Beyond Facebook’s “Bill of Rights”

Back in 2007 I wrote a post called “Disclosure vs Consent: What Software Can Learn From Medicine,” in which I argued that software companies ought to include an informed consent process with their EULAs, in an attempt to make sure their users actually understand what they are agreeing to, instead of blindly checking the “I Agree” box without reading the document. I’d like to revisit this topic in light of this week’s furor over changes to Facebook’s Terms of Service.

First, though, a semi-extensive recap of the weeks events:

  1. On Sunday, the Consumerist blasted Facebook’s new TOS (which were a few weeks old) with a post provocatively titled “Facebook’s New Terms Of Service: ‘We Can Do Anything We Want With Your Content. Forever.’” The core issue was the removal of a clause that allowed you to permanently delete your content by deleting your account – Facebook had granted itself permission to continue owning (and using) your content after you left.
  2. Almost immediately, and for several days, the Interwebs freaked out. You all saw it, so I won’t bother with links.
  3. On Monday, in the midst of the freakout, Facebook clarified their intentions, but as the comments on that post show, that didn’t stop the backlash.
  4. On Tuesday night, Facebook CEO Mark Zuckerberg declared defeat, announcing on his blog that the TOS had been reverted back to its previous terms, and that they had created a Facebook group called “Facebook Bill of Rights and Responsibilities” to solicit input on the debacle.
  5. Today the blog frenzy has continued, though it has shifted from panicked cries of “OMG, they did what?!” to more substantive coverage. On CNET’s Open Road, Mass Asay calls for more transparency from Facebook. Adam Thierer at the Tech Liberation Front wonders what the fuss was about, suggesting that the free market will sort it out. ReadWriteWeb recaps the fiasco and vows to “keep an eye” on the issue.

OK. It seems this chapter of Facebook drama is closed, so what will this event teach us about EULAs, TOSs, and other agreements in the digital economy?

A few weeks ago, Jed wrote about the challenges faced by free services as they attempt to scale and monetize. Users of free services are fairly tolerant of server downtime and other technical glitches, but “the moment these problems are connected to something that is commercial (and ostensibly at your expense), the Facebook user base is quick to react.” Facebook, perhaps due to its ubiquity, seems to be at the forefront of negotiating with users, sometimes through trial and error, and this week they discovered a “price” that users were not willing to “pay” for their free service.

If Zuckerberg is to be believed, though, much of the latest fiasco was due to misunderstanding of the terms, which are not much different from the terms used by other services. Eric Eldon gives us a tight overview of this perspective. On TechDirt, Mike Masnick notes that people don’t read policies written in legalese, but want them to be better nonetheless. In a sense, we don’t understand what we’re agreeing to, so we outsource judgement and evaluation of these agreemtns to the crowd.

Regardless, it is clear that these agreements and policies are not written for effective communication, but rather as C.Y.A. boilerplate.

In my “Disclosure vs Consent” post, I suggested – among other things – that EULAs should be standardized, so that the burden on users is lessened and so that 3rd parties could give neutral “plain English” explanations that could be broadly applied to the agreements for many different products and services. One approach to this would be to take inspiration from the copyleft movement, which has used licensing standards (the Free Software Definition and the Open Source Definition) to not only aid the spread of opensource software, but also to frame the movement around general, plain English principles.

Mike Masnick (linked above) touched on this idea this week, as well, in reference to the Facebook debacle, wondering why there aren’t Creative Commons-style standardized Terms of Service.

I think Facebook is on to something with their so-called “Bill of Rights”, though it remains to be seen how the idea will actually translate to policy. Personally, what I’d love to see is a Bill of Rights for online services in general, a standardized TOS that basically says, to quote this commentor, that “We don’t own your stuff, we won’t give away your stuff, we won’t sell your stuff and we won’t use your stuff.”

What do you think? Is standardization a good route to go? Would onlne services actually opt-in to these policies? Is there a better way to fix the disconnect between legal policies and user understanding?

Brad Weikel

Brad Weikel received his MA in Communication, Culture & Technology (CCT) from Georgetown University in 2009. His thesis, "From Coding to Community: Iteration, Abstraction, and Open Source Software Development" argued that programming practices, particularly iterative workflows and abstraction models, can help explain both the success and struggles of open source software. His work was a technocentric complement to prior explanations from economists, lawyers, and political and cultural theorists. While writing his thesis, Brad blogged about his topic at OpenCulture.cc, where he has since continued blogging, more broudly, about collaborative production and the commons at large. Brad was Managing Editor of gnovis during the 2007/2008 and 2008/2009 school years, and Creative Director in 2006/2007. He is currently the Web & Communications Coordinator for EarthRights International.