[governance] The Globe and Mail: Terms-of-service agreements are rarely read, let alone understood

[michael gurstein]

(In case anybody needs to be reminded of the reality surrounding these
agreements...
 
M

Terms-of-service agreements are rarely read, let alone understood

OMAR EL AKKAD - TECHNOLOGY REPORTER

The Globe and Mail

Published Tuesday, Jan. 01 2013, 6:43 PM EST

When the creators of 500px, a popular Toronto-based photo-sharing service,
came to draw up the terms-of-service agreement for the site, they wanted a
document that was written in plain English, not the typical indecipherable
legal jargon.

But there's a reason why 500px, like countless other technology companies,
can't simply write the rules of its service in words anyone can understand -
even though that's something more and more consumers are angrily demanding.

"We asked our lawyers, can you make the terms of service so they are human?"
Evgeny Tchebotarev, one of the founders of 500px, says. "The thing is, they
cannot. If you make it in plain language, it'll cost a lot more, and can be
disputed in court."

Instead, 500px settled for a compromise. The company's terms of use
agreement is written in legalese, but each section is accompanied with a
couple of sentences explaining what that legalese means, in simple terms.

It is perhaps an indictment of the current state of end-user licence
agreements - the documents every user must "agree" to before using a digital
product or service - that even this relatively minor addition quickly made
the 500px service agreement one of the most highly praised in the technology
industry.

Most service agreements are simply not readable - and, perhaps as a result,
are rarely read.

Last month, Facebook-owned photo-sharing site Instagram faced a massive
public push-back when it changed its terms of service agreement. Many of the
site's users took the new changes to mean that Instagram could now do
anything it wanted with user photos, including selling them to third parties
without compensating the original photographer. The company was so surprised
by the outcry that it eventually ditched the new terms.

But beyond the public outrage, the Instagram situation illustrates wider
problems with the terms-of-service process. First, there was confusion about
what the new terms actually meant. Second, most users didn't become aware of
the changes because they had read the new agreement but because they heard
about it from others.

"We should ask ourselves if people don't care about their rights; or if the
problem is more that people cannot read the terms before 'agreeing' to
them," says Hugo Roy, head of a project called "Terms of Service; Didn't
Read," which grades the service agreements on various websites and products.

"In my opinion, people care about these issues, whether it's their private
data or their creative work. If people don't care, then how can we explain
that each time Facebook changes their terms, we've got public outcries?"

Licence agreements are almost as old as commercial software itself, but
there are simply far more of them around today than there were a decade or
two ago. A computer user in the 1990s may have had to sign off on a few
pieces of software installed on a computer, whereas today's user can have
dozens of different online accounts for everything from social networks to
e-mail to cloud computing, and each one comes with its own licence agreement
to be read (optional) and signed (required).

A paper last year by researchers at Carnegie Mellon University estimated
that it would take about 76 work days to read all the licence agreements an
average user comes across in a year. Such estimates don't seem very
far-fetched, considering the Apple iTunes agreement alone is about 50 pages
long.

The iTunes software and related apps and media store agreement has become a
prime example of the modern service agreement. The frequently updated
document weighs in at almost 15,000 words. "With something like iTunes,
you'd be hard-pressed to find anyone who actually reads it," says technology
lawyer Arshia Tabrizi, who has worked on many terms of service agreements.
"I don't even read it."

Apple's own licence agreement has been crafted in impenetrable legalese by a
phalanx of contract lawyers, but many other software and web companies take
an opposite, yet still troubling approach. A quick Google search of a random
string of text from LinkedIn's end-user agreement shows that dozens of other
websites - from a Dubai job-finding website to a forum for malaria
researchers - have simply copied much of the social network's agreement
verbatim, replacing the word "LinkedIn" with the name of their own firm.
Indeed, a Virginia-based law office makes the process of designing an
end-user agreement fairly straightforward - simply enter the name of your
company and some other details into a form on the office's website, and an
algorithm instantly outputs a generic end-user agreement for you, free of
charge.

"It is the most boilerplate of documents," Mr. Tabrizi says of end-user
agreements. "Generally, the important thing is understanding users'
expectations of the service. If I write something on Facebook, I would
understand that others may have access to it. But is Facebook going to take
my postings, compile and sell them as an e-book? That would definitely not
be in line with my expectations of the service."

Most web-based services - especially ones that offer a cost-free product,
such as Instagram or Facebook - tend to focus on two areas when crafting an
end-user agreement. The first is liability, so as to limit the company's
exposure if data is accidentally deleted, for example. The other is content
- specifically, limiting what kind of content a user may post on the
service. In many cases, both areas can quickly become intertwined.

Public backlash like directed at Instagram shows that while many users don't
fully read the terms they agree to, a growing number are starting to take a
closer look at terms-of-service documents. In turn, the companies drawing up
the agreements are starting to notice. Indeed, the plain English terms of
service model employed by 500px quickly became so popular, the company began
allowing anyone to use the model for their own websites and services.

"One day, the terms-of-service page received more views than any other page
on the site," says Mr. Tchebotarev.


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