Moment that mattered: Instagram changes its terms of service

“The thing that really riled people about Instagram’s terms of service update was that it seemed that the company might assert the right not just to republish people’s photos as they saw fit, but also to use them in ads or sell them if they chose. This was particularly contentious since Instagram’s early user base included many ‘refugees’ from Facebook and other sites which had been ramping up aggressive advertising and rolling back user privacy. Once Facebook bought the company, those users were just waiting for it to happen all over again.

In the past few years, as people have increasingly come to depend on sites and mobile services for their communication, they have begun to recognise the importance of the terms of service and privacy policies. Typically these policies extract sweeping and powerful concessions from the user, and can change at any time without notice. This is so important that we at Docracy made our own ToS tracker.

Every day we download a copy of all the policies we track (989 at time of writing). We extract the legal content and use our differencing algorithm to compare it to the current copy we have on record and highlight any changes. Within three weeks of the service launching we saw at least one change in 119 of the 989 policies – that’s 12 percent in less than a month! Some are very small, others are complete overhauls, but a general trend swiftly emerged that the vast majority of changes take away rights from the user, and rarely give anything back. The result is that these policies are becoming more draconian, inch by inch, under our noses. One recent example we tracked, for example, was the removal of the line “We do not knowingly collect personal information from children under 13” from Playfirst.com’s terms.

The most chilling conditions pertain to the indefinite storage of personal data. You can even find examples where the companies reserve the right to continue to archive this data after the user has deleted their account. Another interesting recent one was when Skype introduced a change that contained some language to the effect that Skype users couldn’t take legal action against the company (“a binding arbitration clause and class action waiver affects your rights to resolve a dispute with Skype, its corporate affiliates, or other third parties including mobile phone carriers”). However they went back to their old version a few days later. This all happened silently within the span of about ten days, and we are somewhat proud to have this on record as it otherwise would probably have slipped by unnoticed. Skype hasn’t changed its Terms of Use document since then, but these changes may yet return.

It might help if companies were required to report all changes to their users, but I don’t think it would be a silver bullet. Users would be drowned in notices, and the policies would grow even larger and more opaque, so that secrecy-through-boredom would win out in the end. We think it is up to journalists and watchdog organisations to seek out and report on these complex and nuanced issues. We expect that it will be these entities that form the long-term user base for our service, and we hope that with it we can help them get the word out. Our message to ToS abusers is simple: we’re watching!”

John Watkinson is co-founder of Docracy, the web’s only open collection of legal contracts. The ToS tracker is at
www.docracy.com/tos/changes. 

Posted on Thursday, October 26th, 2023 - Categories: #9 - Oct-Dec 2012, App Issues.