Instagram's New TOS: On Data, Privacy and Fine Print
By alexash on December 20, 2012
BlogHer Original Post
On Monday, Instagram offered users a look at the upcoming changes to the Terms of Service. Users were not pleased. Instagram always had rights to images, so was it the TOS wording or a TOS carrying Facebook’s legacy of privacy concerns that made the new fine print so concerning? In less than 24 hours, Instagram issued a statement the TOS changes weren’t set in stone. It reminded me of things I’d seen before. On Facebook.
In May of this year, I wrote several posts after screenshots of Instagram’s TOS went viral. The TOS had not changed. At all. But many people were getting their first look at what they had agreed to long before. They’d just never read it.
The unveiled TOS, which goes into effect January 16, included language that informed users “a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take.”
As a reader of fine print, I went to the source. Near the top, the update states the following in ALL CAPS bold letters:
“ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND INSTAGRAM WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.”
I couldn’t help but wonder WHY ARE THEY SO WORRIED I MIGHT WANT TO SUE THEM?
Much of the TOS was standard, but the paragraph under RIGHTS stating “you agree that a business or other entity may pay us,” to use your info didn’t sit well with many users. Some it felt an invasion of privacy (somewhat unfounded since they agreed to allow them some use of images the moment they joined Instagram). Others didn’t like hearing this would be done “without any compensation.” As a photographer who often argues for the importance of copyright respect online, I think this gave people some understanding of what content creators feel when they find their work unlawfully pinned or used without permission across the web. Only there isn’t anything illegal here. Permission is granted.
For some, this was the first realization of what they agree to share with most social sharing sites, but IG used wording that puzzled even those who understand what rights regularly we waive. In the next section it stated:
“You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.”
Undisclosed ads? This didn’t seem right. While many users are still clicking and agreeing without reading, there is now a large community, much of which I see in the blogosphere, that not only read TOS but understand things like FTC disclosure. The FTC and Facebook don’t have the greatest track record.
Just over a year ago, Facebook settled with the FTC after “charges that it deceived consumers by telling them they could keep their information on Facebook private, and then repeatedly allowing it to be shared and made public.”
Is it surprising that people read the new legalese and imagine how far Facebook could take things? Show us we’re wrong, Mr. Zuckerberg.
Or should I say, Mr. Systrom. In a post on the IG blog Tuesday, explaining that they’re stepping back to reconsider the new TOS, it wasn’t Zuckerberg talking. He’d been the one to make the announcements about what he was doing with Instagram when Facebook bought it in April, but this post was by Kevin Systrom, co-founder of Instagram.
It answered a question friends and I considered just hours prior. How must the founders feel about the Facebook-ing of their platform? Perhaps they’d walked away knowing this was inevitable or worried as they watched their devoted users unhappiness. What never crossed our minds was that they would be part of these changes.
Instagram has it’s issues, but for the most part it is all based on a users trusting one another often with their most intimate moments. They welcome them other users their homes, to their celebrations and their sorrows. Amidst daily outfit posts and food styled to the nth degree, there are births and breakups, school plays and weddings. No one adds a filter to these moments with the intent to have them used without their permission. And now, Instagram is asking permission to profit on it.
The number of users making plans to go elsewhere led them to respond rather quickly. On Monday, I tweeted several times that Copygram makes it very easy to download a zip file of all of your Instagrams. Yesterday, The New York Times wrote that Copygram “estimated that 10,000 people were using the exporting tool, and 1.5 million photographs had been backed up.” In a day that was huge for Copygram and other download sites, but the article reminds us that Instagram has over 100 million users.
Maybe this comes at a turning point in social media. Perhaps Instagram underestimates the intelligence of its users. In the next 30 days, we’ll see how much changes.
Many people (myself included) are more than willing to pay a monthly fee for an ad-free Instagram or have banner ads. I wonder if the amount of money they could make with subscribers or banner ads isn’t as enticing as the potential for what our data can bring them.
When Facebook purchased Instagram, I couldn’t understand the price tag. I hadn’t considered the value in it. What we’re eating, what we’re wishing we could buy, what color is on our nails, what shoes are on our feet, where we’re vacationing - Instagram is place where we share what we like. Data mining, Facebook’s greatest resource, is all about figuring out what we like. Valuable, yes. Maybe priceless.
Is data mining bad? Not inherently. Is it all good? I don’t think so, as I explained when I wrote about filter bubbles and tailored searches. We need opt outs.
I think many with public accounts didn’t consider the level of private they share publicly until Monday. As I wrote in May, photos of their kids in the bath or their grandmother’s funeral aren’t things they’d make a hundred thousand copies of at Costco and hand out to strangers, but virtually they do. When it becomes possible that those moments could be seen as assets, emotions run high.
People argue whether it’s right that these things can be monetized, but no one is forcing anyone to share this way. Yet people struggle because we like the filters and we like the followers. Both do things cognitively that makes us happy.
Online we justify so many things that we never would in real life. The speed at which social media moves has us so excited to test and try, to not feel left out or worse, out of touch, so we click and agree with abandon. Maybe Facebook has overstepped so much that we now need to pull away while we seek to find out how much of ourselves we’re willing to offer in exchange for pretty little pictures.
The homepage of Facebook says, “Sign up. It’s free and always will be.” Free, it seems, is a relative term. The issue isn’t all black and white, but we can’t put a pretty filter on it and expect it to be fixed either.
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