The following is a guest post by David J. Gunkel, author of the forthcoming book Gaming the System: Deconstructing Video Games, Games Studies, and Virtual Worlds.
During the Senate’s grilling of Mark Zuckerberg on 10 April 2018, one Senator—Senator Kennedy of Louisiana—cut through the polite posturing and carefully parsed language: “Here's what everybody's been trying to tell you today, and I say this gently. Your user agreement sucks.” The statement raises a number of interesting and important questions: What is a user agreement? How and why do they suck? And, perhaps most importantly, what can we do about it?
What is Terms of Service (ToS)
User agreements, or Terms of Service (ToS) documents, are legal contracts between an online service provider, like Facebook, and its user. These agreements, which constitute the principal governing documents of online social interaction, spell out the expectations, responsibilities, and liabilities of both parties to the contract. In effect, the ToS for a social media platform, like Facebook or Twitter, is what political philosophers Thomas Hobbes and John Locke call “a social contract.” The ToS document, therefore, not only stipulates the terms and conditions of the commercial relationship but also articulates, structures, and regulates the opportunities and liabilities that are involved with using the service.
Why Facebook’s ToS Sucks
Virtually all ToS documents suck and for a number of reasons. First, these agreements are designed to be top-down and authoritarian. In issuing a ToS the corporate service provider reserves for itself the exclusive right to dictate terms, and it does so, not surprisingly, in a way that tends to favor the organization and its interests. This produces not an open public space, as some users have mistakenly assumed, but a closed, proprietary environment that is under the sole authority and regulation of a private corporation. Despite appearances, Facebook is a “company town.”
Second, and following from this, users have little choice but to consent and submit to the authority and rule imposed by the sovereign organization. The ToS is formulated as a nonnegotiable contract of adhesion, meaning that the ToS is offered on a “take-it-or-leave-it-basis” such that users can either accept the terms of the agreement as written or not. The standard ToS document typically provides only one of two possible options: “I agree” or “Cancel.” In fact, Facebook provides its new users with only one option: “By clicking Create Account, you agree to our Terms and that you have read our Data Use Policy.” For this reason, the relationship between the two parties to the contract is asymmetrical and not open to negotiation.
Third, these documents are often long and deliberately opaque and confusing, producing what some political scientists have called an “obfuscatocracy.” Despite this (or perhaps because of it), users are obligated to consent to the stipulations listed in the document whether they have actually read and understood them or not. And available evidence—both anecdotal and empirical—suggest that users either do not read the agreements at all or quickly skim the documents without necessarily recognizing or understanding the contractual stipulations contained therein. Consequently, much of what Zuckerberg told Congress about his organization’s collection and use of user data, the privacy protections individuals have (or do not have), and the various tools by which to control these things are all stipulated in Facebook’s user agreement. But this was news to us, because most users never actually read the terms of the contract. We simply skipped over the complicated legalese and clicked on the big button labeled ”Create Account.”
What Does this Mean, and What Can We Do About it?
In the wake of Zuckerberg’s testimony and his revelations concerning Facebook’s ToS, the question we all must face is this: What now? I have three suggestions for how to move forward.
First, ToS’s are important and influential. These documents, which in the case of Facebook involve and apply to an estimated 2.2 billion users worldwide, represent a privatization of the political as individuals now form social affiliations under the sovereignty not of national governments located in geographically defined regions but multinational corporations that form and operate in excess of terrestrial boundaries. If declarations, constitutions, and national charters were the standard governing documents of the modern era, organizing and legitimizing the nation state as we know it, then it is the ToS that occupies a similar position in the postmodern era, articulating the foundation of social and political affiliations for a postnation-state, multinational polity.
Second, we can no longer ignore or avoid reading the ToS. Despite the fact that these governing documents prescribe and regulate the rights and responsibilities of both providers and users, dictating the terms and conditions of online social interaction and affiliation, many of us—even those who would self-identify as politically active—either ignore these texts as unimportant or dismiss them as a kind of “legalese” necessary to obtain access but not very interesting in their own right or worth serious consideration. But as we have seen in this recent crisis with Facebook, not reading the ToS is one sure fire way to stumble into a myriad of problems.
Third, being critical of a ToS or any other document governing operations in a social media platform does not mean that one simply opt-out or #DeleteFacebook. It would be naïve to expect that any social organization, whether in the so-called “real world” or in a virtual world, will be able to get everything correct right from the beginning. Instead of opting out, we can actively engage these new social systems, capitalizing on their opportunities while remaining critical of the limitations of their existing social contract and advocating for improvements. What is needed, therefore, is not mere opposition and abstinence, but rather informed involvement and critical participation. And this effort can and should be supported by appropriate federal and/or state regulations that recognize and can address the asymmetries of power that are already part and parcel of any ToS agreement. It is only by working together—users, service providers, and government—that we can begin to develop a ToS that does not suck.
David J. Gunkel is Distinguished Teaching Professor of Communication Technology at Northern Illinois University.
Gaming the System
Deconstructing Video Games, Games Studies, and Virtual Worlds
By David J. Gunkel
Series: Digital Game Studies
Available Fall 2018
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