4:42am | 1 November 2012 | by Raegan MacDonald, English
However, in response to a letter expressing concern about the new policy from Representative Edward J. Markey, a Massachusetts Democrat who is co-chairman of the US Congressional Bipartisan Privacy Caucus, the company said in a statement that, “We could have been clearer about this when we rolled out our updated Services Agreement.” He also added that as a result of the feedback they’ve received, they will update the agreement to make the point explicitly clear.
The increasing power companies assert in ToS agreements
Terms of service agreements, ostensibly an agreement between the service provider and a user, are increasingly designed to protect the interests of the service provider. As the use of the internet and ICT become ever more ubiquitous, these service providers play a determining role in how the rights of users are enabled (or eroded), including the rights to freedom of expression, access to information, and privacy.
But companies aren’t just rewording their Terms of Service agreements (and privacy policies, acceptable use policies, etc) to generate more profits or to support a business model, there’s also been a recent push from governments to get companies to adopt even stricter content and data management policies. In Europe, for example, the European Commission are asking companies to “voluntarily” adopt measures to solve societal problems such as protecting children (e.g., the CEO Coalition to make the internet a better place for kids) and/or preventing terrorist use of the internet (e.g., CleanIT), into their Terms of Service agreements.
These private contractual agreements mean that service providers not only write the rules – which very often restrict basic human rights and legally protected behaviours – but fail to outline clear criteria for their interpretation, leaving users (those who can take the time to read the often lengthy policies) at a loss as to what powers the provider may actually have over the management of their information.
Here’s a great example of some of the powers Microsoft provides itself, in the company’s app developer agreement, under removal policies, "Microsoft may remove or suspend the availability of any app from the Windows Store for any reason or no reason". Unlike many Terms, which are written in complex legalese, this one is pretty clear. They don’t even need a reason, and are free to remove your app from its store, literally whenever they want with no justification whatsoever.
It’s not just Google, or Microsoft, let’s look at the big picture
Unfortunately, it’s not just the Googles and the Microsofts who are doing this, but a much larger corporate trend. Recently, Amazon remotely wiped the contents of an individual’s kindle and closed her account. In the email she received, the company found that her account was “directly related to another which has been previously closed for abuse of our policies.” According to its Conditions of Use, Amazon.co.uk and its affiliates are permitted to “refuse service, terminate accounts, remove or edit content, or cancel orders at their sole discretion.” This is a perfect example of how such vague Terms can be enforced arbitrarily, as one might not assume that this enables the company to remove purchased items on your ebook. Would you expect Amazon or any other book store to come into your home and take books off your shelf that you had purchased there? And this isn’t the first time this has happened, as in 2009, Amazon deleted (perhaps with some sense of irony?) copies of Orwell’s “Animal Farm” and “1984”.
As Terms of Service agreements increasingly dictate how our rights are protected (or restricted) on the online products and services we have come to depend on, it is important that such terms are readable, clear, and above all, rights respecting. To learn more about this, there are many ongoing projects at the moment which aim to incentivise companies to be more transparent and rights respecting in these agreements -- such as the EFF’s TOSBack, Terms of Service; Didn’t Read, and Privacy Score.
But that is just the first step. If we demand it, they will change them. While they may be big companies, let’s not forget that these products and services -- email, blogs, search engines, social networks -- are made for us.