Recently, Barinsta, the free (as in freedom) unofficial Android app for Instagram, received a Cease & Desist letter from Facebook’s lawyers. This led the main developer, Austin Huang, to take down the GitHub repositories and basically discontinue the project. Although I am against everything that is related to Facebook, I believe it is very important for an app like this to exist, in order to allow those who for some reason can’t quit Instagram, to use the platform with a bit more of privacy and self-agency, free of targeted advertisement.
I didn’t know that this whole thing had happened, until I was looking for a free Instagram client and found Barinsta. The GitHub repository seemed to be down, and after a quick search, I found a Hacker News article reporting on the C&D letter, posted two days before. I read the letter, and found it stupid. I couldn’t get why was everyone, including Austin, so panicked. In an impulsive decision, I offered to host the repository and its development.
I honestly don’t care about violating Instagram’s Terms of Service. I don’t care about Facebook permanently banning me from Instagram. In fact, I actually wish Facebook did that, so I could tell everyone why it happened. I’m willing to resist intimidation and stand firmly against Facebook. We can’t give up so easily: that’s what Facebook wants! We, the free software community, must show strength and courage. We must fight if we want freedom.
Breaking down the letter
Disclaimer: I’m not a lawyer, and my knowledge of law is extremely limited. This is my personal opinion. Don’t take any of this as a fact.
Facebook demands that you stop this activity immediately.
Facebook takes the protection of the user experience very seriously, and it is committed to keeping its products safe for users to interact and share information. Facebook has developed terms and policies to protect the user experience and facilitate these goals.
Really? When you see something like “X takes Y very seriously,” it’s always PR bullshit. It’s as if they were robots programmed to say the exact same things over and over. They only care about protecting user experience when it means $$$ for them; in this case, it means the opposite of that.
Facebook’s and Instagram’s terms prohibit, among other things:
- Collecting users’ content or information via automated means without Facebook’s prior permission;
- Using or sharing user data without the users’ consent;
- Misleading other users and impairing the intended operation of Facebook and Instagram by, e.g., permitting anonymous viewing and downloading of Stories, a feature not supported by Instagram;
- Using Facebook or Instagram trademarks, or any confusingly similar marks, except as expressly permitted by the Brand Usage Guidelines or with Facebook’s prior written permission. For example, you cannot use a name that is similar to or includes “Instagram,” “IG,” “Insta,” or “gram,” and/or logos that look like Instagram’s logos or icons that mimic Instagram’s Spectrum Multi-Color Gradient, and logos that mimic the Instagram Camera Logo Glyph; and
- Facilitating or encouraging others to violate the Instagram terms.
Thanks for letting us know about your terms! As I said, I don’t care about them. Delete my account if you want. I won’t argue on this. Barinsta is not causing any more harm than you are, Facebook.
Think, people, think! Do you seriously think it’s illegal to write an app that might violate the terms of service of a private company? Facebook has the absolute right to ban your account, that’s the way terms of service are enforced. As simple as that.
- Court: Violating Terms of Service Is Not a Crime, But Bypassing Technical Barriers Might Be – Electronic Frontier Foundation
In addition to breaching the terms of service and interfering with Facebook’s business expectations and interests, your activities may violate other federal and state laws. See Computer Fraud and Abuse Act, 18 U.S.C. § 1030; Copyright Act, 17 U.S.C. § 101 et seq.; Lanham Act, 15 U.S.C. Chapter 22; and the California Comprehensive Computer Data Access and Fraud Act, Cal. Penal Code § 502.
Okay, this is interesting. Which laws are we violating exactly? Let’s see!
This law, from what I can see, serves to protect access to “protected” computers (i.e. government computers and servers) in the context of national security. It doesn’t protect servers of private companies from totally harmless activities, if I understand correctly. Barinsta was never designed to commit fraud anyway; it’s intended for regular users.
This “law” only contains definitions of copyright terms. Does Facebook seriously think Barinsta is violating the definitions of those terms or something?
This law is basically trademark law, which doesn’t apply in this case because “Insta” and “gram” are not registered trademarks, and thus, “Barinsta,” which is a totally different word, is not infringing on any trademark.
This law might actually make sense regarding this project, but it doesn’t seem like it applies outside California (I don’t live there, nor in the U.S.), and you can easily defend yourself saying you didn’t commit or intend to commit fraud, which is absolutely true in this case.
Two days ago, after Facebook deleted the accounts of the New York University researchers who run Ad Observer, EFF posted an interesting article about it. Here’s a particularly relevant quote from the article:
Another issue EFF emphasized at the time is that Facebook has a history of dubious legal claims that such violations of service terms are violations of the Computer Fraud and Abuse Act (CFAA). That is, if you copy and paste content from any of the company’s services in an automated way (without its blessing), Facebook thinks you are committing a federal crime. If this outrageous interpretation of the law were to hold, it would have a debilitating impact on the efforts of journalists, researchers, archivists, and everyday users. Fortunately, a recent U.S. Supreme Court decision dealt a blow to this interpretation of the CFAA.
Facebook has taken technical steps to deactivate your Facebook and Instagram accounts, and hereby revokes your limited licenses to access Facebook and Instagram. This means that you, your agents, employees, affiliates, or anyone acting on your behalf (“You” or “Your”) may not access the Facebook or Instagram websites, mobile applications, Platforms, services, or networks for any reason whatsoever. Facebook will treat any further activity by You on its websites, mobile applications, Platforms, services or networks as intentional and unauthorized access to its protected computer networks.
That’s so unfortunate for Huang! But that wouldn’t be a problem if it happened to me.
Please respond to me WITHIN 48 hours confirming that You:
- Have stopped and will not in the future access the Facebook and Instagram websites and/or use Facebook’s and Instagram’s services for any reason whatsoever;
- Have preserved and will continue to preserve in the future all information related to the activities described herein;
- Have stopped and will not in the future offer, transfer, market, sell or offer to sell any services related to Facebook and Instagram;
- Have removed your products from any and all distribution points, and have stopped and will not in the future develop, sell, offer for download, and/or distribute software that interacts with Facebook’s and Instagram’s services;
- Have removed all references to Facebook and Instagram from any and all websites that You own or have the ability to control;
- Will account for and disgorge any and all revenue earned from Your unauthorized activities related to Facebook and Instagram;
- Have secured all Facebook and Instagram data under your control and ensured it is no longer accessible;
- Will, following the accounting required below, delete all data obtained from Facebook and Instagram;
- Will transfer all domains similar or related to Facebook or Instagram to Facebook;
- Agree not to use any marks on your products that incorporate the components of the INSTAGRAM mark (“INSTA,” “GRAM,” or any other Instagram logo or branding elements) or are similar to Instagram’s Spectrum Multi-Color Gradient or Camera Logo Glyph;
- Will enter into a written agreement memorializing your commitment to compliance with the demands in this letter.
Along with Your response, You must provide the following information:
- A complete list of any and all Facebook and Instagram accounts you have created, developed, maintained, or controlled;
- A complete list of domain names that You own, maintain, or control presently, along with all domain names that You have previously used to offer Facebook or Instagram services;
- A complete list of each and every product you created that targets Facebook users and/or interacts with Facebook or Instagram services;
- A detailed description of the methods used to automate Facebook and Instagram functionality and provide Instagram or Facebook related services, including a full list of all apps or APIs that you utilized or developed;
- A detailed description of the methods You used to obtain data from Facebook, Instagram, or any of its affiliate companies;
- A complete accounting of all compensation or revenue received by You in connection with your Instagram services and/or Instagram user data;
- A copy of each and every version of any software code You have developed or used to interact with the Facebook and Instagram websites and/or services, including any libraries, frameworks, or other code, and the source for that code if not Your own development; and
- A complete accounting of all Facebook and Instagram data that You obtained from Facebook or Instagram, and a certification that this information has been deleted and destroyed.
This has to be a joke.
If you ignore this letter and continue your current improper conduct, Facebook will take whatever measures it believes are necessary to enforce its rights, maintain the quality of its websites, and protect users’ information and privacy
The future of Barinsta
As I said, I offered to take care of the project’s development. I created a fork of Barinsta in Codeberg. I’m not afraid of Facebook and I’m willing to ignore further C&D letters. This fork becoming the official one depends on what Huang and the Barinsta community decide. Huang hasn’t talked at all since that letter, like, he’s been totally silent, and no one knows why. People are now saying Barinsta is dead (or in coma); but no, that’s not true, there’re people willing to continue the development.
Some people have been telling me to go incognito and hide my identity so as to avoid being sued or something. But no, I won’t. I have no reason to be afraid. We need to stop acting as if we committed murder or something, take it easy, y’all!
I would also like to use this app as an opportunity to promote decentralized platforms such as PixelFed and Mastodon. Like, maybe adding a note that says: “we develop this app for those who can’t quit Instagram but want a bit more of privacy and self-agency, but we recommend using free, ethical and decentralized platforms such as PixelFed and Mastodon.”