Facebook’s Instagram caused an uproar when it modified its Terms of Service. With the changes, Instagram more clearly spelled out its rights to use your data for profit, leading many to the reasonable conclusion that on the modern Internet, you don’t own anything anymore. To quell the protest, Kevin Systrom, the cofounder of Instagram, took to the company’s blog to clarify what the new Terms of Service meant and blamed the legal documents for the confusion. Instagram then reverted the advertising section back to its original terms of service.
Maybe Systrom has a point. Why can’t Instagram — and Facebook and Google and Twitter — write their Terms of Service in plain English? Well, they could.
Nearly everyone in the legal profession says that they strive to write in plain English. Every lawyer thinks he or she is Steve Jobs, simplicity and clarity their cardinal virtues. And then we get Terms of Service like this:
To help us deliver interesting paid or sponsored content or promotions, 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 you take, in connection with paid or sponsored content or promotions, without any compensation to you.
Plain English can do it all. Instagram could have written: “We will not sell your photographs for use in any advertisement. We will sell the right for companies to display that you ‘follow’ them on their profile page and to your friends. If we invent a new way to Instagram, this contract still applies.” Plain English can do this — and it can do this even when we Instagram in space. Companies and their lawyers simply don’t want to.
Terms of Service are contracts between companies and their customers that establish the rules that both must follow as the company provides (and the customer uses) a service. Since the relationship is ongoing, companies want to make sure that you are behaving when you use their service, and you probably want to understand what the company can and cannot do to you in exchange for the service. We typically agree to Terms of Service with companies that are going to provide us with a continuously operating service. So you’ve probably agreed to terms of service for your television, your Internet, your electricity and heating — as well as your Facebook and your Xbox Live and your Twitter.
You might think that Terms of Service have to be written in legalese. First, the law is complex. The best lawyers often think in flow charts: “If Instagram has these rights, then the user has these rights, unless the user does this, in which case Instagram can do this, until the government gets involved, in which case this happens.” This does not lend itself to simple writing. And ambiguity is bad — especially for the party writing the contract. In the United States, if something is unclear, a judge will typically “construe the ambiguity against the drafter” (the judge will interpret it in a way Instagram doesn’t like). This gives lawyers an incentive to write like clunky bastards.
The law also builds on itself. Cases and statutes define terms and whether those terms are enforceable. So a lawyer may want to go back to the language first used in a case from 1880 if that language has an unbroken string of victories attached to it — even if nobody speaks like that today. You see this in Instagram’s “Disclaimer of Warranties” section, which is basically the sentence “We can’t promise you nothing will go wrong” run through the legal thesaurus 16 times.
Meanwhile, company executives typically instruct their lawyers to make sure that the company gets the most rights and protections possible — and exposes them to the least risk possible. This is what inspired the famous “cosmic” clauses protecting copyrights from “technologies known or unknown, in perpetuity, throughout the universe.”
Still, some companies have tried to go half-way. Tumblr, for instance, preserves the traditional legal language while offering plainspoken explanations. Why don’t more companies do this? Or, better yet, write the entire Terms of Service in plain language? If the clients are asking for plain language, their lawyers are being cautious and conservative, advising them that there would be a risk associated with leaving the old ways behind.
But that advice is misplaced.
The bottom line may be that these companies do not prioritize this aspect of the user relationship. The pattern is familiar now: After every Internet uproar, a Lord of Silicon Valley will write a blog post and explain that they never intended to own your photographs or sell your every location to the highest bidder or declare your relationship status updates Brought To You By The Trial-Size Dove Bar. Mark Zuckerberg or Kevin Systrom will explain in plain terms what they intend to do — and what they don’t. And usually that makes us feel a little bit better. But if the executives really wanted to, they could tell their lawyers to write a plain Terms of Service. And then we’d understand what we are getting into, and whether we are signing our online lives away. There is no reason for the innovation to stop once the lawyers show up.
An advocate for the Digital Age, Michael Phillips is an associate at a Wall Street litigation boutique (though he is not your attorney and this piece does not constitute legal advice for you!). He has been called a “thick-haired man” by the New York Times.
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