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Comment by wang_li | Hacker News Reader

I hope they had "permission" from both sides of the conversations that they recorded in states that require two-party/all-party consent. Otherwise, this is more than just a privacy issue, it's criminal.

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That's actually a really good point.

https://www.lawyers.com/legal-info/personal-injury/types-of-...

Did the license agreement for messenger mention recording? If so they're probably covered.

My guess is that the T&C grants permission for FB to record the primary user, and then the liability for recording (via FB) _other_ people falls on the primary user for recording while other people were talking?

I'm gonna make a bold prediction and say that exactly 0.0% of users were aware that they had this liability and acted on it.

If I make a product for millions of users and every single one breaks the law in the exact same way using my product, and common sense dictates that avoiding breaking the law with my product is near impossible, and I hide this fact in a a tiny disclaimer somewhere, am I completely innocent?

We are talking about a product with a 100.0% criminal ratio here. A product that for all intends and purposes cannot be used in even the most trivial manner without breaking the law.

I wouldn't be surprised if there were meetings where they distinctly decided that the user should not even be able to discover that liability, and chose their wording accordingly.

That’s not how criminal law works.

I don't know why you're being downvoted, this is correct. You can't "waive liability" for a crime. If a conversation was recorded without consent in a two-party state, then a crime was commited. And absent a carve-out in the law, I don't see how the party that actually made and retained that recording (Facebook) wouldn't be prosecutable. Absolutely no EULA term is going to get them out of that.

That said: they won't be prosecuted criminally, because this isn't really the spirit of the law and prosecutors aren't generally in the habit of taking on giant corporations for putatively useful technologies. It's much more likely that they'll pay a fine and stop doing it. No one is going to court.

If I use Facebook voice-to-text around you, why is that different from using a traditional recording device without your consent? Isn't that on me, not whomever listens to that recording?

Typically, intent is the distinguisher. You intended for the interaction to be transient and transactional—you say something and text appears on the screen. In reality and without your knowledge, the service provider intentionally recorded, kept, and shared that data. That puts the service provider at fault as they are the ones that arranged for he recording to happen, if if you are he one that pushed the button.

They probably configured it to always cross state lines to one of their out of state datacenters.

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