In a refreshing departure from the Internet industry’s standard practice, Twitter sent an email notification to every user informing them of changes to the site’s Terms-of-Service.
It is unfortunate that other Internet services do not follow this practice. Most web services’ Terms-of-Service contain a clause saying their terms may be updated at any time. Moreover, they state that it is your responsibility to periodically review the terms to look for any changes.
Such a requirement is absurd, and exploitive. No one should have to weekly check the terms of service of every website they use to see if changes were made – let alone try to identify where in all the fine print those changes may have occurred. (Note: Terms-and-Services, Terms-of-Use, Privacy Policies, etc. can be found at the bottom of virtually every web site.)
Industry members have claimed it would be a logistical nightmare to try to notify all the users. Martin H. Samson, a New York attorney who runs the Internet Law Library, an online Internet law database, says he advises clients to post changes to terms-of-use or service agreements without notifying the users of the site to the changes. Samson explains his advice by saying “Giving notice is a very difficult thing, so we will advise clients to say if you want to see changes to terms of service, you’ll have to come here and look.”
Don’t buy the ‘it would be a logistical nightmare’ story
“Difficult”, “expensive”, and “logistical nightmare” are terms that can be used to describe the requirements placed on auto and child product companies to direct mail customers to notify of product recalls, or food processing plants requirements to notify distributors and alert the media to warn consumers about the need to destroy or return contaminated products.
Web services, on the other hand, know exactly how to notify every single registered user – and the cost of doing so is miniscule. Services can place a notice that pops up when users log in. They can place a notice prominently on their home page. They can email registered users – as Twitter did. And so on.
Under current practices by companies as large as Apple, Google, T-Mobile, AOL and Yahoo, consumers’ content ownership and privacy are hostages of services’ discretion unless a battle cry is created – like the one Facebook generated in February of this year when they stealthily changed their terms of service agreement to broaden their rights to ownership of user-posted content. (See the New York Times article Facebook Withdraws Changes in Data Use).
Facebook was forced to rescind their policy changes when tens of thousands of Facebook users along with journalists and bloggers shamed the company, but this wasn’t their first attempt at radically changing the rules on consumers without their consent. In November of 2007 Facebook pulled a similar stunt when they released their Beacon advertising service. (See the New York Times Article Facebook Retreats on Online Tracking)
Inherent risks in relying on companies to act in the best interests of consumers
Companies act in what they perceive to be the best interest of their company, not necessarily in the best interest of their consumers. This reality makes user’s lack of notice and control over their own content and privacy particularly concerning as ever-more data is stored in online services.
Without clear consumer notification requirements, consumers are simply not protected from terms-of-use and privacy changes that companies may choose to employ. This leaves consumers with a difficult tradeoff between storing their data on cloud services like social networks where they can interact with others and retrieve content from anywhere, and keeping full control of your online experience and the places where it is stored.
Signs the tide is changing – Texas Court Rejects Online Terms of Service as Illusory
In April of this year, a court in Texas ruled that an arbitration provision in Blockbuster’s online terms of service was “illusory” and unenforceable because Blockbuster had reserved the right to change the terms of service at any time. (Ironically, the case arose out of Blockbuster’s participation in Facebook’s “Beacon” program, through which the movie rental choices of Facebook users were disseminated to their Facebook friends.) You can learn more about this case in this summary by legal firm Morrison and Foerster.
Drive change – demand your rights
You have tremendous power. The Facebook incidents illustrate how quickly companies must change their behavior when consumers join forces and protest – after all, if users walk away, the service will cease to exist.
If you have not read the Terms-and-Conditions and privacy policies of the sites you, or minors in your care, use, start now. These may contain a number of concerning clauses that warrant your attention. (See this Fox news article for more Terms of Enslavement: Web Sites’ Outrageous Service Agreements.)
Take the time to understand what rights you should demand of services.