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Valparaiso Univ. Law School

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Friday, September 13, 2013

Happy Groundhog Day, Facebook!

Groundhog_day

Last week, Facebook announced that it planned to enact changes to its privacy policies.  Its announcement elicited the by now, all too-familiar flurry of protests from users and privacy advocacy groups.  Six privacy groups wrote to the Federal Trade Commission (FTC) that the proposed changes violated the 2011 settlement that Facebook reached with the FTC over its Sponsored Stories advertising program. 

The letter states that the proposed changes “will allow Facebook to routinely use the images and names of Facebook users for commercial advertising without consent.” While the current policy permits users to “use your privacy settings to limit how your name and profile picture may be associated with commercial, sponsored, or related content ,” the proposed policy brazenly states:

“(y)ou give us permission to use your name, profile, picture, content and information in connection with commercial, sponsored or related content…This means, for example, that you permit a business or other entity to pay us to display your name and/or profile picture with your content or information, without any compensation to you.”

As the letter points out, the images of Facebook’s users “could even be used by Facebook to endorse products that the user does not like or even use.”

Facebook’s proposed policy changes also contain this provision:

“If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to the terms of this section (and the use of your name, profile picture, content, and information) on your behalf.”

In other words, Facebook is forcing kids to lie.  As I explain in my new book, nobody reads wrap contracts, such as online terms of use  (and with good reason).  Given our habituation to online agreements, we probably don’t even notice them anymore – we click reflexively, out of habit.  But even though we suffer from click amnesia, courts construe our click as consent.  Facebook’s proposed new policy not only claims constructive consent, it also forces kids to constructively claim their parents consented.  It’s a fiction wrapped inside another fiction.  The result, as the letter to the FTC notes, is an evisceration of  “any meaningful limits over the commercial exploitation of the images and names of young Facebook users.”

This week, the Federal Trade Commission announced that it would investigate whether Facebook's announced policy would violate a 2011 agreement that the company had reached with the agency.  Facebook's position is that the proposed changes were prompted by its settlement in a case involving its Sponsored Stories advertising program. 

Facebook’s proposed changes seemed eerily familiar and then I realized why –I’d already written about this issue back in December.  Back in December, Instagram, a company acquired by Facebook, proposed changes to its terms of service that stated:

“you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you taken, in connection with paid or sponsored content or promotions, without any compensation to you.  If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata)) on your behalf.” 

Do the terms sound familiar?

Instagram’s proposed changes to its terms of use made its users rally in alarm and threaten to defect.  But Instagram backed off in response and the company promised it would respect their wishes. 

And now this, again.  It's like the 1993 movie, Groundhog Day, starring Bill Murray and Andie MacDowell.  In that film, Murray's character, a T.V. weatherman, is made to report on Groundhog Day activities.  Murray's character, who doesn't like the assignment, finds that he keeps waking up to relive Feb. 2nd over and over again.

Facebook just doesn’t understand that no, means no.  It pleads forgiveness, wants us back, and then the same behavior starts up all over again.  We want to believe you.  We really do.

We feel your pain, Huma Abedin.

There are long term consequences to what Facebook is doing.  Each time it pushes, it pushes hard, and in response to pushback from consumers, it appears to retreat – but not as far back as it pushed.  Then it does it again and each time, Facebook manages to loosen our privacy norms just a bit more.  It wins through increments, through persistence.  It didn’t get to a billion users overnight and it isn’t going to strip us of all our privacy without a good fight from us. 

But big changes are made in increments.  Policy changes that nobody reads because they are hidden in wrap contracts, slowly but surely, change our expectations of privacy.  The erosion of consent, justifiable perhaps at one time to limit business risks, led us to where we are now –an online contract clause that purports to extract consent from someone who never even received notice of its existence.   To make matters worse, the clause is directed at children who don’t even have legal capacity to contract. 

Really, this time you’ve gone too far, Facebook.  This time, let’s make it the last time, Facebook.  Promise?

Of course you do.

 

[Nancy Kim]

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