Update: Facebook has since reverted the change in terms of service. Cool. On Feb 18th, a message on the home page said :
Mark Zuckerberg also blogged about the same issue in Update on Terms.
Original post begins here.
Facebook published a new Terms of Service on February 4th 2009 which has a strong implication for how internet / cloud based data privacy is likely to be viewed. This was very well publicised here - Facebook’s New Terms Of Service: “We Can Do Anything We Want With Your Content. Forever.”. There was some consternation on the net especially on twitter about this change in facebook rules. While I did not use facebook much, I was sufficiently appalled at the change in rules to go and delete pretty much most of my data one line at a time. It is unclear to me if the old data is still available to facebook for sublicensing from a legal perspective (I know all the data will be there in their archives), but I decided it probably wouldn’t hurt to nevertheless to go delete most of it. I didn’t actually delete the account since Facebook still helps me keep in touch with my friends. But it is quite safe to assume that any interactions with them with an assumption or requirement of any data privacy will no longer be done on facebook.
Whats wrong with the new terms of service ? Some people in forums argued that most of the data on internet is likely to be there forever. So one just needs to be careful and not worry about it. I don’t quite agree with that line of thinking. When I blog, tweet, post to usenet or forums, I am upfront aware of the fact that that data is going to be cached by google and other search engines and that once I press the publish button, there’s often no way to revoke it. However in case of Facebook, there is a general expectation that the data will be shared only within a network of friends, a network that I have control over. There is an expectation that that data will not get cached by search engines and short of an accidental data breach or some intentional malafide activities that data will not become public. What is unnerving with the new terms of service is that Facebook changed these rules at will without even sending me an email about the same.
Asymmetry of Privacy Expectations :
It is interesting to note how asymmetric some of the terms are. For example in the section User Content, the following is to be found.
By using or accessing the Facebook Service, you represent, warrant and agree that you will not Post:
* User Content that violates the law or anyone's rights, including intellectual property ("IP") rights or other proprietary rights (such as rights of publicity and privacy); * any Contact Information or private information of any third party;
Further down in the section Licensing, it states,
You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof.
As you can see, you undertake to not violate anyone else’s IP or other proprietary rights, but information about you will not be treated with the same level of respect by Facebook, though its done quite legally by documenting the same in the Terms of Service.
Moreover anything you post or any information on your stream is now sub-licensable by Facebook. Now why would I exactly want to sign away all rights on status updates, photographs etc. on content which I posted assuming that it was secure and private ?
But the earlier terms were also quite onerous. So how come you did not complain ?
Apparently under the earlier terms, facebook also had the rights on the content, so whats the big deal ? Two main issues.
The earlier TOS did not grant Facebook the right to sublicense the content : The possibility of sublicensing means you have no control or idea on who the eventual user of that data could be. I still get angry at so many commercial parties at having leaked my email and phone number data. The likelihood of a similar scenario where facebook sells that data for commercial purposes now cannot be ruled out, purposes on which I will have no control on that data.
The earlier TOS had an escape clause of deleting the account Basically Facebook did not have the right on the data once you deleted the account. This is important as can be seen by another case on Twitter Privacy Disaster At Twitter: Direct Messages Exposed (Update: GroupTweet Is Likely Culprit). In this case private messages were apparently accidentally made public due to confusing software usability. The person immediately responded by deleting the account. This is a useful kill switch to have in case one makes a terrible terrible mistake of putting out something accidentally. This kill switch is also no longer available.
Bait and Switch : By not informing users of the change in terms of service especially since these were so important, I think this creates an impression that the user is a victim of bait and switch (even though the real underlying causes of the change which I am unaware of could be different). Facebook should’ve informed the users about the change in rules, offered a button to delete all prior data / photographs / content or at least made clear that the earlier content will continue to be governed by the earlier TOS - something thats a little unclear in this situation.
Implications for Internet Web sites and users : I think sites should very clearly document how they will control and use the data that they gather. Many of them do by explicitly document the same. Moreover any substantial changes to the same should be communicated to the users. Finally users need to be now aware of potentially changes of Terms of Services on a number of web sites that they interact with. Data that they assume to be private may no longer stay so and the user may not be any wiser about the same if the Terms of Services are changed without him being explicitly informed.
Why did I delete the data ? Seems some readers are thinking I deleted the data believing that that will get rid of it. Thats not why I deleted the data. I am fully aware the data is likely to live perpetually in facebook archives and be accessible to facebook. I deleted it because that data had been submitted and generated under the old Terms of Service. Letting it be around to me seemed like an implicit acceptance of the new Terms of Service around old data, which I was uncomfortable with. So I deleted the data at the first available opportunity on realising that the Terms of Service around that data had changed. Any new interactions I do with facebook will be under an awareness of and therefore an acceptance of new Terms of Service.
Response from Facebook : Mark zuckerberg attempts to address the issue on facebook blog : On Facebook, People Own and Control Their Information. I could not find any rationale to why Facebook needs the privilege to sublicense the content. I also thought the way the blog post was written and the way the Terms of Service are structured are very very different. In my opinion its the Terms of Service that count.
This topic has been also getting a lot of traction on other blogs. Am quoting some other interesting opinions on the topic on the internet along with link backs to the posts below
Google has had its own problems with user privacy, but this Facebook move calls into question the wisdom of clouds or, rather, storing one’s data in others’ Web services like Facebook. We need to come up with new licenses or new mandates for open data in the cloud. Facebook shouldn’t own our data.
The possible implications of this TOS change go beyond these concerns. Sure, you can choose not to use Facebook at all, but that doesn’t mean a thing. Someone can still take your photo, slap it on Facebook, and now neither you nor the author of the photo can stop Facebook from using the photo in whichever way they please. Looking at it globally, millions of people are uploading bits of information on everyone and everything, to a huge online database, and by doing so they’re automatically giving away the rights to use or modify this information to a private corporation. And not only that; they now also waiver the right to ever take it back from it.
Facebook should take a long, deep look into how it treats its users. Until now, users had options with regards to how the data they generated on Facebook was used. Now, they have no options whatsoever, rather than quit the service altogether. It’s a major difference; I’m not going to take it lightly, and neither should you.
You are only granting those rights “on or in connection with the Facebook Service or in the promotion thereof.” What does that mean? Well, it means that you are licensing the use on Facebook branded websites or any other media and the Facebook Platform, which is the legal name for the APIs that allow third parties to create Facebook applications. So if there was a Facebook TV show, they could use your stuff on that. Or if they launched a Facebook concert series or a Facebook magazine, they could use your stuff in that. Presumably, if there were a Facebook dogfood, they could use your content on that. Or if they wanted to make an advertisement FOR any of those things, they could use your stuff in that. Precisely WHY Facebook would want to do any of those things, I leave to the reader to speculate on. What they most emphatically CAN’T do is what Walters claims, that “We can do anything we want with your content forever.” They can do anything they want with your content ON Facebook or to Promote Facebook forever. But if they said that it probably wouldn’t cause the internet panic and generate hits for the consumerist and readers to stroke Walter’s ego with diggs and trackbacks and twitterposts either.