Now that Facebook has rescinded its "new" Terms, let’s talk about 13 problems with the Terms, 2 questions to consider about the site, and 10 changes Facebook should make.
If you see “new Terms” below, that refers to the Terms Facebook enacted on February 4, 2009, then rescinded. “Old Terms” refers to the Terms in place before then, which are now the current terms.
1. Facebook wants to make money using your information. That doesn’t make them evil; users worldwide are fine with Google, another free service, reading their searches and emails to target advertising. But Facebook isn’t a charity, and their current business model is aimed at sending you targeted advertising or at finding a way to monetize what they know about you. Keep that goal — and not the goal of "sharing" — in mind when you consider Facebook’s Terms. Keep in mind, too, what would happen with your information if Facebook was sold to another company.
2. Facebook has the right to use your information and content "for any purpose, commercial, advertising or otherwise." Your use "automatically grants" them "an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license" to anything you put on the service, and, for the new Terms, anything you enabled someone else to post, like if you put a "Share on Facebook" button on your blog. The old Terms permit you to terminate this license by removing your content from the site. The new Terms did not recognize that right of termination; Facebook could use your content forever, for any purpose, without your permission. That’s what the hoopla was all about.
4. Facebook has, in the past, broadcast user’s private information in ways users didn’t want or expect. Two notable examples were the "Beacon" service, which defaulted to broadcasting what users did on third-party sites (e.g., what products they bought) and the misleading "deactivation" policy, in which closing an account merely "deactivated" it without prohibiting access to any of the content . Facebook has also been criticized for confusing privacy settings — for example, by inputing your location you have automatically joined that locality’s "network," and thus by default are accessible through searches by people in that area.
5. Facebook wants to use your name, likeness and image for their commercial purposes. The new Terms had a license not just your content, but your very identity, which they could use for commercial purposes like using your name to endorse or market products.The reason Facebook wanted this additional license seems clear: the "Beacon" service above, which Facebook had to retreat from, likely violated existing laws in many states, particularly New York, prohibiting the use of another’s likeness in an advertisement without proper consent and compensation. The new Terms tried to run around those laws. Recall, too, that Facebook would have had that right forever.
7. Facebook can delete your whole account without warning. Under both Terms, Facebook can pull the plug "for any or no reason, at any time in our sole discretion, with or without notice."
8. The content Terms are so onerous they ban even the "25 Things" meme. "User conduct" says "you agree not to use the Service or the Site to … upload, post, transmit, share or otherwise make available any … chain letters." Oops. The old Terms also ban "any content that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable." The new Terms went a long way towards cleaning up those ridiculous prohibitions.
9. Facebook does not permit any commercial use whatsoever. The old Terms are very clear: "You understand that except for advertising programs offered by us on the Site (e.g., Facebook Flyers, Facebook Marketplace), the Service and the Site are available for your personal, non-commercial use only." The new Terms changed all that, requiring that your profile be for personal uses but allowing you to create Pages for commercial purposes.
10. Facebook isn’t responsible if a third-party application abuses your personal information. From Facebook’s privacy page: "However, while we have undertaken contractual and technical steps to restrict possible misuse of such information by such Platform Developers, we of course cannot and do not guarantee that all Platform Developers will abide by such agreements."
11. Facebook isn’t liable if they lose your content, give you a virus or allow your account to be hacked. Under both Terms, the "Disclaimers" and "Limitation on Liability" have multiple provisions preventing you from suing them for just about anything. Here’s one example: "Under no circumstances will the Company be responsible for any loss or damage, including any loss or damage to any User Content or personal injury or death, resulting from anyone’s use of the Site or the Service, any User Content or Third Party Applications, Software or Content posted on or through the Site or the Service or transmitted to Users, or any interactions between users of the Site, whether online or offline."
12. If you can find a way to sue Facebook, you have to go through arbitration. The old Terms made you use the American Arbitration Association in the location determined by the AAA Rules (likely your domicile), whereas the new Terms make you use Judicial Arbitration and Mediation Services in Santa Clara County, California, though you’re permitted to appear by phone. It’s unclear why Facebook switched from AAA to JAMS; either way, be glad they’re not using the National Arbitration Forum, which has been accused of stacking the deck in favor of defendants like credit card companies.
13. If you can find a way to sue and win in arbitration, your compensation is severely limited. The old terms’ "limitation on liability" limit you to "the amount paid, if any, by you to company for the service during the term of membership," capped at $1000. The new terms entitle you to a minimum of $100, with a cap of "the amount paid by you, if any, to Facebook during the twelve months immediately preceding the day the act or omission occured that gave rise to your claim."
2 THINGS TO CONSIDER ABOUT FACEBOOK’S SITE:
14. What should the default privacy settings be? Should Facebook presume you want to share everything, some things, or nothing? And with whom should it presume you want to share? Your friends? Their friends? Their friends’ friends? What about people in your location or your former classmates? The default settings are very powerful, since they’re often not changed and because users are often confused by what the changes even mean, so they should be chosen carefully.
15. When one user deletes a post on Facebook, what should happen to other users’ comments to that post? This scenario represents a larger issue for Facebook, one they were likely attempting to address with the new Terms. Facebook’s primary purpose is to facility communication, usually in the form of one user posting a status update, link or photo and other users commenting in response to that update, link or photo. So who "owns" those comments? Who "owns" a comment which quotes the original post? Don’t look to the law: the point of Terms is to establish a relationship and settle questions. How do users want or expect such a deletion to function?
16. Users should retain the right to remove their own content from the system. Users expect and should have the right to remove any content from Facebook, and thereby terminate Facebook’s license, at any time. That’s what the old Terms permitted, and it’s essential for any artist who, down the road, is asked to grant an “exclusive” license to their content.
17. Facebook should not have any rights to user’s name, likeness or image except where specifically permitted. It’s reasonable for Facebook to get a blanket, revocable license from you for your content; the whole service works by distributing your content to others, and a blanket license enables them to easily introduce new features that distribute your content in new ways. Name and likeness are a completely different matter. Given Facebook’s poor history in the past regarding likenesses (e.g., the “Beacon” service), Facebook should be upfront about when it is going to use your likeness for a commercial purpose and should ask you for permission for that specific use.
18. Facebook’s Terms should be written (or summarized) in plain English. The controversial “licenses” term was a 120-word sentence that “granted” a “license” (a “license” defined by six adjectives) over the course of two subclauses (“(a)” and “(b),” which together included twenty different verbs), two sub-subclauses (“(a)(i)” and “(a)(ii)”), and a modifying end-clause (“each of (a) and (b)”) that ended with a legalese preposition (“thereof”). Possibly worse, the license included an ambiguous clause – “subject only to your privacy settings” – which caused numerous users to conclude, wrongly, that Facebook’s entire license was limited to the user’s privacy settings. The clause, at most, limited the license only for content posted, not content shared or the user’s likeness, and, at worst, actually reinforced that users retained no license control at all, but instead “only” the ability to limit privacy settings.
19. Facebook’s Terms should be built on trust, not distrust. “You agree” appears eleven times in the old Terms and fifteen times in the new Terms; “Facebook agrees” does not appear in either. Both Terms bear far more in common with the release people signed to be ridiculed by Borat than a mutual agreement. If Facebook says, like Gmail, that “We will not use any of your content for any purpose except to provide you with the Service,” they theoretically increase the likelihood of being sued, but they also make the relationship much clearer and more trusting.
20. Facebook should bear some legal and financial responsibility. As noted above, you are essentially a guest on Facebook’s servers, and they can kick you off whenever they want, for "any or no reason." Unless the Terms include provisions that are legally enforceable, in an affordable manner, users have no “rights.” When Facebook says, “you can’t sue us, just trust us,” they really mean “we don’t trust ourselves enough not to make mistakes and get sued.” Even if you come up with a way to sue them, your damages are limited to what you paid Facebook ($0), a big problem given how a basic JAMS arbitration costs almost $8,000 just to get the ball rolling. Facebook has cause to be concerned about exposing itself to liability among 175 million users, but there is a comfortable middle ground where Facebook’s liability isn’t open-ended but users are still protected.
21. Facebook should only be permitted to delete or restrict your account for “cause.” As noted above, Facebook both can delete your account without warning and prohibits you from myriad activities online. 175 million users includes a lot of trolls, spammers, harassers, and con artists, and that’s okay – Facebook can reserve for itself broad reason for “cause,” like the new Terms included, such as if a user “intimidates or harasses any user” or “does anything that is illegal, infringing, fraudulent, malicious or could expose Facebook or the Facebook Service users to harm or liability.”
22. Facebook should agree to take reasonable steps to secure user’s personal information and should be required to report any disclosures. Know what happens if Facebook goofs and sends your personal, identifying information to third parties? Nothing. What happens if Facebook knows a third-party application is harvesting personal addresses and selling them to spammers and scam artists? Nothing. The liability here doesn’t have to be unlimited, but it should be something, possibly a set fee, like $250 per violation per user.
23. Facebook should guarantee the security of your content. Facebook expects and wants its users to put a substantial portion of their lives online, including extended conversations with friends. Users have every reason to expect, and to make Facebook responsible for, guaranteeing their data will not be lost or corrupted. Again, Facebook doesn’t have to be completely responsible for every lost customer a business suffers, but they should have a meaningful level of legal and financial responsibility.
24. Facebook should permit a jury trial of class actions against Facebook, with attorneys fees and costs if Facebook loses. The old terms illegally prohibit class actions. The new terms permit class actions, so long as you first arbitrate whether you can bring a class and you waive your right to a jury trial. Such a limitation might be illegal, too, and it flies in the face of Zuckerberg’s claim that "we need to make sure the terms reflect the principles and values of the people using the service." There needs to be real, meaningful, enforceable responsibility when Facebook breaches one of the terms above.
25. Facebook should keep many of the new Terms. The new Terms changed the governing law to California (likely out of convenience), one of the most pro-consumer states in the nation. That’s great. It was also great how Facebook came up with specific ways for people to conduct business through Facebook. Finally, Facebook really did shorten the Terms and make them a little bit more coherent (such as in areas like “User Content”) and they shouldn’t shy away from that.