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Facebook Marketing = Go to Jail?

According to legal analysts, there is a law being passed which could in theory make many types of affiliate marketing a federal felony. In theory, many types of marketing, which don’t fall under the terms and conditions of sites and social networks, could be prosecuted under the Department of Justice, for as much as three years in federal prison for each instance.

The issue here has to do with the Computer Fraud and Abuse act of 1986, which was originally made to prosecute and convict hackers, has been expanded over the years to include almost any type of “unauthorized access.” While this is currently just a misdemeanor, and the DOJ ignores these cases unless they are in combination with “real” crimes, that might be changing. Well, congress is about to expand this law to make it a felony, and make any “excess unauthorized access” a federal felony.

Pushing for congress to enact this is companies like Microsoft and… well, Facebook.  The problem with this is that this law will make it ILLEGAL to do anything that is in violation of the terms and condition when you sign up for example Facebook. That means if you are one of those marketers who use Facebook to promote your business, and the terms and conditions prohibits you from posting commercial messages on other people’s pages, or perhaps sending out commercial messages via the message function, you could be arrested for “excess unauthorized access.”

Think this is not possible? Well, in 2009 it turns out that the DOJ actually did prosecute a woman who violated the Terms of Service of Myspace for using a “fake photo” on her profile. Why was this illegal? Because the TOS required her to only use real photos of her.

You should read the Facebook TOS, there are several things that you could be prosecuted for.

For example:

You will not engage in unlawful multi-level marketing, such as a pyramid scheme, on Facebook.

In theory, if you ever mention a MLM product on Facebook, you could now go to jail. If you mention it 10 times, you could spend 30 years in prison?

You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission.

You want to make another profile for your business, and one for your personal use to keep people separate? Well, that’s illegal.

You will not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law.

Want to promote a free gift card product, go to jail if you don’t have rights to the TM. Just some of the examples. In theory, many, many CPA networks are violating the law when they use facebook to promote their network in any fashion, or an offer and do not use the facebook advertising system.

You will not send or otherwise post unauthorized commercial communications (such as spam) on Facebook.

What is Spam? What is unauthorized? This means if you use facebook to market any product, or even reach out to a potential customer, is that illegal? Do we want to criminalize this?

What’s even worse, if your company engages in unauthorized marketing on any forum, any social network or any site (that means even comment spam, which I hate), you could be also prosecuted as organized criminals under the changes in the law.

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Pace Lattin

Pace Lattin is one of the top experts in interactive advertising, affiliate marketing. Pace Lattin is known for his dedication to ethics in marketing, and focus on compliance and fraud in the industry, and has written numerous articles for publications from MediaPost, ClickZ, ADOTAS and his own blogs.

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  1. Hello Pace. I take it this pertains to affilite marketers using black hat tactics like apps, pop ups and other unsolicted advertising?

    1. Read the article 🙂 No, it’s not just blackhat tactics. It’s anything that violates their TOS in theory. I gave some examples — but it’s also just signing up to facebook and using two accounts. A lot of people have more than one account, sometimes to keep their professional life separate from their personal life…

    2. NO, Ivin, it pertains to ANY use someone decides breaks a TOS. To anyone who thinks I am “too serious” or wonders why I distrust multi-national corporations or questions why I believe most laws are intended to keep us from succeeding or even make us all criminals maybe what is in this post can help you understand why.

  2. This is an interesting legal quandary, although it does seem to affect those who are already on the questionable side of the law. For example, it doesn’t prevent promoting legal MLM programs, just the ones that are unlawful. As it were, most of the TOS sections that you cite refer to behavior where someone is already committing some other kind of crime.

    1. Read the TOS, there are many more weird ones, the TOS for all the things is long, hard read 🙂 One example I didn’t mention was that you must gain permission of someone to tag them on a photo. Also, the “You will not provide any false personal information on Facebook” means that if you use a pseudonym, pen name, or perhaps even lie about your weight or education, you could go to jail?

      The real question is do we want to criminalize stuff that should be a civil lawsuit, if anything?

      1. Those are really interesting points. As far as providing false information, the key would be if you knew the information false, which would be required to prove any crime.

        The trickier issue are where you do things such as using a pseudonym. Is it false information to use a pen name or pseudonym? It may not be your legal name, but it is a true representation of your online persona.

        But your overall point is taken, we are gradually moving towards a society that criminalizes trivial things. I understand the original intent behind some of these laws to prevent fraud and/or victimization of other people, but we are now taking these issues to extremes.

        The other interesting aspect is that the government is turning these private TOS rules into law, which runs into an interesting conflict with privacy interests. See, it’s ok for facebook to limit one’s ability to stay private, but it’s another entirely for the government to turn those same restrictions into law. Now you have the government infringing on privacy, which creates some constitutional problems.

  3. Crazy, crazy, crazy. That’s like saying to a house guest, “Wear shoes on my carpet and it’s a felony”. I hate when the .gov get’s involved in things they have no business in.

  4. Another reason not to use facebook. In my opinion, it is a sinking ship. Not as quickly as myspace sunk, but it on its way out.

  5. This is a area we should all look at as a warning to our honesty, I have had a personal profile on Facebook for a long time. I promote my small business web design company on it. On the same profile I have a “page” for the company and another one for The “Special Needs For Children Foundation. Is this violating any TOS.
    I don’t think Facebook is going anywhere. They seem to know what there doing and our growing elsewhere if not in the U.S….

  6. Facebook is the ‘hotspot’ for marketers right now, just as Twitter was trending last year. The next one in line is the new Google+ and I am sure there will be more popping up this year. Any new network or social site that can bring in millions of visitors will be a target for marketers of all types (Good and Bad).

    I think it is really up to us, as online entrepreneurs, to clean up our own backyards “so to speak” by calling out the scammers whenever we can and ONLY when we have verifiable proof.

    There is a very popular forum that is currently dealing with a group of members that purposely attempt to destroy any decent products being promoted on it to try and clear the way for their garbage.

  7. Based on these Facebook rules, Mark Twain would have been in violation for having a Facebook page. And Beyonce is in trouble for having a Sasha Fierce page too?

  8. You could at least report a bit more accurately!
    ” You will not engage in unlawful multi-level marketing, such as a pyramid scheme, on Facebook.

    In theory, if you ever mention a MLM product on Facebook, you could now go to jail. If you mention it 10 times, you could spend 30 years in prison?”

    Last time I checked, MLM was NOT “unlawful multi-level marketing” so why sensationalise your commentary to make it seem as if that’s what is being referred to? Ponzi schemes are illegal, promoting them should also be illegal – so why not just say that?

    1. The article is obviously addressing beyond MLM marketing. That being said, they obviously singled out MLM as being illegal, “such as pyramid schemes” but not limited to that. Remember lawyers wrote this, and all illegal actions are already a violation of their T&C (and again, illegal) so why point this out?

  9. Thanks for this great article I totally agree with you. I hate it when people use facebook or other social networks for marketing use. I hope you post more great articles thanks.

  10. All of this is very interesting, but how would these laws apply to those living outside the US? Many of the most prolific spammers, scammers, hackers, etc. live in other countries and could care less about some US law.
    Although I’m an American, I live in Central America and use a wireless 3.5G modem on a laptop, posting from the top of a mountain, how would they ever find and prosecute people like me? Not that I would ever spam anyone, just wondering…….

  11. The TOS of my website is if you read any portion of it you are committing an illegal act. I’ve sent the justice department numerous request to investigate but so far no arrests. 🙁

  12. Need to see how strongly this can be enforced if implemented. There can be many things which can come in under the scanner, so finger crossed for this one…

  13. These are all very accurate points, however I don’t think the terms of service is what matters. Facebook can create any arbitrary terms of service it wants, it is well within its rights to do so. That doesn’t mean breaking them is a felony. Facebook could create a TOS agreement that required you to only post pictures with a red shirt on, that doesn’t mean you will go to jail if you post one with a green shirt.

    Many websites have TOS agreements that prohibit you from making racist or cruel statements, but those are still covered under your first amendment rights. You won’t be prosecuted, but you can have you account deleted.

    I think the issue goes to what terms and conditions you are referring to. The Myspace case you mentioned demonstrates the possibility she may have intended to commit fraud. Regardless of her intent, using someone else’s photo would be seen at a minimum as copyright infringement and possibly identity theft. The TOS may not have been the only thing that came into play there.

    Lots of people break Facebook’s TOS by showing risque pictures of themselves and get their accounts deleted. As long as they are their own pictures and they are consenting adults, they have not broken any law. The issue here is that Facebook has a duty to protect people from scams. The DOJ couldn’t care less about Facebook’s terms of service in and of themselves. They want to know that measures are being taken to demonstrate that measures are being taken to protect the users of these sites, which is why they will probably crack down on some behavior over others.

  14. All very valid points here.
    I would venture a guess that nearly everyone has broken the TOS on Facebook. I for one would have to admit that I do not read the TOS on many sites at all.
    Just try to be kind to others and do not do anything that you would not want done to you,you should be OK

    I would love to see a follow-up of this article and see what happens

    Thanks for the great post

  15. Absolutely stupid come on I use fake information on my FB page to protect myself from those who might seek to steal information.

  16. I use fake birthday ,fake area I live it’s a wise thing to do.Some people even place their phone number ?

  17. Well, social networking sites are mostly used for personal purpose in earlier days but now they are used for business. I know its a good way to get much exposure for your business but not a right way.

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