May 22, 2013

Calling for a People's Terms of Service on the Internet

Evan Selinger co-writes this excellent thought-provoking analysis on boilerplate contracts and internet privacy today in the Nation. Here's a highlight:

The impact of boilerplate is especially acute for minors. Teenagers contract with online companies without understanding the vulnerabilities created upon clicking “I agree.”
Today, the law protects these arrangements by assuming they were fairly negotiated, and thus reflect a “meeting of the minds” by equal parties. That is weird. 
After all, these contracts are usually created through user confusion and one-sided demands.  How can citizens even bargain with a standard, take-it-or-leave-it form?
Thanks to a doctrine called the Objective Theory of Contracts, the courts treat a contract as valid when people give the impression they accept or reject it, even if they were actually ignorant, or just confused. Bizarre as this legal logic might seem, it is deeply entrenched in the judicial system. It isn’t changing anytime soon.  ....
The very idea of a People’s Terms of Service agreement might initially seem strange. Right now, contract terms aren’t negotiable. You can’t ask Facebook to exempt you from Graph search. You could ask Instagram to waive its mandatory arbitration clause, in case you ever want to defend your rights before a jury, but they would say no. You forfeit those options just by using the services.
But why not try to collectively negotiate a contract that reflects some common consumer priorities? We think the best tack here is for interested users and consumer advocates to publicly debate their consensus priorities and draft them into a model contract.
There are two potential benefits: The result could be pressed on existing Internet companies, and also provide a model for new companies that want compete for users who demand respect for their freedom, choice and privacy.
To be effective, the contract would use plain English, not legal jargon.  It should be short enough so people can read it. (That’s a contrast to Facebook, which offers a contract almost as long as the US Constitution.) Beyond terminology itself, we propose five values worth considering for a model agreement: security, confidentiality, transparency, permanency and respect for intellectual property.   
Perhaps The main ethical problem here from a business perspective is that of conflict of interest. For the monetization of Facebook creates a disincentive against a people's terms of service as it is via the sharing of consumer data with other firms that the company stands to profit the most. Thus this seems to be an argument that, carried to it logical conclusion, is also a criticism of the vision of the internet promulgated by Facebook (and Google) of a virtual environment of near constant social networking married to marketing.

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