Playing All the Wrong Cards: Asserting Privacy Rights to User Information Submitted to Social Networks
A. Contracting for Privacy in a Public Forum
Modern day law and supernatural legend rarely intersect. This does not mean correctly understanding a legal issue is immune from aid rendered by such stories. For example, Goethe’s Faust provides an illustrative parallel to standardized agreements, or adhesion contracts. In Faust, the protagonist seeks a pure moment of earthly happiness.  He bargains with the devil, named Mephistopheles, trading his soul for assistance in achieving that moment. The underlying current in the Faust dealing can be described as a deal with the devil. As legend would have it, a person who agrees to this type of deal rarely understands the contractual implications until it is too late, and something of immeasurable value is taken through unequal bargaining. Much like deals with the devil, the non-contract creating party to an adhesion contract, manifested many times in online terms and conditions, is typically considered the weaker party to the agreement.  The perception of inequality in an adhesion contracts stems from an implicit assurance the benefit to preparer’s interest is served, whether or not the other party is aware of it. Adhesion contracts, while popular with credit card agencies and insurance companies, now have an affect on the privacy of social interaction.
Social network users have begun to exist in a dual state. First, they exist as humans have for years. They are known by a name, conduct interpersonal communication and relationships, and limit the extent of those relationships based on what they allow the inquiring party to know. The other state of existence is a digital persona. This persona exists in many ways like the physical. Individuals are known by a name, conduct relationships, and communicate with others. However, the digital persona is not subject to the same limitations, or expectations, of privacy. A firestorm of concerns over integrity of privacy safeguards online has caused users to question the actions of social networks in the protection of their information. The digital persona is very much in its infancy, which only amplifies the lack of clarity in the public’s understanding of both its benefits and flaws. On one hand, social networks argue users volitionally submit private information in an effort to create a fuller digital persona available to the person’s social circle. However, claims of privacy invasion have lead users to question what privacy rights they realistically hold. To be clear, any privacy and information right is governed by the terms and conditions assented to by both parties.
Very few individuals understood the consequences of voluntarily giving information to a social network. Employers, educators, government’s agencies, officials, and lawyers are only a small subsection of individuals who regularly seek access to digital personas in an effort to obtain a better understanding of the person behind it. This information is seldom investigated for reasons other than to check the veracity of a claim or the integrity of a user’s character. This makes a digital persona a very dangerous weapon when uninvited parties gain access. Outcries against impermissible privacy invasion by parties outside a person’s social circle have reached a fever pitch. In response, social networks, including Facebook, have continually revised their privacy policies and politicians legislate both for and against the security of the individual’s digital persona. Left in the ashes of this struggle is the integrity of online social privacy, which has been all but destroyed.
B. Understanding Realistic Expectation of Privacy
Excluding a prospective members’ personal understanding of online privacy, the most accurate reflection of privacy expectations are located in the terms and conditions of the largest social media network in the world. Unfortunately, Facebook’s terms and conditions have one important thing in common with those of most other companies—only a small amount of users (read contracting parties) actually view and understand the document. Statistically, this means many readers of this Article will not have read the conditions they assented to when signing up for services provided by a social network, much less understand how it governs their content. This brief overview is offered with a focus on privacy, as any other terms or conditions are beyond the scope of this article.
Facebook, on a cursory overview, is not a company who seems considerably interested in the restriction of information. A review of its company principles, elicit promotion of ideologies such as “Freedom to Share and Connect; Free Flow of Information; Social Value; Open Platforms and Standards; Common Welfare; and One World” as six of the ten published. While not all directly related to privacy, these principles do generally outline a penchant for openness. Nevertheless, logic demands no social network would exist if it abusively shared information to the user’s detriment. Therefore, Facebook proffers the “Ownership and Control of Information Principle” which states
“People should own their information. They should have the freedom to share it with anyone they want and take it with them anywhere they want, including removing it from the Facebook Service. People should the freedom to decide with whom they will share their information, and to set privacy controls to protect those choices. Those controls, however, are not capable of limiting how those who have received information may use it, particularly outside the Facebook Service.
These conflicting principles are difficult to condense. Facebook seems to talk out of both sides of its mouth since it is a company that supports openness while valuing privacy. The important question is how these privacy ideals translate to the contract which governs electronic profiles. The answer requires putting pieces of the terms of service together, much like a puzzle.
First, user information must be defined. Facebook information can be loosely placed in three categories. The first is openly public and contains information like name, email address, networks, and profile picture. The second category is limited by the user to a desired audience, and contains information such as status updates, photos (besides the public profile photo), and more detailed personal information the user chooses to share. The last category contains private messages and chat logs that are not shared with the public or the user’s friend base. While Facebook postulates that the user is in complete control and ownership of their information, a caveat exists. This ownership is divested by an interest granted to the social network when creating a profile. This term dictates
“For (facts and other information about you, including actions taken by users and non-users who interact with Facebook…and anything you or other users post on Facebook) 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, copy, publicly perform or display, distribute, modify, translate, and create derivative works of ) any IP content that you post on or in connection with Facebook.
The rights held by Facebook terminate when the user content is deleted, an act not as simple as it seems on its face. The content must be deleted from the system entirely. This requires the creator and every user who has a connection with the content, be it tagged in the picture etc., go through the process of deleting the content. Absent a full termination from the website system, the rights held by Facebook continue into perpetuity regardless of the content creator’s intentions.
C. Attempting to Modify Agreements to Regain Privacy Rights
It can be logically assumed that the public would not assert impotent legal protections. Moreover, given effective alternatives, they would not employ legal protections contained in modern day chain mail. One such chain mail is illustrative of a supposed remedy and has caused news agencies to report on the reliability of the claim. It states
Facebook is now a publicly traded entity. It is recommended that all members post a notice similar to this, or if you prefer you can copy and paste this release. If you do not publish such a statement at least once, then you are indirectly allowing public use of such items as your photos and information contained in status updates. PRIVACY NOTED: Warning – any person and/or institution and/or Agent and/or Agency of any governmental structure including but not limited to the United States federal Government also using or monitoring this website or any of its associated sites DO NOT have my permission to use any of my profile information nor any of the content contained herein including, but not limited to my photos, and/or the comments made about my photos or any other “picture” of art posted on my profile. You are hereby notified that it is strictly prohibited to disclose, copy, distribute or take any other action against me with regard to this profile and the contents herein. The previous prohibitions also apply to your employees, agents, students, or any personnel under your direction or control. The contents of this profile are private and confidential information and sensitive. The violation of my personal privacy is punishable by law. UCC 1-103 1-308.
If this is, in fact, ineffective, then two questions must be answered. First, why is it ineffective and who would initially assert it as applicable?
1. User Posted Content Is Ineffective at Altering Contractual Agreements
Users have posted the Status in an effort to revise applicable electronic discovery law and Facebook’s terms and conditions. The users intend to deny persons, agencies, agents, and institutions from access to their information. The listed parties are seen as less than desirable intruders since, from an institutional and governmental standpoint, the information contained in a user’s profile represents a vast wealth that is potentially relevant and damaging. Legal professionals have relied on Facebook as part of the discovery process. When integral to a case, subpoenas have been issued allowing government endorsed discovery of information in all three privacy levels discussed above. The Status aims to circumvent these intrusions of privacy by citing Uniform Commercial Code sections 1-103 and 1-308. The most glaringly destructive argument against the effectiveness of the Status is humorously also contained in the UCC. The UCC generally regulates itself as applicable only to goods. While possible, it remains unlikely courts will perceive Facebook as a movable item within the UCC definition of a good. Thus, at its base level, the Status asserts inapplicable law.
For sake of argument, assuming the UCC will apply, 1-103 is inapplicable because it only holds unless other provisions of the UCC apply, the common law will supplement. This in no way changes the applicability of Facebook’s privacy provisions. 1-308 on the other hand “expressly recognizes the right of a party to reserve rights against the other contracting party so as to not be held to have waived rights to any claim or remedy arising from the conduct or breach of the other party.” On its face, this provision may seem effective, allowing a party to reserve the right to keep others from intruding on their privacy. Yet, there exists more than a few problems with its applicability. For this UCC provision to apply, there assumes the existence of a valid contract between two parties. Consequently, any effectiveness is limited to the other contracting party, in this case Facebook, not the vast amount of parties proffered by the drafter of the Status. Lastly, UCC 1-308 cannot be used to strip rights to which another party is entitled to within the contract. When signing the terms and conditions, the user assents to Facebook’s terms in existence at the time of the contract. Currently, Facebook holds the right to “disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matter) if [it has] a good faith belief that the response is required by law.” Since UCC 1-308 does not allow the destruction of the other party’s rights, and Facebook holds the right to disclose necessary information, the provision is inapplicable to any intended restriction of information discovery.
As a final point, Facebook inserted a clause at the end of its terms and conditions stating “[t]his statement makes up the entire agreement between the parties regarding Facebook….” First, it is improbable that a user status posted, particularly one Facebook has no particular reason to be aware of, would be allowed by the courts to change the contractual relationship between the user and the company. Second, any additional term would require assent by Facebook. As of yet, there has been no reported case in which Facebook Inc. has agreed to the amendment of its contract by any user posting the above statement.
2. A Long History of Inventing Legal Rights
Statistically, users are disinclined to read and understand governing terms and conditions; it is then less likely they will research the effectiveness and basis for the Status. Interestingly, the history of this assertion can trace itself to a pseudo-legal theory that is centuries old. Indicative because of the inclusion of UCC provision 1-308, it is likely the Status was either created, or in some way influenced by a group of individuals called “sovereign citizens” (hereinafter Sovereigns).
A concrete history of the group is unavailable, however, a theory of origination is that people became Sovereigns when the King of England granted U.S. land to all citizens following the resolution of the American Revolution. The theory centers on the premise that, since that time, the federal government has intentionally stripped citizens of their sovereignty. Some believe this is done by the Fourteenth Amendment, others by entering into a contractual relationship with the government by registering for a social security number or receiving mail that contains a zip code on the envelope. One of the more extreme versions accuses the government of using United States citizens as collateral for its national debt. The citizens right to sovereignty are held by a “strawman” representing each person and serves as a currency replacement for the previously utilized gold standard. Individuals must file a lien against the “strawman” to divest the government’s interest in their personal sovereignty.
The Sovereigns generally do not hold one set of beliefs, and estimates conservatively hold there are approximately 100,000 true believers in the doctrine. This estimate does not include those who assert versions of the belief in the face of legal conflict. Assertions of sovereignty occur in a range of legal matters ranging from criminal trials to civil maters, and are typical in tax and bankruptcy proceedings. Association with the belief is not limited to the fringes of society. Wealthy business professionals have asserted the immunity to federal jurisdiction. Even actor Wesley Snipes included the belief as part of his argument against his recent legal tax troubles.
A relevant belief of Sovereigns to this issue is that signing documents with the inclusion of UCC provisions, namely UCC 1-308 or 1-207, allows them to resist jurisdiction to the federal government. By signing a government registered name to a document, the person submits to federal jurisdiction. By changing the way in which one signs a document, they are reserving their rights and are therefore not accountable to law made by the federal government. Presumably, this includes information disclosure and contract law. The inclusion of the UCC provision in the Status evinces sovereign inspiration. But, as with many of the group’s attempts at skirting jurisdiction, this Status cannot be described in any other way besides utterly meritless.
D. A Privacy Remainder
All hope for digital privacy is not lost. Entertainingly, the illustrative benefit of Goethe’s Faust is not exhausted. As is typical with a Faustian legend, there comes a time when the devil comes to retrieve his end of the bargain, usually the soul. However, in Faust, his efforts were thwarted because the protagonist finds spiritual happiness in the moment he desires to live in forever, not earthly happiness as previously agreed. Since the contract was for earthly pleasure to inspire the moment of happiness, the contract is broken and God (perhaps acting as the metaphorical lawyer) claims the soul of Faust is not forfeited to the devil. It seems even supernatural adhesion contracts, much like their legal counterparts, are still subject to limitation.
The invasion of privacy on Facebook indeed also has relevant limitations. Legislatures are taking the issue seriously as vast online communities and news outlets continually report on adversarial invasions. Facebook is a company residing and incorporated in the United States. As such, they are subject to the laws of this country and may only disclose and use a member’s information pursuant to those laws. Thus, the contract between Facebook Inc. and the user is subject to relevant statutory and contract common law. Misappropriation or undue divulgement of information by Facebook would subject it to legal action. One type of action, to which there is sufficient support, is that Facebook’s agreement is an adhesion contract, parts of which may be unconscionable.
Standardized agreements used by Facebook, or commonly adhesion contracts, afford the user little to no bargaining power. The definitive characteristic of an adhesion contract is the user will be offered it on the condition that they “take it or leave it.” Users who sign up for Facebook are only required to insert a small amount of information such as name, email address, gender, and birth date. They may not bargain on the terms and conditions during the process. After the profile creation, they may only control their privacy pursuant to Facebook’s preset standards.
To be fair, this practice is not isolated to Facebook or social media in general. The use of adhesion contracts is a profoundly adopted practice as they are efficient for larger businesses that enter a substantial amount of agreements daily. Also, the use of adhesion contracts as a terms and conditions template is not characteristic of a company that does not have the interest of the other party in mind. That being said, a contract of adhesion is unconscionable when that balancing of interests tilts too far in the favor of the business. Unconscionable by definition is “showing no regard for conscience; affronting the sense of justice decency, or reasonableness.” Courts have interpreted contracts as unconscionable when they are unfair or oppressive to the weaker party. The circumstances of the contract, such as oppression, stress, or surprise are also factors weighted against the justifiability of adhesion contract terms. When faced with an adhesion contract, plaintiffs typically argue that specific terms were never bargained for or agreed to.
E. Drawing a Line in the Sand
Unfortunately, any legal analysis cannot at this point continue. Much like any good two part story, the analysis of whether Facebook’s terms and conditions are unconscionable is in effect left on a cliffhanger. To have a claim brought against it, Facebook must first cross the line into an alleged contract violation. This is not to say this has not already occurred. In Cohen v. Facebook, Inc., Facebook was hauled into court over the use of user names in promotion of site content. While Facebook’s motion to dismiss the suit was granted, the judge postulated an interesting analysis of the privacy provisions. He theorized the terms were simultaneously limiting on Facebook, while conceivably giving them unfettered use. The broken stream of logic was not lost on the Judge when he stated “[p]resumably Facebook would not argue that its supposed license to [user information] ‘in any manner’ would insulate it from defamation claims were it to post the names and pictures of the named plaintiffs on every user’s Facebook home page, over a caption reading ‘The FBI’s Most Wanted.’” He concludes there is, in fact, consent to the use of member information, but perhaps not necessarily the type of use Facebook engages or will engage in. Cohen, and similar cases, leaves the legal community and the installed user base of Facebook waiting to see what line may be crossed next. Until then, the terms and conditions governing privacy, agreed to by every member of Facebook, act as a pseudo-catchall against a society that is slowly coming to perceive the value of digital privacy.
 Laura Porter, The Greatest Books in the World: Interpretative Studies 86-87 (Houghton Mifflin 1913)
 Id. at 87. Mephistopheles is the sprit of denial however the book is interpreted as the character being the devil. Id. at 86.
 Id. at 84 (describing Faust as a retelling of a story in which the reader must know what to expect when reading it).
 See 25 David DeWolf et. al., Wash. Prac. Series §9:19 (2012)(describing the non-preparer of the contract is an adhesion contract as the weaker party in the agreement). They can become the weaker party since they usually will not consult a lawyer, bargain over the terms, nor have the ability to remove any terms of which they are not in agreement with. Id.
 Id. Creators of adhesion contracts can often create them with the assumption that the other party manifesting assent will not understand the terms contained therein. Id.
 Id. (listing types of business where adhesion contracts are customarily used).
 That is to say, state of being.
 See, Facebook Privacy a Growing Concern for Users, NPR (May 12, 2010), http://www.npr.org/templates/story/story.php?storyId=126780031 (discussing users expectations of privacy against Facebook stance that information intended to remain private should not be posted on a social network). See also, Rob Waugh, Half of Facebook Users ‘Can’t Keep Up’ with Site’s Snooping Policies as Privacy Rules Change Eight Times in Two Years, Daily Mail (Nov. 3, 2011), http://www.dailymail.co.uk/sciencetech/article-2057000/Half-Facebook-users-sites-snooping-policies-site-changes-privacy-rules-EIGHT-times-years.html (discussing Facebook privacy changes and consumer reaction to them, including consumers being unaware and failing to change their privacy settings accordingly).
 See Stacy Curtin, Facebook Privacy Concerns: A Majority of Facebook User’s Don’t Trust It, Yahoo! Finance (May 16, 2012), http://finance.yahoo.com/blogs/daily-ticker/facebook-privacy-concerns-majority-facebook-users-don-t-154550920.html (including quotes from authorities in online privacy say there is reason for concern when a company holds user information).
 See James Grimmelmann, Saving Facebook, 94 Iowa L. Rev. 1137, 1183 (2009)(discussing the amount of users who read the agreements of social networks).
 Brian Stelter, Facebook’s Users Ask Who Own’s Information, N.Y. Times, Feb. 16, 2009, http://www.nytimes.com/2009/02/17/technology/internet/17facebook.html?_r=0
 See Tom Stamer, Social Media and the Law, Human Resources Executive Online (Oct. 16, 2012), http://www.hreonline.com/HRE/story.jsp?storyId=533351819 (discussing the activities of universities and employers requesting Facebook user passwords and the ensuing scuffle between litigators and they seek to regulate or obliterate what is becoming a common practice).
 See generally Facebook Principles, Facebook, http://www.facebook.com/principles.php (last accessed Oct. 20, 2012)(describing the principles behind Facebook, many of which err on the side of openness of information).
 Id. “People should have the freedom to share whatever information they want, in any medium and any format, and have the right to connect online with anyone – any person, organization or service – as long as they both consent to the connection.” Id.
 Id. “People should have the freedom to access all of the information made available to them by others. People should also have practical tools that make it easy, quick, and efficient to share and access this information.” Id.
 Id. “People should have the freedom to build trust and reputation through their identity and connections, and should not have their presence on the Facebook Service removed form reasons other than those described in Facebook’s Statement of Rights and Responsibilities.” Id.
 Id. “People should have pragmatic interfaces for sharing and accessing the information available to them. The specifications for these interfaces should have published and made available accessible to everyone.” Id.
 Id. “The Rights and Responsibilities of Facebook and the People that use it should be described in a Statement of Rights and responsibilities, which should not e inconsistent with these Principles.” Id.
 Id. “[T]he Facebook Service should transcend geographic and national boundaries and be available to everyone in the world[.]” Id.
 Id. The additional four are “Ownership and Control of Information; Fundamental Equality; Fundamental service; [and] Transparent Process.”
 Arguably, Facebook is now a publically-traded company, so this conflict may stem from the need to protect itself from legal exposure while supporting the ideas that fostered the company’s creation.
 See generally Data Use Policy, Facebook, http://www.facebook.com/about/privacy (last accessed Oct. 20, 2012)(describing the levels of privacy given to different types of information uploaded by the user).
 Id. The access to this type of information is limited by preset privacy settings supplied by Facebook. Id. Additional information may include religious views, work and education history, romantic interests, political party allegiance, and general entertainment interests.
 Id. Interestingly, Facebook chooses to call this an “addition.” Id.
 Statements and Responsibilities, Facebook, http://www.facebook.com/legal/terms (last accessed Oct. 20, 2012)(stating users can control and set their own privacy setting).
 Id. (stating definition of Information).
 Id. (defining content).
 Id. (defining use).
 Id. (emphasis added).
 See James Grimmelmann, Saving Facebook, 94 Iowa L. Rev. 1137, 1164 (2009)(describing ways in which users may unjustifiably feel their privacy is safe).
 Id. Grimmelmann recants stories of users whose privacy was violated and suffered different forms of harm as a result. Id. at 1165.
 Id. at 1164 (describing harms coming from the exposure of sensitive Facebook information through other users, or people accessing the site with the intention of mining for information on a user, reducing Facebook at a “catalyst” for privacy violation).
 The Dark Knight (Warner Brothers Pictures 2008)
 David Sydiangco, Don’t Bother Posting the “Facebook Privacy Notice That’s Spreading Around, Slate (June 5, 2012, 12:13 PM), http://www.slate.com/blogs/future_tense/2012/06/05/facebook_privacy_notice_debunked_.html (discussing the viral activity of the Facebook Privacy Status).
 Id. (errors and emphasis contained in original).
 Evan E. North, Facebook Isn’t Your Space Anymore: Discovery of Social Networking Websites, 58 U. Kan. L. Rev. 1279 (2010).
 U.C.C. § 2-102 (2011).
 U.C.C. § 2-105 (2011). “ “Goods” means all things…which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities and things in action. “goods” also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty. Id.
 U.C.C. § 1-103.
 U.C.C. § 1-308.
 17B C.J.S. Contracts § 739 (2012).
 Statement of Rights and Responsibilities, Facebook, http://www.facebook.com/legal/terms (last accessed Oct. 20, 2012). Interestingly, Facebook has a provision in its terms that allow users to initiate a change to the policy. If 7000 users post a substantive comment in regards to a change they wish to see made, Facebook will initiate a vote on the change. If 30% of the active users vote on the change, the decision will be binding.
 See Leslie Masterson, Sovereign Citizens: Fringe in the Courtroom, Am. Bankr. Inst. Journal, Mar. 2011, at 65, 66 (2011)(discussing the use of 1-308 while signing documents by citizens claiming sovereignty).
 Id. Many beliefs are not universal, and some claiming sovereignty tends to pick and choose those applicable to their particular set of circumstances. Id.
 Id. Masterson discusses at length the case of Elizabeth Rohr, a physician who faced numerous charges in federal court and adopted the sovereign belief in an attempt to circumvent her pending legal problems. Id.
 Id. One such attempt is to claim that any courtroom that contains a flag containing yellow fringe is improperly establishing its jurisdiction. Id. The belief is a flag with yellow fringe asserts admiralty jurisdiction. Id.
 Porter, supra note 1, at 88 (discussing the legend)
 Janet Babin, Facebook Users Upset Over Privacy, Am. Pub. Media (May 20, 2010), http://www.marketplace.org/topics/tech/facebook-privacy/facebook-users-angry-over-privacy.
 25 David DeWolf et. al., Wash. Prac. Series §9:19 (2012). Most users will not bargain, nor will they consult a lawyer, or attempt to modify their agreement. Id.
 Id. “Standardized agreements are necessary to today’s system of mass production and distribution. Such agreements can be reduced to writing more swiftly and efficiently, while the forms for each type of transaction can be tailored to fit the needs of the industry or business.” Id.
 35 Thomas Merritt, Mass. Prac. Series §5:27 (2012).
 Black’s Law Dictionary (9th ed. 2009).
 Merritt, supra note 83. See Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159 (5th Cir. 2004); AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011)(holding class arbitration waivers as unconscionable).
 Merritt, supra note 83.
 Cohen v. Facebook, Inc., 798 F. Supp. 2d 1090, 1092 (N.D. Cal. 2011).
 Id. at 1095.
 Id. at 1096.
 See Generally Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (N.D. Ca. 2011)(alleging Facebook allowed users names and pictures to be used in conjunction with advertisements to show the user had “liked” the product, motion to dismiss was granted in favor of Facebook); Young v. Facebook, Inc., No. 5:10–cv–03579–JF/PVT, 2010 WL 4269304 (N.D. Ca. Oct. 25, 2010)(alleging Facebook breached terms of service contract when deleting woman’s account after she was considered a hostile user for engaging in arguments with other members and friend requesting too many unknown parties).