Happy Groundhog Day, Facebook!
Last week, Facebook announced that it planned to enactchanges to its privacy policies. Itsannouncement elicited the by now, all too-familiar flurry of protests fromusers and privacy advocacy groups. Sixprivacy groups wrote to the Federal Trade Commission (FTC) that the proposedchanges violated the 2011 settlement that Facebook reached with the FTC over itsSponsored Stories advertising program.
The letter states that the proposed changes “will allow Facebook toroutinely use the images and names of Facebook users for commercial advertisingwithout consent.” While the current policy permits users to “use your privacysettings to limit how your name and profile picture may be associated withcommercial, sponsored, or related content ,” the proposed policy brazenlystates:
“(y)ou give us permission to use your name, profile, picture,content and information in connection with commercial, sponsored or relatedcontent…This means, for example, that you permit a business or other entity topay us to display your name and/or profile picture with your content orinformation, without any compensation to you.”
As the letter points out, the images of Facebook’s users“could even be used by Facebook to endorse products that the user does not likeor even use.”
Facebook’s proposed policy changes also contain thisprovision:
“If you are under the age of eighteen (18), or under anyother applicable age of majority, you represent that at least one of yourparents or legal guardians has also agreed to the terms of this section (andthe use of your name, profile picture, content, and information) on yourbehalf.”
In other words, Facebook is forcing kids to lie. As I explain in my new book, nobody reads wrap contracts, such asonline terms of use (and with goodreason). Given our habituation to onlineagreements, we probably don’t even notice them anymore – we click reflexively, outof habit. But even though we suffer fromclick amnesia, courts construe our click as consent. Facebook’s proposed new policy not only claimsconstructive consent, it also forces kids to constructively claim their parentsconsented. It’s a fiction wrapped insideanother fiction. The result, as theletter to the FTC notes, is an evisceration of “any meaningful limits over the commercial exploitation of the imagesand names of young Facebook users.”
This week, the Federal Trade Commission announced that it would investigate whether Facebook’s announced policy would violate a 2011 agreement that the company had reached with the agency. Facebook’s position is that the proposed changes were prompted by its settlement in a case involving its Sponsored Stories advertising program.
Facebook’s proposed changes seemed eerily familiar and thenI realized why –I’d already written about this issue back in December. Back in December, Instagram, a companyacquired by Facebook, proposed changes to its terms of service that stated:
“you agree that a business or other entity may pay us to display your username,likeness, photos (along with any associated metadata), and/or actions youtaken, in connection with paid or sponsored content or promotions, without anycompensation to you. If you are underthe age of eighteen (18), or under any other applicable age of majority, yourepresent that at least one of your parents or legal guardians has also agreedto this provision (and the use of your name, likeness, username, and/or photos(along with any associated metadata)) on your behalf.”
Do the terms sound familiar?
Instagram’s proposed changes to its terms ofuse made its users rally in alarm and threaten to defect. But Instagram backed off in response and thecompany promised it would respect their wishes.
And now this, again. It’s like the 1993 movie, Groundhog Day, starring Bill Murray and Andie MacDowell. In that film, Murray’s character, a T.V. weatherman, is made to report on Groundhog Day activities. Murray’s character, who doesn’t like the assignment, finds that he keeps waking up to relive Feb. 2nd over and over again.
Facebook just doesn’t understand that no, means no. It pleads forgiveness, wants us back, andthen the same behavior starts up all over again. We want to believe you. We really do.
We feel your pain, Huma Abedin.
There are long term consequences to what Facebook is doing. Each time it pushes, it pushes hard, and inresponse to pushback from consumers, it appears to retreat – but not as farback as it pushed. Then it does it againand each time, Facebook manages to loosen our privacy norms just a bit more. It wins through increments, throughpersistence. It didn’t get to a billionusers overnight and it isn’t going to strip us of all our privacy without agood fight from us.
But big changes are made in increments. Policy changes that nobody reads because theyare hidden in wrap contracts, slowly but surely, change our expectations ofprivacy. The erosion of consent,justifiable perhaps at one time to limit business risks, led us to where we arenow –an online contract clause that purports to extract consent from someonewho never even received notice of its existence. To make matters worse, the clause isdirected at children who don’t even have legal capacity to contract.
Really, this time you’ve gone too far, Facebook. This time, let’s make it the last time,Facebook. Promise?
Of course you do.
[Nancy Kim]