Fine. Nobody reads website “terms of service” fine print. Of course we should be concerned about our privacy, but these (often one-sided) agreements are almost impossible to decipher and can seem kind of pointless in that even if Facebook or Google does something we don’t like, it’s not like we’re going to stop using them.
This might sound like a good excuse for skipping over those long gray blocks of tiny text, but corporate lawyer Andrew Nicol argues that it’s still just an excuse. Whether we think we can do anything about it or not, he says, we’re better off at least knowing what we agree to or what rights we sign away when we visit popular online destinations.
“A lot of these sites are definitely setting themselves up to make money from big data,” Nicol says, and their cause is aided by writing terms of service that give them broad rights to collect, store, share and sometimes sell your personal information.
Luckily for the rest of us, Nicol puts his legal skills to work and breaks these agreements down into plain-English translations of what the jargon means (and explains why you should care). Two weeks ago, he launched ClickWrapped.com, an analysis of how 25 big websites, including Google, Facebook and Amazon, treat you and your data.
The site evaluates four categories of policies and practices: how these online companies use your data; how and when they disclose it; why they can terminate you as a user; and a miscellaneous category that includes sneaky moves like requiring mandatory arbitration to resolve disputes or giving themselves the right to sell stuff you upload to their servers.
Clickwrapped uses a 100-point scale, with the lowest scores going to sites with the sketchiest, broadest ability to use your data. A site can earn up to 25 points in the first three categories and starts with 20 points in the miscellaneous category; points in this category can be gained or lost depending on whether or not the policy is consumer-friendly or not.
According to Nicol’s assessment, Wikimedia, the parent site of Wikipedia, comes out on top with a total score of 86. Some of the reasons why: It only takes personal data it needs to provide its services, it promises to inform users within three days if the government requests their information (although it loses points for turning that information over in the first place), and it solicits user feedback before making amendments to its agreement.
When people do actually pay attention to online privacy and data usage, they tend to focus on Google and Facebook. According to ClickWrapped, these two stack up pretty well, coming in at numbers three and four, respectively. Google gets dinged for sharing user information both across its own platform and with third parties, but Nicol praises the straightforward, plain-English wording of its terms of service. Facebook loses points because it can track what you do on other sites and lays claim to your information even if you close your account.
Facebook also has a few weird stipulations that cost it points in the miscellaneous category. For instance, did you know that tagging friends in photos without getting their permission first and not keeping your contact info up to date are technically violations of the service agreement?
“It’s completely unenforceable,” Nicol says. But it still gives them the right to terminate your account. If it wants to boot you off the site, “Facebook is going to be able to rely on any number of unrealistic provisions like this,” he points out.
At the bottom of the barrel was Craigslist with a score of 45, the only site that scored below 50 on the 100-point scale.
“Craigslist can do pretty much anything it wants with content you submit,” Nicol writes, and it’s not transparent about government requests. The agreement stipulates that it can make changes to its terms at any time and kick anyone off the site for any reason. Finally, there’s a bizarre “liquidated damages” clause that says if you’re “copying, aggregating or distributing content posted on Craigslist,” it can seek $25,000 in damages.
Even if you mistakenly post something in the wrong category or flag something without cause, the terms of service say you owe Craigslist $25. “That’s just crazy,” Nicol says.
Of course, Craigslist isn’t going to come after you if you post an ad for your old bicycle in the “furniture” category by mistake. The rules are there to target the spammers and commercial enterprises that sponge off the Craigslist platform. But since the clause isn’t worded to make that clear, Craigslist legally has the grounds to come after anybody it wants.
Another problem with many of these terms of service is that they force you to resolve any dispute via arbitration; in other words, you give up your right to sue them with the exception of small-claims court. These consumer-unfriendly policies are becoming more prevalent in all sorts of service contracts, which is probably why some frustrated people do wind up suing big companies in small claims court.