A little over a week ago after the Consumerist published its commentary on Facebook’s modified terms of service, I had deleted my data from my Facebook account and had written at length about what I perceived were the issues with the modified TOS : Why I deleted my Facebook data. Commentary on Internet data privacy rules. A couple of days after that Facebook under pressure from all the adverse feedback, reverted to its old TOS and assured to work with the community to work out a new TOS over the coming few weeks. Earlier today, it released a proposed Facebook Principles and a proposed Statement of Rights and Responsibilities for community review as a part of that process. This was covered by TechCrunch, Silicon Alley Insider, Mashable and Inside Facebook.
Unlike my earlier post, this does not critique Facebook’s actions but instead attempts to analyse the statements in the context of a newer dimension of data thats mobile on the cloud. This brings in both a set of challenges and opportunites and I shall try carefully to not fall into the FUD zone as I discuss these challenges. Finally it also discusses these statments and its implications on user’s and their awareness education challenges. In this exercise I treat Facebook as one of the early providers who is facing and attempting to address these challenges of “mobile data on the cloud” in terms of its privacy and security implications. But in the mashup world, it is likely to be a challenge that both the users and a number of other service providers have to eventually start dealing with.
Allow me to add my annotations on these statements.
Proposed Facebook Principles
A very nice and clear enunciation.
Point 1 : Note the specific mention of “service”. Thats what in my opinion is leading to many of these challenges.
Point 2 : Perfect in principle. However one technical issue needs to be resolved. How does one define ”received information”. If my status update is seen by another user and it has appeared on his wall, has he received information ? Probably not since it is quickly clarified that this is particularly outside the Facebook Service. So we are probably talking about an external application to which facebook feeds the data, another user who might have downloaded some data on his desktop, potential third party services such as search engines (which usually aren’t allowed to scour this data) or other analytics services. I think its a fair statement. The only suggestion I would have is that there probably needs to be some amount of user (re)education to understand its implications.
Point 3 : Clearly refers to the fact that information will be shared with other users and services including through tools (desktop apps / mobile apps ?). Sets up the ground for API usage.
Point 4 : A great point. Establishes a level of symmetry amongst the parties which was one of my sore points in the earlier modified TOS
Point 6 : Clearly documents API usage to access data
Point 10 : Notes that the data is not just mobile across organisations (ie Facebook and its applications) but also across geographic boundaries.
OK, lets quickly review the next statement.
Proposed Statement of Rights and Responsibilities :
Point 2 is an important one to note, especially 2.2 and 2.3. Point 2.2 is wonderful to the extent that it clearly defines that facebook eventually will delete data that a user deletes or in case the user deletes the account. It also specifies that content shared with others may remain until they delete it. Now this content is in all likelihood going to be third party applications and services. Here’s an interesting tripartite arrangement - theres now going to be (for practical purposes) a mini-TOS between the user and Facebook which this statement covers, between Facebook and the third party provider, which I think is likely to be covered within this document as well (well, at least parts of it) and probably one between the user and the third party service. Its the last one which could be worrisome, since the user may now need to worry about each TOS with each third party provider. Most users are unlikely to review each of those terms with the level of detail, yet find their data moving to the third party provider. However, how and when that could get deleted is also addressed later in this statement. Point 2.3 also clearly documents the fact that subject to the user privacy and application settings Facebook assumes a whole bunch of capabilities around such intellectual property. Unlike in the modified TOS, this gives the control to the user to decide how the intellectual property will be treated. Since the control is with the user, I think it is a fair clause to ensure that Facebook itself is not at the receiving end of any intellectual property rights dispute.
In point 3 Facebook attempts to secure the fact that its users do not harvest information or otherwise maliciously gather access to store information that they shouldn’t get access to store. Why the focus on store ? The clauses around using the API are likely to have strict conditions around what data can be stored by the third party application and for what duration (which is true today as well). So its the social or screen scraping or other non-API ways of collecting data that Facebook is trying to secure against.
Point 5 sets up the environment for users to respect property rights of each other. Point 5.7 especially ensures that services clearly document their privacy policies when collecting data and inform the user that the data is being shared with the service and not with Facebook. Point 5.8 ensures that users don’t post other user’s sensitive information and then let it stream over the cloud potentially into other applications and services. Quite reasonable in my opinion.
Point 9 is probably one of the most interesting sections. The important point here is that Facebook has clearly communicated with the user, the undertakings of the applications, websites and services. Coupled with 5.7 and 5.8 above, it essentially creates an environment where the user is clearly aware of the boundaries between Facebook and other services, and that once the data crosses that boundary, that data for all practical purposes is governed by the agreement between the user and the other service. 9.16 was one which did arouse my curiosity a bit. We now start seeing the outlines of why the TOS needed to be modified in the first place.
Finally point 12 also goes to a great distance in assuaging the concerns raised about unilateral and quiet change of TOS earlier. It allows for upfront communication with the users, a reasonable notice period and curiously a vote based user veto (not sure why this really was required, but then I would be surprised if 30% of the user base actually voted).
So what about data sans frontiers ?
In the earlier modified TOS, Facebook had attempted to secure a very large number of rights in order that it would stand protected (if and) when large parts of user’s data start getting shared with other applications, websites and services. Thanks to the user reactions, it has now crafted a very different statement. In this statement while Facebook now assumes far fewer rights, and those it assumes to me seem like part of a fair and symmetric relationship. The way I read and interpret this is that under this statement, Facebook clearly defines a set of boundaries or frontiers (ie. the Facebook Service), and undertakes and provides a mechanism to properly share and control the sharing of such data within such frontiers. However it also makes it abundantly clear, that the user is now adequately aware that it has far lesser control the moment the data crosses such frontiers, and at such a stage this data will now get controlled by the third party services, that the undertakings by the third party service are clearly specified and the user is fully in the loop on this issue. Again seems fair from a corporate perspective and in terms of securing itself from misbehaviour or other inappropriate activities or accidents on the part of the third party services.
The catch is now that the onus is on the user. He has to clearly understand the implications of (perhaps even more detailed) privacy controls, and agree to the fact that once the data crosses the facebook frontiers, facebook has taken adequate precautions in terms of ensuring that the appropriate undertakings having been provided by the users and the services, and that any issues that crop up further could perhaps be bilateral issues between the users and the third party service.
I don’t know that all users are actually in a shape to understand all these implications, and suggest that some mechanisms be put in place to provide users some tutorials or presentations which explain these in as easy and lucid manner as feasible. Users will need to exercise the Caveat Emptor clause before subscribing to / using other services which integrate with Facebook. Users will need to be aware that based on their privacy settings and application requirements, their data is now moving from host to host, company to company, and country to country. On the whole while this does place a far bigger burden of exercising caution on the user, it also puts the user in control and is a far more symmetric statement than the earlier modified TOS.
Finally in an increasingly mashup and service integration driven world, I fully anticipate many more companies and users having to deal with these very issues in other non Facebook contexts as well. This statement is likely to also play a role in the ongoing discussion about the capabilities and the risks of having data in the cloud. If these statements can be agreed upon in a format that is acceptable to all, there’s a good likelihood it will provide the precedent for many more service arrangements being drafted in the future in a relatively similar and consistent fashion.
A programmer is unlikely to be a good lawyer : I am a programmer and have very lay understanding of legal matters. This opinion is based on my understanding but such an understanding could be wrong or inaccurate when looked at by a more skilled person. It is most certainly not a legal opinion and could contain discrepancies, inaccuracies or improper assessments on my part. If you note or find any, please add your comments so that others can benefit from your views as well.