Microsoft and Facebook start intervening in private conversations. How long until they beep out unwanted parts in real time?

For the first time, a telecommunications provider is having opinions on the content of your conversations. This is unprecedented and a sharp deviation from all previous history. How long until digital phonecalls start beeping out unwanted topics?

The series on “Analog Equivalent Privacy Rights” had barely finished until the next piece of WTF hit: Microsoft is going to start policing what you say and how you say it in Skype and XBox one-on-one conversations. This is interesting from a legal standpoint, and extremely alarming from a liberty standpoint.

The reasons it’s interesting from a legal perspective is because there’s this concept of Common Carrier in the United States, which has a European equivalent in the Mere Conduit principle. It’s a quid-pro-quo between legislators and telecoms companies: As long as, and only as long as the telco companies don’t interfere with the conversations on the line, then they are also completely shielded from any liability for the conversations on the line.

The minute they start interfering, they are no longer shielded from liability. Therefore, you would think it would be in their interest to never, ever, interfere with the conversations held on the line.

This is where Microsoft enters a gray area with punishing people after the fact, based on the conversations that happened on their network. (Note how even this would still be completely unthinkable for an analog telecom provider of the Plain Old Telephone System, or POTS.) You can argue that they’re technically not interfering with the conversation when it happens, and therefore may not technically be in violation of the letter of the law, but they’re certainly well into a gray area with regards to the spirit of this law, as people will self-censor to avoid such interference.

(Let’s get a sidetrack out of the way here: crimes can and do happen over phone lines, such as harassment and threats. When they do, it’s the Police that handle them. The phone company, if it wants a shield from liability, does not get to set an additional set of rules over and above what the Police handle. Nobody’s contesting that the Police should enforce laws against criminal behavior in phonecalls, and that’s not what this is about.)

It could be argued that Facebook is already doing this but a step worse: Facebook is looking through your personal chats and punishing you for anything that doesn’t fit their pre-conceived notion of a universal moral code (which is of course not universal at all, but strictly American; if Facebook had been a German company, for example, nudity and sex would have been considered just a random expression, but hate speech would be far harsher punished.) If something in your personal correspondence doesn’t sit well with Facebook, they can and will send you into social exile.

Oh, and Facebook is using socially acceptable reasons to justify this, such as “we’re trying to catch child abuse imagery”. However, that would be a Police matter, as per the sidetrack above; Facebook is punishing their users for completely legal speech, that may be completely inoffensive and consensual; things that Facebook just doesn’t want people to be talking about. As a key example, a Swedish person was asked in private messages for a publisher of erotic fiction, and responded helpfully to the question in the same private channel, for which he was shut off from Facebook for 30 days.

As for public messages, Facebook has gone one step further and prevented them from being posted at all, which would be much closer to the bullseye of real-time interference with communications. The archetypal example of this was when Facebook prevented links to The Pirate Bay to be shared on Facebook, which ironically opened Facebook up for litigation, as it would have lost its Common Carrier status in that second; I suspect the intent was the very opposite and intended as a legal CYA maneuver.

Of course, from a privacy perspective, this is extremely alarming. While you can argue that they have a right to do whatever they want on their own platforms, society as a whole suffers immeasurably if we can’t have consensual conversations.

The final question would therefore be when these companies, seeing how they’re already at least on the hedge for full-on policing the conversations of their users, start beeping out unwanted content in realtime, or insert a third-person voice with a warning whenever it takes place.

Sadly, I believe it’s just about 20 minutes into the future (as in, just around the corner).

Privacy remains your own responsibility. Use encrypted voice channels.