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As of October 2018, more than one billion people are active on Facebook. People worldwide use Facebook to keep in touch with family, organise university events, and post pictures of semesters abroad, vacations, and parties to evoke a jealous reaction from their peers on the other side of the screen. Facebook, brings the world together, shrinking boundaries and providing an instantaneously source of communication. The Messenger application, owned by Facebook, allows users to text and call each other by using the internet rather than previous channels of telecommunication. This has not only proved cheaper for users, allowing users to call each other globally free of charge over an internet connection, but it has also blurred the line between telecommunication laws and application laws. Though inherently good, Facebook’s stance on these laws can sometimes mean that they are providing a channel of communication for terrorists groups and gangs.
In August 2018 Facebook was brought to court by the Federal Bureau of Investigation (FBI) in the United States. The FBI wanted to get access to Facebook Messenger calls in order to track the activity of a gang in the Eastern District of California, the Mara Salvatruncha or more commonly known as the MS-13. The MS-13 is a historically violence oriented gang originating in the 1980s in Los Angeles. The gang later spread to many parts of the U.S, Canada, and Central America. With extreme pressure from the Trump administration, the FBI was claiming it had the authority to listen to these phone calls for national security reasons such as preventing drugs and human trafficking across the U.S and Mexico. Facebook refused to comply with the FBI, claiming that under the Wiretap Act, they were not obligated to release their users’ private information. This uncharted territory of internet telecommunication sparked a lawsuit that has the potential to change the way the world views modern communication.
To understand the weight of this issue, it is important to explore the boundaries of the Wiretap Act. The Wiretap act states that all telecommunication companies are obligated to encrypt their devices so that it is possible for law enforcement to be granted access to call histories and text messages. Facebooks main argument centred around the claim that they are not a telecommunication network. Facebook is and always has been an application that uses the internet to connect its users. The Wiretap Act involves a wire encryption over public cell towers that Facebook does not use. While Facebook perceived their claim as a “knock-down-drag-out” argument, the legality of their stance is not this simple.
Facebook is labelling itself as an application, but at the same time playing the role of a telecommunication system. Having the capability to make phone call and text individuals like one would do on a phone means Facebook is treading a fine line. The question turns to whether the ‘Wiretap Act’ is defective in its name. One of Facebook’s biggest arguments in the court case was that Facebook is not a telecommunication network, it is wire free. This either (1) proves a difference between applications such as Messenger and normal cellular phone calls or text, or (2) begs for a revised name for the security act. The judge seemed to think Facebook does not qualify as a telecommunication network, choosing the latter of the two options and allowing Facebook to walk out free of obligation to the FBI. However, though the judge chose to let Facebook walk, the world is still undecided.
There are many conservatives who quake in their boots at the thought of the “big brother government” obtaining access to all text, calls, and pictures sent from a mobile device or an application like Facebook. However, as intense and overbearing as this “invasion of privacy” might seem, there might be some merit in having this government oversight. Having access to call histories, agencies like the FBI would have the potential to prevent acts of terror or major crimes from occurring. This means that, if the U.S District Court Judge in the Frenso Facebook lawsuit had decided to grant the FBI access to the Messenger call histories, the FBI could have had the potential to save people from murders, sexual assaults, and even human trafficking. Many people like Deputy Attorney General Rod J. Rosenstein charge Facebook with the bias of focusing on making money versus doing what is best for the national security of the U.S. To illustrate Rosenstein passionately stated in a speech in October 2018, “Warrant-proof encryption is a serious problem. Technology companies almost certainly will not develop responsible encryption if left to their own devices. They are in the business of selling products and making money…We are in the business of preventing crime and saving lives.” While Rosenstein makes a very strong argument, the course of action he is endorsing also has its drawbacks. Though lives would be saved from this government intervention, a level of civil liberty would be unquestionably violated.
Opponents to the Wiretap Act see this government oversight has an undeniable violation of privacy. To feel like the “big brother government” is listening to your every phone call, reading your every text, and scanning your every photo seems a bit daunting. Many argue it shows a lack of trust, sending the message that the government does not trust its citizens and therefore must monitor their every move. While some citizens, in the vein of Thomas Hobbes’ philosophy, argue they are willing to forfeit certain civil liberties for the greater good of the country, others find something morally unsettling about the government having access to personal vessels of communication.
The Facebook Messenger lawsuit has provided not only a debate over national security precautions, but also a debate over the conceptual definition of telecommunication. Facebook is not the first technology company to be charged with disobeying federal law and refusing to divulge private information. Apple was also similarly charged in last year’s court case regarding the San Bernardino shooting. The FBI tried to convince Apple to unlock the iPhone of the suspected shooter so that they could obtain critical information. Apple refused on the grounds of private property laws. Facebook Messenger is not the first of its time and it will certainly not be the last court case regarding the threat of technology linked to national security. As a society we must decide whether we should forfeit our right to privacy for the greater good, or maintain our level of private control. The answer to this problem of national security is not a straight forward one, but a current topic that should not be brushed aside simply because the answer not only involves politics and social rights, but also involves changing our conceptualisation of modern communication as we know it.