[conspire] terms of service, illustrated

Rick Moen rick at linuxmafia.com
Tue Aug 30 11:26:31 PDT 2011

Quoting Tony Godshall (tony at of.net):
> On Mon, Aug 29, 2011 at 2:23 PM, Rick Moen <rick at linuxmafia.com> wrote:
> > Given that you're also a Facebook user,
> Am I?  Yeah, I think I set it up one time.

Well, you were talking about stuff on Facebook, anyway.

> Are you on a social network, Rick?  Or is this third-hand.

When I say 'Not as pestiferous as LinkedIn', I'm referring to the deluge
of spam _from_ LinkedIn to everyone else on earth, inviting the targets
to join George Tirebiter's 'network'.  (These are particularly
unforgiveable when, say, a volley of them hit twenty lists.baycon.org
mailing lists.)

No, I do not use LinkedIn -- but you didn't correctly read what I wrote.

> So much lawyerese in contracts is worst-case stuff, it's really
> not surprising people didn't take it that seriously until it was
> implemented.  There's so much contractual stuff to wade through
> these days, it's hard to function.

Actually, contracts are probably a great deal more pervasive when you
think, as most of them aren't even in writing at all.  Contracts can be
(and are, every day) formed and completed, or broken, orally or by
conduct of the parties.

As it happens, _written_ contracts tend to have an extremely regular
form on the whole, such that -- once you've gotten to know the general
patterns --  you don't generally need to read all that attentively in
order to spot the peculiar and outrageous terms like the one where
Amazon.com arrogated to itself the right to retroactively remove files
from customers' Kindles.

> I've often thought it would be interesting to study law and
> find out how these kinds of issues really hash out in the
> real world.  But then you'd have to deal with lawyers more
> than we already do.  And we all know that's not much fun.

I _have_ studied quite a bit of law, both for its own interest and as
groundwork for taking and passing the CPA exam.  One of the long-term
benefits is that doing so that it helps you _avoid_ dealing with
lawyers (by being able to do elementary legal self-defence without their
help or expense).

['established business relationship':] 

> Even after you give up the "service".

Here's a discussion of the administrative law (FCC-issued) about
telemarketing.  I imagine law about e-mail and other
customer-relationship details (user tracking, etc.) would be similar:

  The TCPA [Telephone Consumer Protection Act] provides an exemption
  from the restrictions on telephone solicitations for calls made to
  someone with whom the caller has an established business relationship.
  An established business relationship (EBR) lasts for 18 months after a
  purchase or transaction, or 3 months after an inquiry or application.

  The FCC clarified that for financial agreements (including bank
  accounts, credit cards, loans, insurance policies and mortgages), the
  EBR lasts for as long as the financial agreement lasts, plus 18 months
  after the end of that agreement. For example, a bank will have an EBR
  with a customer who has an open bank account for as long as that account
  is open, even if there have been no transactions within the last 18
  months, and such EBR will last an additional 18 months after the account
  is closed. The FCC said that financial agreements constitute an ongoing
  relationship, even if there are no transactions, for as long as the
  agreement is in effect, and that customers should not be surprised to
  receive a call about new products or services during the term of the
  agreement. Of course, consumers can terminate the EBR for purposes of
  telemarketing calls at any time by requesting that they be added to the
  company's own do not call list. 

I have not researched the fine details, but that's the general shape of

> > Moreover, it is an unusually one-sided 'established business
> > relationship' in which the Web 2.0 company has extremely
> > minimal-to-nonexistent obligations of fair dealing and due diligence
> > towards its customers, because they are not paying for it.  (I'm not
> > sure that point's been adjudicated, but think at minimum the writing's
> > on the wall.)
> I'll watch for that.

The way I've finally found to make the point clear to people is:  If
you're not paying for a 'service', e.g., GMail or any of the other
no-cost-to-use services, then you are _not_ the customer.  You are the
product.  You are being sold to the company's _actual_ customers.

[Cory Doctorow:]

> Did you see him on the panel at Renovation on the last day?  He was a
> lot more cogent than the rest, I though.

Yes, I think I did.  I saw him on a number of panels.  

The real pleasant surprise was the two-person panel on online privacy
with David Brin and Brad Templeton.  Though Templeton's certainly a
qualified expert on the subject, he needs a razor-sharp provoacteur like
Brin to wake him up and make him engage with the subject rather than go
on autopilot.  Brin continues to have excellent points on the
intersection of security, privacy, and politics.

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