Facebook: Not in the Clear

You can’t please all the people all the time. But has Facebook, in opening a public “comment period” on its new and improved, proposed terms of service, assuaged the groups who cried foul over its previous changes to the contract?

Not exactly. I spoke with the two individuals whose protests had arguably the most impact on the social networking site’s decision to back down, Julius Harper and Marc Rotenberg. Both are happy with the fact that Facebook is listening to its users and acting on the feedback they submitted – particularly that the company made explicit the ability to permanently delete your uploaded content upon leaving the site. And both recognize Facebook’s effort to establish a democratic-like contract with its customers as an unprecedented move for any Web site.

But for different reasons, Harper and Rotenberg are not content to pat CEO Mark Zuckerberg on the head and walk away from the matter just yet.

A 25-year-old resident of Los Angeles, Julius Harper led more than 100,000 Facebook users into revolt by creating and managing a group on the site, “People Against the new Terms of Service (TOS)” in mid-February. When the company gave in, it called upon Harper to organize the thousands of complaints being lodged by users and culling out the most significant areas where Facebook should make changes to its contract.

Overall, Harper is impressed with Facebook’s timely, well-managed response. “They could have let it die down until people forgot about it, but they went back to this the week after they said they would,” he says. The new proposed terms of service satisfy two of the three main concerns he gathered from users: that content licenses should expire when a user leaves the site, and that the contract should be written in plain English.

Facebook’s solution to the third suggestion from Harper’s group – that further changes to the terms must be cleared and voted on by users – is suspect. According to the company’s proposal, any controversial change to the contract would be put to a vote with users: If 30% of the site’s active users motion against the change, or for an alternative, the company will be bound to the results of the vote.

Going by the site’s current standing of 175 million active users, that would mean 52.5 million users must vote in agreement to make a difference. If that doesn’t sound like a huge number to you, ask John McCain: the Senator received 60 million popular votes in the November elections and didn’t come close to being elected President. “I don’t think tens of millions of Facebook users would opt in to any poll,” says Harper.

Facebook’s response? “If they know they have a voice, maybe they would have more incentive to use it,” says Barry Schnitt, a spokesperson for the company. Still, he admits it’s a high number and says that the company would face significant pressure to respond to any large number of votes short of the 30% mark, regardless.

Marc Rotenberg heads the Electronic Privacy Information Center (EPIC), the Washington-based consumer advocacy which announced in mid-February that it was preparing to file a complaint against Facebook with the Federal Trade Commision. On Feb. 17, the company contacted Rotenberg, and he told them his group would drop the complaint if the site reverted to an older version of its terms of service. The next day, they did.

While Rotenberg applauds Facebook on what appears to be a “commitment to greater inclusiveness and greater participation,” he remains concerned that the company is not doing enough to tell users what it intends to do with the data it collects about their activities – data which could some day be sold to advertisers. “I still think privacy continues to be the key concern for Facebook users and I don’t think the issue is going away,” he says.

Rotenberg and EPIC aren’t planning any formal review of the proposed terms of service, but he says the group will certainly keep these issues on its radar. “We always hold up the possibility of going back to the FTC,” he says.

What’s everyone else saying about the proposed new terms? Blogger Jeff Jarvis tells me that the comment period and group vote are a positive step, but shouldn’t be mistaken for mob rule: “It's not an act of democracy but an act of listening,” he says.

David Ardia at Harvard’s Berkman Center for Internet & Society points out two little-noticed changes to the terms – one good and one with unclear ramifications. A clause which used to say that any disputes users have with the terms of service must be settled in binding arbitration – a process which usually favored the Web site – has been changed to say that users now have the benefit of taking disputes to the courts of California’s Santa Clara County. “It levels the playing field to some extent for users who have complaints,” says Ardia.

And he points to a clause which seems to negate the entire opt-in, voting system Facebook is promoting so heavily. It reads: “We can make changes for legal or administrative reasons upon notice without opportunity to comment.” According to Ardia, this leaves some wiggle room for the company. “Administrative reasons? That’s an ambiguous phrase that could mean pretty much anything they want to do,” he says.

Facebook’s Schnitt says that this clause is necessary so that the site can make minor and insignificant changes to the document, such as changing the address of its office, or coming into compliance with some new law. Besides, Schnitt says, “Is it reasonable to suggest that we’ve gone through all of this so we could sneak something else by?”

To see the new terms of service and read how users are reacting to it, click here. That’s the place to make your voice heard before Facebook’s 30-day comment period closes on March 29. Of course, we’d also like to hear your reactions to the new document in the comment section below.

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