of the court, in conformity with the court order. This clarification does
not effect current legal standards for the issuance of such an order.
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A tracking device is defined as an electronic or mechanical device which permits the tracking of the movement of a
person or object.
Subsection (b) adds a new section 3117, ‘Mobile tracking devices' to the table of contents of chapter 205.
Section 109—Warning subject of surveillance
The section amends section 2232 of title 18 by adding at the end a new subsection. Proposed subsection 2232(c)
adds two new offenses to title 18. First, it makes it a criminal act punishable by a fine under this title and/or imprisonment for not more than 5 years to warn any person that a Federal agency or law enforcement officer has been authorized or has sought authorization under chapter 119 of title 18 to intercept a wire, oral, or electronic communication. Second, the proposed subsection provides the same penalties for warning anyone that a Federal officer has been
authorized or has applied for authorization to conduct electronic surveillance under the provisions of the Foreign
Intelligence Surveillance Act.
The elements of both new crimes are the same. It is required that the defendant have knowledge that the Federal law
enforcement or investigative officer has been authorized or has applied for an interception order. The defendant need
not know that such an application was made under a particular chapter of federal law, rather, only that such application
or order was made under federal law. The defendant must engage in conduct of giving notice of the possible interception to any person who was or is the target of the interception. Finally, the defendants action must have been undertaken with the specific intent to obstruct, impede or prevent the interception. The offense also includes an attempt
to engage in the offense.
Section 110—Injunctive remedy
This section of the act sets out a proposed section 2521 of title 18. Section 2521 adds to the existing criminal and
civil remedies available for violations of this chapter by authorizing the Attorney General to seek an injunction to
prevent felony level violations of this chapter. Section 2521 also provides that preliminary relief can be granted to
prevent a continuing and substantial injury to the United States or to any person for whose protection the action is
brought. Actions under section 2521 are governed by the Federal Rules of Civil Procedure, except that when an indication has been returned against the respondent, discovery is governed by the Federal Rules of Criminal Procedure.
**3589 *35 Section 111—Effective date
Subsection (a) provides that in general the amendments made by this act are effective 90 days after enactment, and
that the act applies only with respect to court orders or extensions made after the effective date. Thus existing court
orders would not be affected by these changes and on-going investigations would not be hindered, but any extension of
an existing court order made 90 days after passage would be governed by these new provision.
Subsection (b) provides a special rule for the effective date in the case of state authorizations of interceptions. This
special effective date rule is necessary because the provisions of chapter 119 of title 18 supersede state laws with
respect to electronic communications. Under chapter 119, the states must enact statutes which are at least as restrictive
as the provisions of chapter 119 before they can authorize their state courts to issue interception orders. Because of the
substantial changes made by this act it is appropriate to grant the states sufficient time to modify their laws. This
special effective date rule gives the states two years to amend their laws to meet the new requirements of chapter 119.
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Subsection (c) provides that section 104 of the act is effective upon enactment. Section 104 modifies Justice Department procedures for approval of requests under this chapter, since section 104 is designed to alleviate management
difficulties at the Department of Justice there is no reason to delay implementation of these changes.
TITLE II—STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS
ACCESS
Section 201—Title 18 amendment
This section amends title 18 by adding at the end thereof a new chapter 121 consisting of ten new sections. These
sections are discussed below.
New section 2701—Unlawful access to stored communications
Subsection (a) of this new section creates a criminal offense for either intentionally accessing, without authorization, a facility through which an electronic communication service is provided, or for intentionally exceeding the
authorization for accessing that facility. Subsection 2701, also provides that the offender must obtain, alter, or prevent
authorized access to a wire or electronic communication while it is in electronic storage in such an electronic storage
system in order to commit a violation under the subsection. The term ‘electronic storage’ is defined in section
2510(17) of title 18 and includes both temporary, intermediate storage of a wire or electronic communication incidental to the transmission of the message, and any storage of such a communication by the electronic communication
service for purposes of backup protection of the communication.
This provision addresses the growing problem of unauthorized persons deliberately gaining access to, and sometimes tampering with, electronic or wire communications that are not intended to be available to the public.
**3590 *36 This subsection does not prevent broad authorizations to the general public to access such a facility. The
bill does not for example hinder the development or use of ‘electronic bulletin boards' or other similar services where
the availability of information about the service, and the readily accessible nature of the service are widely known and
the service does not require any special access code or warning to indicate that the information is private. To access a
communication in such a public system is not a violation of the Act, since the general public has been ‘authorized’ to
do so by the facility provider.
However, the offense of intentionally exceeding an authorization to access a computer facility would apply both to
public and private aspects of a system. For example, a computer mail facility authorizes a subscriber to access information in their portion of the facilities storage. Accessing the storage of other subscribers without specific authorization to do so would be a violation of this provision. Similarly, a member of the general public authorized to
access the public portion of a computer facility would violate this section by intentionally exceeding that authorization
and accessing the private portions of the facility.
Subsection (b) of this new section provides punishment for violation of subsection (a). A distinction is drawn between offenses committed for purposes of commercial advantage, malicious destruction or damage, or for private
commercial gain and all other types of violation. If the offense is committed for private or commercial gain or for
malicious destruction the subsection provides a fine of not more than $250,000 or imprisonment for not more than one
year, or both, for a first offender. Second and subsequent offenders are subject to the same fine provision but a jail term
up to two years can be imposed for such violations. In all other cases the fine is limited to not more than $5,000 and
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imprisonment for not more than 6 months or both.
Subsection (c) of this new section provides exceptions to the violations contained in subsection (a). It is not a violation of subsection (a) if the conduct was authorized by the person or entity providing the wire or communications
service, or if the conduct was authorized by the user of that service with respect to communications of or intended for
that user or if the conduct is authorized by new sections 2703, 2704, or 2518 or title 18.
New section 2702—Disclosure of contents
Proposed section 2702 is divided between electronic communication services and remote computing services. The
restrictions on the service provider are the same in each instance. However, as described below, there is different
treatment for electronic communication service providers and remote computing services with regard to government
access.
Subsection (a) of this new section prohibits the provider of an electronic communications service or the provider of
a remote computing service from knowingly divulging the contents of any communication. The ‘contents' of a
communication has the same meaning in this section as it has in subsection 2510(8) of title 18 or the United States
Code as amended by section 101(a)(5) of this Act. The requirement that a violator must ‘knowingly’ divulge the
contents**3591 *37 is intended to make clear that ‘reckless' or ‘negligent’ conduct is not sufficient to constitute a
violation of this section. Subsection (b) of this section provides exceptions to this general rule of non-disclosure.
The application of new code section 2702(a) generally prohibits the provider of a wire or electronic communication
service to the public from knowingly divulging the contents of any communication while in electronic storage by that
service to any person other than the addressee or intended recipient. Similarly, section 2511(3) of title 18, as amended
by this Act, prohibits such a provider from divulging the contents of a communication while it is in transmission.
Neither provision, however, nor any other provision in the Act, is intended to affect any other provision of federal law
that prohibits the disclosure of information on the basis of the content of the information, such as the Fair Credit
Reporting Act.
The application of sections 2701(a) and 2511(3) is limited to providers of wire or electronic communications services. There are instances, however, in which a person or entity both acts as a provider of such services and also offers
other services to the public. In some such situations, the bill may allow disclosure while another federal requirement,
applicable to the person or entity in another of its roles, prohibits disclosure. The Committee intends that such instances be analyzed as though the communication services and the other services were provided by distinct entities.
Where a combined entity in its non-provider role would not be allowed to disclose, the appropriate outcome would be
non-disclosure.
Subsection (b) of this new section provides exceptions to the general rule of nondisclosure provided in subsection
(a). These exceptions permit disclosure: (1) to the addressee or intended recipient of the communication or the authorized agent of such addressee or intended recipient; (2) in conformity with a court order issued pursuant to the
procedures in section 2516 of title 18; or in the course of normal business practice as defined in section 2511(2)(a) of
this title; or to the government under procedures of new section 2703; (3) with the lawful consent of the sender or the
addressee or an intended recipient of such communication or with the consent of the subscriber in the case of a remote
computing service; (4) to a person employed or authorized or whose facilities are used to forward the communication
to its ultimate destination; (5) as necessary in order to render the service or to protect the rights or property of the
provider of the service: of (6) to a law enforcement agency, if the contents were inadvertently obtained by the service
provider and appear to pertain to the commission of a crime.
The exceptions to the general rule of nondisclosure provided in subsection (b) fall into three categories. The first
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category are those disclosures which are authorized by either the sender or receiver of the message. Either the sender
or the receiver can directly or through authorized agents authorize further disclosures of the contents of their electronic
communication. The second category are disclosures which are necessary for the efficient operation of the communications system. Such business procedures are included in the section 2511(2)(a) exemption as well the exemptions
of this subsection relating to the disclosure of the message to forwarding facilities and the exemption for service
provider activities designed to **3592 *38 protect the system and perform the service. The third category are disclosures to the government. In this area there are two types of disclosures. Those pursuant to a court order under the
procedures of sections 2516 and 2703 and those disclosures undertaken at the initiative of the service provider in the
exceptional circumstances when the provider has become aware of the contents of a message that relate to ongoing
criminal activity.
New section 2703.—Requirements for governmental access
Subsection (a) of section 2703 provides requirements for the government to obtain the contents of an electronic
communication that has been in electronic storage for 180 days or less. A government entity can only gain access to
the contents of such an electronic communication pursuant to a warrant issued under the Federal Rules of Criminal
Procedure or an equivalent State warrant.
Subsection (b) of section 2703 provides that for electronic communications that are maintained by a remote computing service and that have been in storage in an electronic communication service for more than 180 days the
Government can gain access in several ways. If the Government wishes to obtain the contents of a communication
without the required notice to the subscriber then the governmental entity must obtain a warrant issued under the
Federal Rules of Criminal Procedure or an equivalent State warrant. With prior notice from the government entity to
the subscriber or customer, the entity may obtain the contents of the electronic communication either by using an
administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury subpoena or obtain a
court order pursuant to subsection (d) of this section. In addition, the required notice may be delayed pursuant to the
requirements of section 2705 of title 18 as provided in the Act.
Subsection (b) of new section 2703 of title 18 is made applicable to all electronic communications held or maintained by the service provider on behalf of a customer or subscriber and received by means of electronic transmission
as well as electronic communications in storage or computer processing if the provider is not authorized to access the
contents of any communications for purposes other than storage or computer processing.
Subsection (c) provides for access to records or other information pertaining to a subscriber to or customer of an
electronic communications or remote computer service, not including the content of electronic communications. This
section permits the provider of the service to divulge, in the normal course of business, such information as customer
lists and payments to anyone except a Government agency. It should be noted that the information involved is information about the customer's use of the service not the content of the customer's communications.
A provider of electronic communication service or remote computing service must disclose information pertaining
to a subscriber or customer, but not the contents of any communications of that customer, to a Government entity only
when the Government entity either (i) uses an administrative subpoena authorized by a Federal or State statute, or a
Federal or State grand jury subpoena; (ii) obtains a warrant issued under the Federal Rules of Criminal Procedure or an
equivalent state warrant; (iii) obtains a court **3593 *39 order for such disclosure under subsection (d) of this section;
or (iv) has obtained the consent of the subscriber. A Government entity which receives customer records pursuant to
one of these four alternatives is not required to provide notice to the subscriber or customer that it has requested or
obtained this information.
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Subsection (d) provides that orders requiring access by a Government entity to the contents of a wire or electronic
communication or to the records or other information sought shall issue only if the governmental entity shows there is
reason to believe the contents of the wire or electronic communication, or the records or other information sought, are
relevant to a legitimate law enforcement inquiry. This section provides no authority for the issuance of a state subpoena that is prohibited under the law of such state.
This subsection also permits the provider of the communications or remote computing service to move to quash or
modify any other issued under this section if the information or records requested are unusually voluminous or compliance with the order would cause an undue burden on the provider. This specific standing for the service provider to
contest an overly broad order is intended to protect the service provider from unduly burdensome requirements and to
permit an impartial judicial officer to evaluate the appropriateness of the government's request.
Subsection (e)—No cause of action against a provider disclosing information under this chapter.
This subsection of the proposed new section provides a defense for the service provider, its employees and officers,
from suits arising because of its disclosure of information pursuant to a warrant or other court order issued under this
chapter.
New section 2704—Backup preservation
Subsection (a) of proposed section 2704 of title 18 provides that a Government entity may include in its subpoena or
court order obtained pursuant to the provisions of new section 2703(b)(2) a requirement that the service provider
create and maintain a duplicate copy of the contents of the electronic communications sought in order to preserve
those communications. Without notifying the customer or subscriber, the service provider must create such a duplicate
copy as soon as practicable and confirm to the Government entity that the duplicate file has been created. In all cases
the service provider must create such a duplicate file within two business days after receipt by that provider of the
subpoena or court order directing that such a duplicate file be created.
Paragraph (2) of this new subsection requires the Government entity to give notice to the subscriber or customer that
such a duplicate file has been created and has been ordered to be provided to the Government. This notification to the
customer or subscriber must be given within three days of the receipt of confirmation from the service provider (as
required by subsection (a) above) that the duplicate file has been created, unless the Government agency has obtained
permission to delay such notification pursuant to proposed subsection 2705(a).
Paragraph (3) also prohibits the service provider from destroying the backup copy until the information has been
delivered to the Government entity or any proceedings, including all appeals, concerning**3594 *40 the Government's subpoena or court order have been resolved, whichever is later. The service provider is required to comply with
the order and release the copy to the requesting Government entity no sooner than fourteen days after the Government
entity has notified the subscriber or customer that it is seeking this information.
Paragraph (4) provides that the service provider should release the information to the Government only if the service
provider has not received notice from its subscriber or customer that the subscriber or customer has challenged the
Government's request and if the service provider has not itself challenged the request of the Government entity.
Finally, paragraph (5) provides that when a Government entity seeks to require the creation of the backrup or duplicate copy under this subsection and the governmental entity further determines that notification under section 2703
of this title of the existence of the subpoena or court order may result in destruction of or tampering with the evidence
this later determination is not subject to challenge either by the subscriber or customer or by the service provider.
While this subtitle provides the subscriber or customer, and in some circumstances the service provider a right to
challenge the necessity for or scope of a court order, neither this section or any other section of this Act provides
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grounds to challenge the determination of the Government agency that no notification is to be given to the subscriber
or customer of the mere creation of the duplicate file. The file is created and maintained by the service provider solely
for the purpose of assuring that potential evidence is not tampered with or destroyed. Keeping the fact of the creation
of this file secret does not harm any privacy interest since there are adequate safeguards included in the bill and in this
chapter to control the actual release of the duplicate file to the Government agency.
Subsection (b) of proposed section 2704 provides a procedure for challenges to a court order by the subscriber or
customer. The subscriber or customer whose records are sought can within 14 days after notification by the Government under subsection (a)(2) of this section file a motion to quash such subpoena or vacate such court order in an
appropriate State or Federal court. The subscriber or customer challenging the subpoena or order must serve a copy of
the motion on the governmental entity and provide written notice to the service provider that such a challenge has been
initiated.
The subsection further provides that the application or motion must state that the applicant is the customer or subscriber to the service from which the contents of electronic communications maintained for him have been sought and
state the reasons for believing that the records sought are not relevant to a legitimate law enforcement inquiry or state
that there has not been substantial compliance with the provisions of this chapter in some other respect.
The service required by this subsection shall be made upon the governmental entity by delivering or mailing by
registered or certified mail a copy of the papers to the person, or office, or department specified in the notice which the
customer has received pursuant to this chapter. The term ‘delivery’ in this subsection has **3595 *41 the meaning
given that term in the Federal Rules of Civil Procedure.
If a court determines that the customer or subscriber has complied with the requirements for such a motion including
the requirements of ‘dlivery’ to the Government entity, then the court shall order the Government entity to file a sworn
response to the motion or application. Such response may be in camera if the governmental entity includes in its
response the reasons which make such an in camera review appropriate. If the motion and response provide insufficient information for the court to make a determination, the court may conduct such additional proceedings as it deems
appropriate. Any additional proceedings and a decision on the challenge shall occur as rapidly as feasible, i.e. within 7
calendar days in all but the most unusual circumstances.
The subsection also provides that the court shall enforce the process if it finds that the applicant challenging the
order or application is not the subscriber or customer for whom the records are maintained or if it finds that the law
enforcement inquiry is legitimate and that the communications sought are relevant to that inquiry. If the court finds
that the customer or subscriber challenging the order or application is the subscriber or customer for whom the records
are maintained and that the records are not relevant to a legitimate law enforcement inquiry or that there has not been
substantial compliance with the provisions of this chapter in some other respect, then the court shall order the process
quashed.
Finally, the subsection provides that a court order denying a motion or application under section 2704 shall not be
deemed a final order and no interlocutory appeal may be taken by the customer or subscriber from such a denial.
In the event that there is no indictment then the person whose records are involved may move for the return of the
records. Obviously, nothing precludes a customer or subscriber who is later the subject of a criminal proceeding from
raising these issues again subject to the sanctions limitation of section 2708 of title 18.
New section 2705—Delayed notice
This proposed section provides procedures and requirements for implementation for a delay of notice to the customer or subscriber that his records are being sought or have been provided to a government entity.
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Subsection (a) of this section 2705 provides that when a Government entity seeks or obtains access to the contents of
an electronic communication by application for a court order notification can be delayed for an initial period of up to
90 days, if the Government entity requests such a delay and the court determines that there is reason to believe that the
notification of the existence of the court order may have an adverse result as described in this subsection. Where an
administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury subpoena is obtained,
a delay of notification for a period of not more than 90 days can be obtained upon the execution of a written certification of a supervisory official that there is reason to believe that notification of the existence of the subpoena may
have an adverse result.
**3596 *42 For purposes of a delay of notification, an adverse result is defined as (A) endangering the life or
physical safety of an individual; (B) flight from prosecution; (C) destruction of or tampering with evidence; (D) intimidating of potential witnesses; or (E) otherwise seriously jeopardizing an investigation or unduly delaying a trial.
In the case of an administrative or grand jury subpoena, the governmental entity is required to maintain a true copy
of the required certification, and the certification can only be given by a ‘supervisory official’. The subsection defines
such an official as the investigative agent in charge of an agency's headquarters or regional office, or the assistant to
such an agent or the equivalent, or the chief prosecuting attorney or the first assistant prosecuting attorney of an
agency's headquarters or regional office, or the equivalent.
The subsection also provides that extensions of the delay period for not more than 90 days each may be granted by
the court upon application or by certification by the government agency provided the requirements of subsection (b) of
section 2705 are met for each extension.
When the delay period, including any extensions thereof, as provided in this subsection and subsection (b), has
expired the governmental entity must serve upon, or deliver by registered or first-class mail to the customer or subscriber, a copy of the process or request together with notice that states the nature of the law enforcement inquiry and
informs the customer or subscriber: (i) that the information maintained for such customer or subscriber by the service
provider was supplied or requested by the Government agency and stating the date on which the information was
supplied or requested; (ii) that notification to the customer of this action was delayed; (iii) what Government entity or
court made the certification or determination that notification could be delayed; and (iv) which provision or provisions
of this chapter allowed the delay.
Subsection (b) provides that if a governmental entity has delayed notice or has not been required to give notice
under the provisions of section 2703, then the governmental entity may also apply to the court for an order commanding a provider of electronic communications service or remote computing service to whom a warrant, subpoena,
or court order is directed, not to notify any peson of the existence of the warrant, subpoena, or court order. The court is
required to enter such an order to prevent disclosure by the service provider if notification of the existence of the
warrant, subpoena, or court order will result in any of the five adverse results listed in this subsection. The entity must
apply to a court for preclusion under this subsection, even if the underlying process—an administrative subpoena, for
example—does not require a court order.
New section 2706—Cost reimbursement
This proposed section provides that when a governmental entity obtains the contents of communications, records or
other information under the authority of sections 2702, 2703, or 2704, it shall pay to the person or entity assembling or
providing the information a fee for reimbursement for the reasonably necessary direct costs. The section provides an
exception to this general rule with regard to records or other information maintained by a communications **3597 *43
common carrier that relate to telephone toll records and telephone listings obtained under section 2703. No fee is
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normally required for access to such records. However, the court may order a payment if the court determines the
information required is unusually voluminous. The amount of the fee provided in this subsection is to be mutually
agreed upon by the governmental entity and the person or entity providing the information. If they are unable to reach
an agreement, the court which issued the order for production of the information, or the court before which a criminal
prosecution relating to the information would be brought if no court order was issued, is empowered to determine a
reasonable fee.
New section 2707—Civil action
Subsection (a) of this proposed section provides that, except as provided in section 2703(e), any provider of electronic communication service, subscriber, or customer of such service aggrieved by any violation of this new chapter
may recover from any person or entity—including governmental entities—who knowingly or intentionally violated
this chapter.
Under subsection (b), appropriate relief in a civil action under this title includes: (1) such preliminary, declaratory,
or other equitable relief as may be appropriate; (2) damages under the section including the sum of actual damages
suffered by the plaintiff and any profits made by the violator as the result of the violation as provided in (c) with
minimum statutory damages of $1,000; and (3) reasonable attorney's fees and other reasonable litigation costs.
The section also provides a defense to an action under this chapter. If the defendant's action was based on a good
faith reliance on a court order or warrant, a grand jury subpoena, a legislative or statutory authorization; or a request of
an investigative or law enforcement officer under section 2518(7) of this title, or if it was based on a good faith determination that section 1511(3) of this title permitted the conduct complained of, then this good faith reliance or
determination is a complete defense to any civil or criminal action brought under this chapter or under any other law.
This new section also provides that any action under this section must be commenced not later than 2 years after the
date upon which the claimant first discovered or had a reasonable opportunity to discover that a violation had occurred.
New section 2708—Exclusivity of remedies
The remedies and sanctions provided in this chapter are the only judicially available remedies and sanctions for
nonconstitutional violations of the chapter.
New section 2709.—Counterintelligence access to telephone toll and transactional records
Section 2709 provides for FBI counterintelligence access to telephone toll and transactional records. This provision
is substantially the same as language recently reported by the Intelligence Committee as section 503 of the Intelligence
Authorization Act for Fical Year 1987. There are two differences. The first is that section 2709 applies not only to FBI
requests for telephone subscriber information and toll billing information, but also to FBI requests **3598 *44 for
electronic communication transactional records. This ensures that the FBI has the necessary authority with regard to
subscriber information and toll billing information with respect to electronic communication services other than ordinary telephone service.
Section 2709 is a carefully balanced provision that remedies the defect in current law that the FBI cannot gain access
on a mandatory basis to telephone toll records maintained by communications common carriers, for counterintelli-
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gence purposes. As a result, especially in states where public regulatory bodies have created obstacles to providing
such access, the FBI has been prevented from obtaining these records, which are highly important to the successful
investigation of counterintelligence cases.
The second difference concerns the standard that the FBI must meet before it can require a common carrier or service provider to supply the requested records. Section 2709 requires a certification by a designated FBI official that the
information sought is relevant to an authorized foreign counterintelligence investigation and that there are specific and
articulable facts giving reason to believe that the person or entity to whom the information sought pertains a foreign
power or an agent of a foreign power as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978.
Section 503 of the Intelligence Authorization Act for Fiscal Year 1987, as reported by the Intelligence Committee,
contains a slightly different ‘reason to believe’ standard requiring specific and articulable facts giving reason to believe that the target ‘is or may be’ a foreign power or an agent of a foreign power.
Subsection 2709(a) of this proposed section provides that a wire or electronic communication service provider must
comply with a request for subscriber information and toll billing records in its custody or possession made by the
Director of the Federal Bureau of Investigation under subsection (b) of this section. It should be noted that this applies
only to transactional records, not to the content of the electronic messages of a customer or subscriber.
Subsection 2709(b) provides that in order for the requirement to provide information in subsection (a) of this section
to apply, the Director of the Federal Bureau of Investigation, or a specific person within the Bureau designated for this
purpose by the Director, must certify in writing to the wire or electronic communication service provider that (1) the
information sought is relevant to an authorized foreign counterintelligence investigation; and (2) that there are specific, articulable facts giving reason to believe that the person or entity to whom the information sought pertains is a
foreign power or an agent of a foreign power as defined in section 101 of the Foreign Intelligence Surveillance Act.
The House Judiciary Committee report on the Electronic Communications Privacy Act of 1986 does not discuss the
meaning of the ‘reason to believe’ standard in section 2709. It is essential, therefore, to clarify the intent of the Senate
with respect to this item.
The ‘reason to believe’ requirement in section 2709 is intended to be substantially less stringent than the requirement of ‘probable cause.’ It is intended that the application of the ‘reason to believe’ requirement will be determined
by a senior FBI official at the level of Deputy Assistant Director or above. It is intended that **3599 *45 in applying
the ‘reason to believe’ standard to a specific case, the FBI official may take into account any facts or circumstances
that a prudent investigator would consider, so long as there is an objective, factual basis of the determination.
The Senate Select Committee on Intelligence has informed the Judiciary Committee that the language contained in
the bill would not significantly affect the application of the current FBI investigative standard in this area. Further
discussion of the investigatory standard in particular cases is contained in the reports of the Senate Select Committee
on Intelligence and the House Permanent Select Committee on Intelligence on FY 87 Intelligence Authorization Act
(S. 2477 and H.R. 4759).
Subsection 2709(c) prohibits a service provider, or any officer, employee, or agent of the service provider from
disclosing to any person that the Federal Bureau of Investigation has sought or obtained access to information or
records under this section.
Subsection 2709(d) permits the Federal Bureau of Investigation to disseminate such information only in conformance with guidelines approved by the Attorney General for foreign intelligence and foreign counterintelligence
investigations. If the information is to be disseminated to another federal agency, it can only be disseminated if the
information is clearly relevant to the authorized responsibilities of such agency.
Subsection 2709(e) further requires that on a semiannual basis the Director of the Federal Bureau of Investigation
fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Com-
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mittee on Intelligence of the Senate concerning all requests made by the Bureau under subsection 2709(b).
New section 2710—Definitions for chapter
Terms used in section 2510 retain the definitions given to each term by that section. The term ‘remote computing
service’ is defined to mean the provision to the public of computer storage, or computer processing services by means
of an electronic communications system.
This section also provides for the change in the table of chapters of title 18 of the United States Code by adding
chapter 121 to the table.
Section 202—Effective date
This section provides that the amendments made by Title II of the bill shall be effective 90 days after the date of
enactment. It further provides that changes made by this title that apply to conduct pursuant to court order or extension,
apply only with respect to court orders or extensions made after the effective date of the title.
TITLE III—PEN REGISTERS AND TRAP AND TRACE DEVICES
Title III of the Electronic Communications Privacy Act proposes to add a new chapter 206 to title 18 of the United
States Code. This chapter will govern the use, application and issuance of orders for pen registers and trap and trace
devices. Those terms are defined **3600 *46 in proposed section 3126 of title 18. Briefly, a pen register is a device
which can be attached to a telephone line for the purpose of decoding and recording the numbers dialed from that line.
A trap and trace device is used to identify the originating number of an incoming wire or electronic communication.
These devices do not identify or record the contents of the communciation.
Section 301—Pen registers and trap and trace devices
Subsection 301(a) of the Electronic Communications Privacy Act sets out the six proposed sections of title 18
governing pen registers and trap and trace devices.
New section 3121—General prohibition on use of pen registers and trap and trace devices
Subsection (a) of proposed section 3121 of title 18 contains a general prohibition against the installation or use of a
pen register or trap and trace device without a court order. Such a court order may be obtained under section 3123 of
title 18 or under the Foreign Intelligence Surveillance Act (FISA).
Proposed subsection 3121(b) contains exceptions to subsection (a)'s general prohibition against the use of pen
registers and trap and trace devices. Providers of electronic or wire communication services may use pen registers or
trap and trace devices if one of three conditions are met. The provider may use a pen register or trap and trace device
(1) if it relates to the operation, maintenance, and testing of a wire or electronic communication service, or to the
protection of the rights or property of such provider, or to the protection of users of that service from abuse or unlawful
use of the service; (2) to record the fact that a wire or electronic communication was initiated or completed in order to
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protect the provider, another provider furnishing service toward completion, or a user of that service from fraudulent,
unlawful or abusive use of service; or (3) where the consent of the user has been obtained.
Proposed subsection 3121(c) imposes a penalty for a knowing violation of subsection (a). The penalty is a fine under
this title, imprisonment for up to 1 year, or both.
New section 3122—Applications
Proposed section 3122 of title 18 sets out the procedures for applying for a court order for a pen register or trap and
trace device. Under subsection (a), a government attorney may apply for an order, or the extension of an order, authorizing or approving the installation and use of a pen register or trap and trace device. Such order must be made in
writing under oath or affirmation to a court of competent jurisdiction.
Proposed paragraph 3122(a)(2) contains parallel provisions for state investigative or law enforcement officers. The
phrase ‘Unless prohibited by state law,’ makes clear that this law does not preempt any existing state law regulating
the installation and use of pen registers or trap and trace devices by state officials. To the extent that state law currently
provides that a pen register or trap and trace device may only be installed or used by a state official based on some
other, higher standard of proof, that law will continue in effect with respect to such officials.
**3601 *47 Proposed subsection 3122(b) of title 18 sets out the contents required in an application for a court order
for a pen register or a trap and trace device. The application must include the identity of the applicant and the law
enforcement agency conducting the investigation. Also, the applicant must certify that the information likely to be
obtained is relevant to an ongoing criminal investigation being conducted by the agency.
New section 3123—Issuance of orders
Subsection (a) of proposed section 3123 provides that, upon application, a court shall issue an ex parte order authorizing the installation and use of a pen register or trap and trace device within its jurisdiction. To issue an order, the
court must first be satisfied that the information sought is relevent to an ongoing criminal investigation. This provision
does not envision an independent judicial review of whether the application meets the relevance standard, rather the
court needs only to review the completeness of the certification submitted.
Proposed paragraph 3123(b)(1) describes the contents of the order authorizing the use or installation of a pen register or trap and trace device. The order shall specify (A) the identity, if known, of the person whose telephone line will
receive the pen register; (B) the identity, if known, of the person who is under criminal investigation; (C) the number
and, if known, location of the telephone line and, in the case of a trap and trace device, the geographic limits of the
order; and (D) a statement of the offense to which the information likely to be obtained relates.
Under proposed paragraph 3123(b)(2), the order, upon request of the applicant, shall direct a third party to furnish
information, facilities, and technical assistance necessary to install the pen register or trap and trace device. This
provision of the order relating to cooperation is intended to codify the existing informal practice of cooperation between telephone companies and the Department of Justice.
Under proposed subsection 3123(c), the time period of authorization of installation and use of a pen register or a trap
and trace device is 60 days, with possible extensions of 60 days. An extension may be granted upon application for a
section 3122 order. The same judicial findings required by subsection 3123(a) are also required.
Proposed subsection 3123(d) provides that an order authorizing or approving the installation and use of a pen register or trap and trace device shall direct that the order be sealed, until otherwise ordered by the court. In addition, the
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order shall bar the disclosure of the existence of the pen register or trap and trace device and the disclosure of an
investigation to the listed subscriber or to any other unauthorized person unless or until otherwise directed by the
court. Intentional violations of the non-disclosure provisions may be, in appropriate circumstances, punishable as
contempt.
New section 3124—Assistance in installation and use
Proposed subsection 3124(a) provides that upon the request of an authorized person, a wire or electronic communication service provider, landlord, custodian, or other person shall furnish such requester**3602 *48 with all information, facilities, and technical assistance necessary to effectuate the pen register order unobtrusively and with a
minimum of interference. The Committee assumes that the current practice of law enforcement officials installing and
maintaining pen registers will continue.
For trap and trace devices, proposed subsection 3124(b) provides that upon request of a government attorney or law
enforcement officer authorized to receive the results, a wire or electronic communication service provider, landlord,
custodian or other person shall promptly install the trap and trace device and furnish the requester all additional information, facilities and technical assistance, including installation and operation of the device unobtrusively and with
a minimum of interference with services, provided that the installation and service is ordered under section 3123(b).
This provision also requires that the results be furnished to the law enforcement officer designated by the court, at
reasonable intervals, during regular business hours for the duration of the order, unless the court orders otherwise.
Proposed subsection 3124(c) provides reasonable compenation for those providing facilities and assistance under
this section. This compensation provision is modeled after that which applies under section 2518 of title 18 and
subsection 106(b) of this bill. It is intended to be interpreted and implemented in a similar fashion.
Proposed subsection 3124(d) provides that no cause of action shall lie in any court against a wire or electronic
communication service provider, its officers, agents, employees or other specified persons for providing information,
assistance or facilities in accordance with the terms of a chapter 206 court order.
Proposed subsection 3124(e) establishes a good faith defense against any civil or criminal action brought under
chapter 206 or any other law.
New section 3125—Reports
Under a current order of the Attorney General, statistics concerning pen registers are compiled. Proposed section
3125 requires that this information be reformulated and submitted to the appropriate committees of Congress. It also
extends such reporting requirements to trap and trace devices.
Specifically, proposed section 3125 requires that the Attorney General annually report to Congress on the number of
pen register and trap and trace device orders applied for by law enforcement agencies of the Department of Justice.
The Committee requests that these reports include information as to the nature of the offenses for which the pen
registers and trap and trace devices are being used.
New section 3126—Definitions
Proposed section 3126 contains definitions for this chapter. The terms ‘wire communication,’ ‘electronic communication,’ and ‘electronic communication service’ have the same meanings as in section 2510 of title 18. The term
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‘court of competent jurisdiction’ means (A) a district court of the United States (including a magistrate of such court)
or a U.S. Court of Appeals; or (B) a state court **3603 *49 of general criminal jurisdiction authorized to enter pen
register or trap and trace orders.
As indicated in proposed section 3126(3), the term ‘pen register’ means a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted for purposes of routing telephone
calls, with respect to wire communications, on the telephone line to which such device is attached. Pen registers do not
record the contents of a communication. They record only the telephone numbers dialed.
Devices used by a provider or customer or wire or electronic communication service incident to billing or cost
accounting, or for any other similar purposes in the ordinary course of business are excluded from the definition of a
pen register. Thus, devices that many companies and firms use to record billable time for their clients' accounts are
outside this bill's prohibitions against the installation and use of pen registers.
Trap and trace devices are defined in proposed subsection 3126(4). A ‘trap and trace device’ is a device which
captures the incoming electronic or other impulses which identify the originating number of an incoming wire or
electronic communication. Trap and trace devices do not record the contents of communications.
The term ‘attorney for the government’ has the meaning given to that term by the Federal Rules of Criminal Procedure. The term ‘State’ means a State, the District of Columbia, Puerto Rico, and any other possession or territory of
the United States.
Subsection 301(b) of the bill contains a clerical amendment to the table of chapters.
Section 302—Effective date
Section 302 of the bill contains the effective date for Title III of the Electronic Communications Privacy Act.
Subsection (a) provides that as a general rule, Title III of the bill shall take effect 90 days after enactment. In the case
of conduct pursuant to a court order or extension, these amendments apply only with respect to court orders or extensions made after this title takes effect. Subsection 302(b) of the bill contains special rules which, in essence, give
states two years to bring their laws into conformity with the Electronic Communications Privacy Act's amendments to
Federal law.
Section 303—Interference with the operation of a satellite
This section of the bill adds a new section to chapter 65 of title 18, United States Code.
New section 1367—Interference with the operation of a satellite
Subsection (a) of this proposed section provides that anyone who, without the authority of the satellite operator,
intentionally or maliciously interferes with the authorized operation of a satellite or obstructs or hinders any satellite
transmission, including both the transmission from the ground to the satellite and the transmission from the satellite to
the ground (commonly known as the up-link and the down-link respectively) is subjected to criminal penalties including a fine of up to $250,000, imprisonment for not more than 10 years, or both. The subsection does not prohibit
any actions by **3604 *50 the authorized satellite operator which are designed to protect the satellite from unauthorized use.
Subsection (b) of this new section makes it clear that the criminal act described in subsection (a) does not include
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any lawfully authorized investigative, protective, or intelligence activity of a law enforcement or intelligence agency
of the United States. This subsection does not provide any new authority for such activities.
Finally, this section of the bill provides that the table of sections for chapter 65 of title 18 is amended to include the
new section 1367.
VI. AGENCY VIEWS
On June 25, 1986 and July 29, 1986, the Committee received the following letters from the Department of Justice.
U.S. DEPARTMENT OF JUSTICE,
OFFICE OF LEGISLATIVE AND INTERGOVERNMENTAL AFFAIRS,
Washington, DC, June 25, 1986.
Hon. STROM THURMOND,
Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC.
DEAR MR. CHAIRMAN: This letter is to advise you of the Department of Justice's position with regard to S. 2575,
the Electronic Communications Privacy Act of 1986. This bill, which is identical to H.R. 4952 as recently passed by
the House of Representatives, makes important changes to the existing wiretap statutes and fills gaps in current laws
by creating provisions to regulate interception of and access to new forms of electronic communication such as data
transmissions.
The Department of Justice has worked intensively on this legislation over the past several weeks with the staff of the
Subcommittee on Patents, Copyrights and Trademarks, as well as with interested representatives of industry and civil
liberties groups. While initial versions of this legislation did not in our view adequately safeguard legitimate and vital
law enforcement and national security needs for access to communications, as a result of the negotiations that have
occurred the bill has been substantially modified to accommodate our concerns. In our judgment the bill as presently
drafted fairly balances the interests of privacy and law enforcement and its enactment would represent a major accomplishment of the 99th Congress, holding forth the promise of significant benefits for business, privacy, and law
enforcement alike.
Accordingly, the Department of Justice strongly supports the enactment of S. 2575.
Sincerely,
JOHN R. BOLTON,
Assistant Attorney General.
**3605 *51 U.S. DEPARTMENT OF JUSTICE,
OFFIE OF LEGISLATIVE AND
INTERGOVERNMENTAL AFFAIRS,
Washington, DC, 20530 July 29, 1986.
Hon. STROM THURMOND,
Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC.
DEAR MR. CHAIRMAN: This is with further reference to my letter of June 25, 1986, expressing support for S.
2575, the Electronic Communications Privacy Act of 1986. A copy of my earlier letter is enclosed for ready reference.
We continue to believe that this measure is a well balanced one which, in addition to modernizing the 1968 electronic surveillance law, also benefits both law enforcement and individual privacy by clarifying many aspects of this
highly complex area of the law. As the 99th Congress is rapidly drawing to a close, we sincerely hope that the Senate
will act on S. 2575 at an early date.
We would deeply appreciate your consideration of S. 2575 and, if possible, your formal co-sponsorship of the bill.
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Having your name on the bill would, we believe, be most helpful in efforts to process this important legislation this
year.
Sincerely,
JOHN R. BOLTON,
Assistant Attorney General.
VII. COST ESTIMATE
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, DC, September 23, 1986.
Hon. STROM THURMOND,
Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC.
DEAR MR. CHAIRMAN: The Congressional Budget Office has reviewed S. 2575, the Electronic Communications
Privacy Act of 1986, as ordered reported by the Senate Committee on the Judiciary, September 19, 1986. CBO estimates that enactment of this legislation would result in no significant cost to the federal government and in no cost to
state or local governments.
S. 2575 would make a number of amendments to Title 18 of the U.S. Code concerning access to electric communications. Title I of the bill would establish penalties for the unlawful interception or disclosure of electronic communications, provide for the recovery of civil damages for persons whose communications are intercepted, disclosed
or used in violation of this provision, and modify procedures for government interception of communications. Title II
would create specific penalties for unlawful access to stored wire and electronic communications, while Title III
would establish a general prohibition on the use of pen registers. These titles would mandate specific procedures for
access to stored communications and use of pen registers by government entities, and Title II would allow for civil
actions.
**3606 *52 S. 2575 would require government entities to compensate private parties assembling or providing information concerning stored electronic communications, or assisting in the installation and use of a pen register.
Because such compensation is currently provided in Department of Justice (DOJ) investigations, CBO does not expect
the these provisions would result in any significant additional cost to the federal government.
Based on information from the DOJ, we do not expect that enactment of this bill would result in a significant change
in the government's law enforcement practices or expenditures. S. 2575 would specifically authorize law enforcement
efforts the DOJ is currently undertaking with other authority.
If you wish further details on this estimate, we will be pleased to provide them.
With best wishes,
Sincerely,
JAMES BLUM
(for Rudolph G. Penner, Director).
VIII. REGULATORY IMPACT STATEMENT
In compliance with paragraph 11(b) of Rule XXVI of the Standing Rules of the Senate, the Committee has concluded that no significant additional regulatory impact would be incurred in carrying out the provisions of this legis-
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lation. After due consideration, the Committee concluded that the changes in existing law contained in the bill will not
increase or diminish any present regulatory responsibilities of the U.S. Department of Justice or any other department
or agency affected by the legislation.
IX. VOTE OF COMMITTEE
On August 12, 1986, the Subcommittee on Patents, Copyrights, and Trademarks, with a quorum present, reported S.
2575, with an amendment in the nature of a substitute, to the Committee on the Judiciary by voice vote. On September
19, 1986, the Judiciary Committee adopted two further changes in the bill as reported by the Subcommittee. The
Judiciary Committee, with a quorum present, and without objection heard, approved the amendment in the nature of a
substitute. The Committee then favorably reported S. 2575, as amended, by unanimous consent.
1. 98 S.Ct. 364, 54 L.Ed.2d 376.
2. These new forms of telecommunications and computer technology are described in the Glossary below.
3. 96 S.Ct. 1619, 48 L.Ed.2d 71.
4 Multiplexing refers to the transmission of communications by means of modulation techniques whose essential
parameters have been withheld from the public.
S. Rep. No. 541, 99TH Cong., 2ND Sess. 1986, 1986 U.S.C.C.A.N. 3555, 1986 WL 31929, S. REP. 99-541
(Leg.Hist.)
END OF DOCUMENT
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