Seeking 'veritas' in Facebook's latest legal battle

Fresh off the controversy over its Beacon program, Facebook finds itself wrapped up in a renewed legal battle over its founder's past at Harvard. And this time, it's losing.

Caroline McCarthy Former Staff writer, CNET News
Caroline McCarthy, a CNET News staff writer, is a downtown Manhattanite happily addicted to social-media tools and restaurant blogs. Her pre-CNET resume includes interning at an IT security firm and brewing cappuccinos.
Caroline McCarthy
7 min read

3:14 p.m. PT: This post has been updated with the results of the hearing involving Facebook and 02138 Magazine.

There's a cliched old joke among the Ivy League set: how many Harvard students does it take to screw in a lightbulb? The answer: only one. He holds that bulb and the world revolves around him.

It's a somewhat fitting jab in the latest back-and-forth spat involving social-networking site Facebook's powerful legal team, as the skirmish has brought out the ugly sides of both the Palo Alto, Calif.-based dot-com and the Harvard alumni magazine attempting to expose its most Collegiate Gothic of secrets. But more important, it's thrown some of Facebook's potential problems back into a media spotlight that's a whole lot brighter than just one bulb.

And this time, Facebook is reportedly losing in court--so far.

The controversy began earlier this month when 02138, an independent magazine geared toward (as its Web site says) "a unique community of educated, affluent, and influential readers: Harvard alumni," and named for the university's Cambridge, Mass., ZIP code, published "Poking Facebook," a detailed profile of the company's early days as the pet project of then-undergraduate Mark Zuckerberg. The author, freelance writer and Harvard alumnus Luke O'Brien, dug up court documents, Web sites, and letters that painted a portrait of Zuckerberg (who eventually dropped out of Harvard), as arrogant, spurious, and willing to do anything to scramble his way to the top.

But in doing so, Facebook's lawyers have claimed that the article allegedly overstepped a boundary itself: The documents divulged an alarming degree of personal information about Zuckerberg himself, including his parents' address and his Social Security number, and made it public to the Web. Facebook's lawyers served up legal notices to 02138 on Thursday in an attempt to get the documents pulled.

The magazine balked at Facebook's takedown notice. "They have taken us to court," 02138 founder and President Bom Kim said in an interview with CNET News.com on Friday afternoon. "We are in the middle of a hearing."

Several hours later, 02138 released a statement announcing that Judge Douglas Woodlock, of the Federal District Court in Boston, Mass., had ruled in its favor. According to a statement from Kim, "The judge ruled to deny the request to take down the source documents for the article 'Poking Facebook' from the 02138 Web site...The judge found that this was 'core journalism' and the original documents add to the transparency and offer an opportunity to increase unfiltered access and an opportunity for readers to have more information on which to evaluate what the story reports."

This is undoubtedly a blow to Facebook. Representatives from the social network said that Facebook does not yet have a statement; official legal documents were not yet available.

It all goes back to an older court case that still has yet to be resolved. According to O'Brien, he was denied the opportunity to interview company executives, including Zuckerberg, for his story. Consequently, the writer relied largely on the court documents that were turned over to him by a Massachusetts court of appeals, dealing with the social-networking site's ongoing lawsuit against onetime Harvard rival ConnectU--which eventually became a major subject of the 02138 article. ConnectU founders Divya Narendra, Cameron Winklevoss, and Tyler Winklevoss have alleged that Zuckerberg pilfered ConnectU's code and business plan while employed as a developer by the fledgling social network. The original suit was filed in 2004, and no verdict has surfaced.

ConnectU v. Facebook, over which Woodlock also presides, has seen only small developments since the judge held a dismissal hearing in a Boston courtroom this July. But with the 02138 story and surrounding legal action now making headlines, the semi-forgotten trial could be thrown back into the spotlight.

ConnectU representatives were unavailable for comment Friday. Facebook continues to insist that their claims are unfounded: "Mark Zuckerberg and many others built Facebook through their own ingenuity and hard work, and they are focused on building it further," a company statement read. "It is unfortunate but not surprising that others falsely claim credit for it after its enormous success."

O'Brien said that when he was researching "Poking Facebook," he was under the impression that the ConnectU v. Facebook documents in question were public. "I went to the U.S. district court in Boston first, and I pulled the file there on the case--the 2004 case, I believe," he explained in an interview with CNET News.com. "There wasn't much in it, so I asked the clerk there if there was anywhere else I could find some documents, and they sent me down the hall to the appeals court clerk (where) they wheeled out a big trolley of three giant boxes full of documents."

The cover of the Harvard alumni magazine that published a controversial expose about Facebook founder Mark Zuckerberg. 02138mag.com

Contained within, O'Brien recounted, were all of the documents that were then posted to 02138mag.com--including Zuckerberg's application to Harvard, which Kim said had been included in the court documents on the part of Zuckerberg's legal defense team.

Also among the documents were the contents of a personal Web diary, information pertaining to a house that Zuckerberg and several others had leased for a summer, and e-mail correspondence with Harvard administrators. "It was unclear to me whether some of these documents were sealed or not. There were a lot of documents in the case file that were clearly sealed, in manila envelopes taped shut," the writer said, denying that he opened any of those. Others, he said in retrospect, possibly should have been sealed, but weren't. "There were several other envelopes that were ripped open." Ultimately, it meant that some very intimate details about Zuckerberg were exposed: his Social Security number, his girlfriend's full name, and his parents' home address.

According to Facebook, these documents were not public and were already protected under court order, and an emergency request for a temporary restraining order that would bar those court documents from "publication or dissemination" was submitted to the judge in the ConnectU v. Facebook case. The motion itself was filed under seal.

"We filed the motions to let the court know that its orders were being violated," an e-mail statement from Facebook explained. "One reason the court ordered certain documents' protection was to prevent exactly what has happened: misusing documents and taking documents out of context to sling mud."

O'Brien said that the final call on whether the documents were public was "for the court to answer," recusing himself from the brewing legal drama. And now, it appears that the court has ruled in his favor.

The leadership at 02138 was more vocal. "We believe that we have a legal right to post (the documents) online and that you have a legal right to read them," executive editor Richard Bradley said in a blog post Thursday. "Meantime, spread the word that a company which plans to collect and sell personal information about 50 million people doesn't want one magazine to conduct legitimate reporting about Facebook and its founder Mark Zuckerberg."

Speaking to CNET News.com, Kim echoed those sentiments. If the court made the mistake of releasing the documents, he said, it's too bad; they're public now. "We have every constitutional right to publish that, and the public has every right to know, so this really becomes a First Amendment issue," he said. "Whether the documents were sealed or unsealed is irrelevant right now because the information's already out there."

For Facebook, the timing is awkward. Earlier in the week, the company yielded to complaints over its Beacon advertising program, which some activist groups and concerned users claimed was a violation of user privacy. As many pundits have already noted, it's a little ironic, at the very least, for Facebook to be up in arms over the privacy of its founder's personal information.

And because the ConnectU lawsuit remains unsettled, Kim speculated that Facebook may be trying to keep its image clean. "You'll see that the spokesperson goes out of her way to point out, to defend Zuckerberg's ownership of Facebook," he said. "It clearly highlights what they're really sensitive about, which is that the documents really raise questions about Zuckerberg's ethics, Zuckerberg's behavior, and the origins of Facebook."

But Facebook representatives insisted that legal action had been taken because this is a matter pertaining to an ongoing case, not an attempt to cover up and censor unsavory reports about the company's founder. "We want to be clear on what these motions are about," the statement continued. "These are not about an article the magazine has written, these are about documents that were protected by a court that have been misused."

O'Brien said he doesn't buy it. "There's a little bit of discrepancy," he said, "between what they say and what they do. Zuckerberg talks so much about openness of information, and the way they're behaving in that situation to me just strikes me as probably the wrong path to go down, to try to squash somebody's First Amendment rights."

Kim concurred. "This is consistent with...the way they are dealing with ConnectU," he said. "They are dealing with us by harnessing an army of lawyers and using legal proceedings to try to get their way."

(Full disclosure: This reporter earned her undergraduate degree at a university that throws a large-scale bonfire in the event that its football team beats Harvard's.)