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Facebook Outage: The Fall Of A Titan?
(Liabilities and Outcomes)
By Charbel El Kareh – Ph.D.
The Facebook outage has affected millions of people all over the world, and left lots of concerns on socio-economic matters; and most importantly on corporations relying solely on Facebook authentication, users’ activities, and corporate advertising.
The outage of October the 4th, 2021 lasted for more than six hours; and it is considered the second massive outage affecting Facebook since 2019 when it lasted around 24 hours.
Facebook engineers explained in a blog post that the outage is related to « configuration changes on the backbone routers that coordinate network traffic between [Facebook] data centers, caused issues that interrupted this communication. This disruption to network traffic had a cascading effect on the way [Facebook] data centers communicate, bringing our services to a halt » (2).
This explanation seems not to be persuasive for many observers, especially in terms of timing and Facebook crucial data processing violations spotted during the last two years. Cloudflare senior vice president Dane Knecht noted that « Facebook’s border gateway protocol routes were suddenly withdrawn from the internet. While some have speculated about hackers, or an internal protest over the whistleblower testifying before Congress, Facebook has blamed the problem on a bug that occurred during routine maintenance » (3).
Nevertheless, the US government seems more inclined to tolerate Facebook desecrations, despite the long list of violations, pursuant to the 1st Amendment of the US Constitution, where « Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances » (4).
It is primordial to highlight the latest Facebook engagements like the whistleblower and the “attack on the congress”, and more generally in prioritizing corporate profits over users’ privacy and data processing ethics.
The real problem is related to Facebook's enormous domination over the market, and this is triggering many concerns in all directions. What happens to corporate accounts if Facebook platforms disappear? Does the US government have a strategy to replace Facebook or it is more disposed to regulate it?
The mere coincidence lapped with a testimony given by Frances Haugen, Facebook former product manager, before the Senate subcommittee on October the 5th, in which she pointed out major Facebook violations in terms of human rights like (5):
- Harm to teenagers
- Allowing misinformation
- Lack of transparency
- The urgency of congress intervention to regulate Facebook platforms
Accordingly, are US lawmakers ready to interfere and regulate Mark’s platforms? Is there an implicit plea to squash or control the Titan gradually? The matter seems to be aggravating, especially in terms of Mark Zuckerberg's wobbly relationship with the lawmakers.
In fact, a balance should be done at some point between the first amendment rights, the users’ right to data, and the corporate reliance on the platforms.
In terms of liabilities, it can be analyzed from two points of view: the user's perspectives and the corporate perspectives.
First, Facebook services are rendered to users for free in return for terms acceptance a priori. As a result, Facebook users' right to use the platform is conditional to personal data processing. It is an unconditional, open sinequanon license to store, process, and market the “Personal Data Base”. It is an adhesion contract or a boilerplate contract in which Facebook, holds the stronger bargaining power, and the user holds the weaker bargaining power, who is in need of Facebook services. Today many people cannot survive without the “Platforms”, it becomes a need that comes with a price: Data Processing in which Facebook is always a winner.
For instance, in Young, the plaintiff sued Facebook following the termination of her user account alleging violation of her First and Fourteenth Amendment rights, breach of contract, breach of the implied covenant of good faith and fair dealing, negligence, and fraud. The U.S. District Court of Northern California handling the case dismissed the case without leave to amend, on the basis that Facebook is a private entity, and Young shows no relationship between Facebook's government contracts and the particular actions that she alleges violated her rights; in addition that Facebook has no affirmative duty toward its users (6). Young v. Facebook, Inc., 790 F. Supp. 2d 1110, US Dist. N.C 2010.
Second, in terms of corporate matters, Facebook uses the processed personal data to market and to advertise in return for a fee. It is an agreement between Facebook and parties requesting Facebook ads. Therefore, when Facebook faces outages not related to Acts of God or force majeure, it must be held liable for contract breachs. Parties contracted with Facebook can seek monetary damages for breach of contract.
Finally, in terms of liability, it is important to mention that Facebook has a limitation of liability clause in its terms and conditions. It stipulates clearly that Facebook provided its services as-is with no guarantees that they will be safe, secure, or error-free, or that they will function without disruptions, delays, or imperfections. Also, Facebook disclaims all warranties, whether express or implied, including the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. It is mentioned that under no circumstance Facebook is liable for any lost profits, revenues, information, or data, or consequential, special, indirect, exemplary, punitive, or incidental damages arising out of or related to these Terms or the Facebook Products. Facebook aggregate liability arising out of or relating to Facebook Terms will not exceed the greater of $100 or the amount paid the Facebook in the past twelve months (7).
But is this disclaimer valid? Can Facebook disclaim express warranties in services agreement, by a very conspicuous language?
Facebook Inc. is a company governed by US Federal laws. Also, as a service provider, Facebook is governed by the contract common law rather than the UCC. In a contract, there must exist considerations between the parties, a real bargain for a deal, a quid pro quo between the parties. Thus, a US court cannot enforce a deal if it does not look like a real bargain. Here, Facebook is offering Ad services and offerrees are paying a certain amount in return. As a result, it is most likely that a real bargain exists between the parties. As such, an express warranty cannot be disclaimed by conspicuous language, especially when it contains well-defined services. Facebook is committed to offering those Ads. In particular, any promise, affirmation, description, or sample that is part of the basis of the bargain is an express warranty, unless it is merely the seller’s opinion or commendation of the value of the services. In addition, most users are not aware of this conspicuous disclaimer language. Therefore, the Facebook disclaimer is most likely not be enforced toward users.
Now as for the damages limitations to 100$, it is naïve somehow to see how Facebook treats its customers. This clause is seen as a shallow way of handing in contractual liabilities. Companies advertising with Facebook, are spending millions of dollars yearly on Ads. On the other hand, millions of corporations are using Facebook accounts for user’s accounts login, as a sole method of authentication in their web, and this cannot be measured by a 100$ or bargain for/paid amount during the last year.
In sum, the lesson must be learned, especially for corporate users relying on Facebook authentication. Those parties must seek alternatives, although the situation seems to be fragile, in terms of outage causes, potential insiders’ Trojans, lawmakers’ aspirations toward Facebook behaviors, and the need to « contain the Titan ».
1. Image Credit: https://county17.com/2021/10/04/c17-social-down-due-to-ongoing-facebook-outage/
2. https://engineering.fb.com/2021/10/04/networking-traffic/outage/.
3. https://www.theverge.com/2021/10/4/22708989/instagram-facebook-outage-messenger-whatsapp-error.
4. First Amendment of the US Constitution: https://www.law.cornell.edu/constitution/first_amendment
6. Young v. Facebook, Inc., 790 F. Supp. 2d 1110, https://scholar.google.com/scholar_case?case=14196698777849520612&q=1.%09Young+v.+Facebook,+Inc.,+790+F.+Supp.+2d+1110&hl=en&as_sdt=6,37.