What lies behind the furor surrounding Facebook's ever-changing terms of service.
February 19, 2009 - 12:11 am
Zuckerberg and Facebook made an attempt just to “clarify” the change; in a blog entry, Zuckerberg said:
In reality, we wouldn’t share your information in a way you wouldn’t want. The trust you place in us as a safe place to share information is the most important part of what makes Facebook work. Our goal is to build great products and to communicate clearly to help people share more information in this trusted environment.
Of course, that didn’t much help, since the natural response of anyone who has dealt with lawyers, upon hearing the phrase “the trust you place in us,” is to grab their wallet with both hands and run for the door. The kerfluffle continued until just short of midnight last night, when Zuckerberg made another announcement on his blog:
With the kerfluffle over for the moment, it’s a good time to look at how it happened. First of all, while it’s the automatic response of some people on the Internet to immediately erupt napalm from all orifices, it doesn’t appear that this was a conscious attempt by Facebook to grab up the rights to the members’ content.
Facebook really did have a problem, since the existing TOS says they no longer have a license to publish your materials once you remove them from your account; the thing is, another user may have attached comments or tagged a photograph or something. They don’t want to delete those if you leave; they get enough trouble from users about things they remove for other TOS violations. I’m sure someone realized that by including the language about terminating the license “except for archived copies” they exposed themselves to some risk, so the lawyers rewrote the TOS.
The thing is, every lawyer is taught to assert all the rights you can get, and then let the other person argue you down. By asserting complete ownership, they were ensuring that there was no other unexpected case, and hey, if it worked out that Facebook owned a license to photographs by the next Ansel Adams or prose by the next Steven King, well, all the better. The mystique of the law is such that most clients, especially naive ones, don’t question what the attorneys are doing, and it’s a rare attorney who considers what actually makes sense for the business in terms of public reaction.
So now, after a week of furor, and at least one late night for Zuckerman, the TOS is back to the original text, and Zuckerman has made a commitment in his blog to revise the TOS so it will “reflect the principles I described yesterday around how people share and control their information, and it will be written clearly in language everyone can understand.” At what cost, in terms of Facebook’s reputation and in bad PR, it’s hard to guess.
This sort of thing is certain to happen again, though, if not to Facebook then to someone else. The whole structure of having terms of service that a user can agree to with a click, or even just by reading a Web site’s content, and that can be changed from moment to moment with consent assumed, is inherently asymmetrical: a hundred times of day, the user is assumed to consent to individual terms of service written by attorneys in legalese that requires a big specialized vocabulary to understand.
So ask yourself: what contracts have I signed today?