Matt Allison, of Connected Intelligence, blogs on Stanford Law School’s campaign for a “people’s terms of service”.
NOTE: This post was originally published on Connected Intelligence.
An article for Stanford Law School’s Centre for Internet and Society caught my eye recently, calling for a campaign to pressure Internet companies to put in place contracts which reflect the rights of their users: a people’s terms of service.
I was fortunate enough to attend an interesting LSE seminar recently which covered in some depth the inadequacy of current contract law as a means of recourse for users of Internet services and the questionable legality of any such contract drawn up with a minor via terms of service agreement. After all, whilst many companies do not formally allow minors to use their services, research has shown that in reality there are many children skirting the restrictions in place to gain access.
The crux of the argument is that technology giants such as Facebook, Google and Apple have in place mandatory terms of service agreements, which are often lengthy, opaque and massively stacked against the interests of the user. It is a common adage in the Internet age that if you can’t see the product, you are the product. As such we are led to expect that, in return for the benefits of these products and services we must forgo control of our personal data.
As the Stanford article demonstrates, currently terms of service enshrine this one sided relationship, submitting control of personal information (via prose, pictures and preferences). The courts themselves certify the legality of this form of contract though the objective theory of contracts, which establish the basic ‘take it or leave it’ principle of terms of service agreements as an equal meeting of minds and fair basis for a contractual relationship, even when this decision is built on ignorance and confusion.
One solution proposed at the LSE seminar and underpinning the Stanford Law article is that we act collectively to renegotiate the content of these terms of service agreements, in favour of the consumer. As the recent #Fbrape episode has demonstrated (whereby Facebook revised its stance on the removal of abusive content following a high-profile advocacy campaign) collective action, effectively coordinated and mediated via social media (the Twitter hashtag was a vital part of the campaign) can spur Internet companies into action.
A revised terms of service contract of this type would renegotiate the baseline expectation we have as users of Internet services over transparency, control of our personal data, intellectual property and more. In return, companies such as Facebook could use this as an opportunity to obtain from its users a greater share of accountability for content they published – and this will form a vital part of Facebook’s renewed effort to remove abusive and sexist content from the site.
The fly in the ointment, as with many public policy debates around the Internet, is how this solution would translate to children. As mentioned above, children are expressly banned from using many of the webs most popular content hosting platforms including Facebook and YouTube. However, we know they are active on these sites and in large numbers. Therefore whenever they log on, they are effectively entering into a content with the service provider that rests on a dubious legal foundation. To the letter of the law, it is not possible to enter into such a contract with a minor and as such these agreements are hardly worth the paper they are written on, so to speak.
The debate over contract reform is more complex than a simple of matter of public pressure. Whilst this may go some way to overcoming inertia on behalf of Internet companies and rebalancing their relationship with their consumers, it will take time to address the tricky legal question of how companies should frame their relationship with children on their services, if at all.
However at the very least a public discourse of the kind proposed by the Stanford authors would in the meantime go someway to spreading light on the issue of terms of service contracts, where industry has largely had its own way so far. In doing so we could raise the baseline common expectation of how much we are willing to co-opt our online identity and rights to our intellectual property in return for enjoying Internet services and products.