John L. Hines Jr. & Jennifer Woods

Facebook recently rolled out its Graph Search feature to all users of its English version in the U.S. The feature is designed to allow individual users to access Facebook’s “graph,” an enormous store of user information previously available only to paid advertisers.

Graph Search allows users to query Facebook for users who match specific criteria, such as “people who like dogs and live in Houston” or “companies whose employees like hiking.”  Search results are displayed as a list, including profile photos/images of people and companies. The results screen also provides suggestions to enhance the results. 

Graph Search results are based on a database of user information, including profile information, friend networks, pages “liked” and “tagged” information, such as photos and location.

No way to opt out

Facebook users cannot opt out of Graph Search having access to their data, but users do have the ability to determine to some extent whether they will appear in connection with another party’s Graph Search results. 

Facebook has indicated that Graph Search will respect the privacy selections made by users, and will omit those users from Graph Searches conducted outside the user’s selected subset.  

All results are provided as a current snapshot, giving the impression of real-time information. Because Graph Search relies on information voluntarily provided by users, however, results may include inaccurate or outdated data. For example, terminated employees may appear on search results related to a particular company even though their affiliation with the company has ended, or never existed at all. 

What does it mean for businesses?

The opportunity to more effectively target customers and prospective employees may help level the playing field for small businesses that don’t have the advertising budget to create sophisticated ad tracking programs. On the other hand, businesses need to be aware that using certain targeted information may present regulatory challenges under applicable employment, discrimination and other laws, as well as reputational risks. 

For example, as one Graph Search beta tester discovered, a search for “employers of people who like racism” returned results including a division of the armed forces and companies that are known to virtually every household. 

It might be true that one employee out of Company X’s 50,000 employees happens to be “perceived” as a racist by Graph Search, and therefore Company X falls on the aggregated list. But Company X might have no knowledge of the employee’s beliefs and may maintain a sterling record of proactively supporting justice and equality.

The Graph Search feature may take information about individuals and business out of context and then re-aggregate it so that it could suggest an inaccurate picture of the aggregated companies. 

Consider your options

It is important to consider how to minimize any negative reputational impacts of Facebook Graph Search.

Options may include responsive communications by the affected company; encouraging Facebook to further refine the terms of use relative to Graph Search and its relationship to privacy settings; and, possibly analyzing how the creation and publication of Graph Search results containing undesired associations may come under state and federal laws. 

Finally, an individual’s use of privacy settings can affect the associations. It may be valuable to consider, with the advice of employment counsel, educating staff regarding Facebook and its privacy settings and training on the relationship between Facebook and the company’s brand.

John L. Hines Jr. is a member of Clark Hill’s Intellectual Property Practice Group. Jennifer Woods is an attorney for the Intellectual Property group in Clark Hill’s Chicago office. For more information, visit www.clarkhill.com.


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