Two years ago, MrGroove wrote about some privacy concerns he had about Google Picasa’s new name tags and facial recognition features and Facebook’s unethical practices around deleting your account vs. disabling it. Fast forward, and privacy issues revolving around Facebook and various photo sharing, facial recognition and photo tagging sites are front and center in the mainstream media—and for good reason. The amount, types and scale of information that online service providers collect about its users have all grown exponentially.
So although technology continues to grow more and more, introducing new and exciting services, it’s very important to be an informed consumer since this trend is only going to continue. So grab a cup of coffee and settle in as we explore some of the things an informed consumer should be educated about in this new high-tech culture we and our families are living in!
Let’s jump right into it shall we!
Disclaimer: I am not a lawyer and the below is not legal advice; it is simply informative reading with an aim to inform and possibly educate..
Editors Comment – Would love to hear from any of you groovyReaders out there who ARE layers however. 😉
Before we dive into the terms of service, there are some concepts and terminology that we should discuss:
User Privacy Settings and What Others Share
Most photo sharing sites are quick to remind you that how your personal information is shared is mostly up to you. Facebook users should know by now that you have to tweak your privacy settings to limit who can see your pictures and the visibility of photos where you are tagged. The fact that you have to be proactive about removing photo tags and opting out of public visibility is bad enough. But, what’s worse is that you have little to no control over what others share. Especially if you don’t even have a Facebook account. With this in mind I’m sure it’s only a matter of time before MrGrooves writes another “How-To lose your face with Facebook“… <smile>
The thing is, that people can and do submit information about you. And this information is collected by online service providers and used as they see fit. Take Windows Live Photo Gallery, for example. After using this for a few weeks, you’ll see how quickly the software learns to recognize faces automatically. Now, imagine that people on Facebook are tagging you in photos without your knowledge or approval. Facebook’s facial recognition software will quietly begin building up its database and before long, it’ll know you by your face (or your family). And from that point on, it’s out there. Who knows where, how, and by whom that biometric data will be used down the road. Just something to think about.
I don’t know what else to say about this overall. I don’t really have any recommendations about how to handle potential privacy issues like these, or whether you should even care. It’s just something you should be aware of whenever someone snaps a photo of you.
Talking to MrGroove about it, he cracked me up when he mentioned he’s not the most popular person at family and company parties since he usually starts things out by asking that none of the photos of MrGroove and his family be uploaded to social media sites without his permission. Paranoid? Witness Protection Program? FBI most wanted list? Or is he just thinking about the larger ramifications or pasting your face out there? Something again to ponder.
Many of the terms of services have similar elements. Most of them are functional, but several of them have potential for abuse or unintended consequences. As you review the terms of service, pay attention to clauses and terms that address the following topics:
Licenses to reproduce, modify or publicly display your photographs along with your name;sub-license.
Who has it?: Microsoft, Google, Facebook, Flickr
Why is it there?: This sounds scarier than it is. When you read the term, it sounds like they are giving themselves carte blanche to take your pictures, videos and any confessional poetry you’ve uploaded and plaster it all over any space that they own (which includes half the planet if you’re Microsoft or Google). But the real purpose of this term, and the reason why everyone has it, is so they can display your content to you, your friends and the public (if you so choose) on demand via the Internet. Without that worldwide license, you’d have to sign off your approval each time someone (including you) tried to look at your pictures they were hosting on their sites.
Sub-license however is an interesting word. Companies like gettyImages and iStockPhoto make millions daily licensing their stock photo collections world wide. Did you catch that? They “license” the photos, they don’t sell them….
How could it overreach?: The license to reproduce/republish your work is necessary to the dynamic nature of cloud-hosted pictures and photos. But the way these terms of service lay it out sort of leaves the door wide open. While the intention is to reproduce your work in connection to the service you signed up for, they could, theoretically, take your face and put it in commercials, print it on tote bags and draw a mustache on it and put you on a billboard without notifying you, paying you a cent or asking you for further permission. That’s what “royalty-free, perpetual and irrevocable” mean. Some companies (Microsoft, Yahoo!) relinquish this license once you delete your photos but others don’t, which seems completely unnecessary and unethical. Publicly display also gives them the license to take what might be private and display it publicly however a few of the sites limit this (Yahoo!, Microsoft) by saying if you don’t share it with anyone, it will remain private as intended (private email from Yahoo! I received).
Again, looking at the word sub-license below in the various terms of service, one might say companies like Facebook grant themselves the license to “Sub-License” the photos you upload (and grant them a license to) and since the license you grant them is Royalty Free and through the license you agree you have the right and consent to of the various people in the photos, the photo sharing companies could (might be stretching this one) make the argument that as they sub-license the photos to a 3rd party, there is no need to go back and collect model releases from everyone in your photos…
Mergers and Subsidiaries Clauses
Who has it?: Microsoft, Google, Facebook*
Why is it there?: Microsoft and Google make sure to give themselves leeway when it comes to sharing your pictures and content with subsidiaries. Also, almost all of these terms of service also extend these rights, licenses and sublicense to affiliates, subsidiaries and any company that might acquire the parent. This is necessary to some degree. For example, when Google acquired Picnik, that clause helped them integrate Picasa with Picnik without having you accept another set of terms of service .
How could it overreach?: Things always get sticky when content, intellectual property or entire companies change hands. Let’s say that Yahoo! gets bought out by a bunch of activist investors—all those Wall St. suits would then get your stuff, too. Or, if one of these companies goes bankrupt, then creditors may have dibs on your personal information, since these are considered assets. That last point has actually been argued in court, when the gay youth publication XY magazine went belly up and was nearly forced to break its promise to its subscribers not to reveal their identities.
It’s also a little suspect when Google gives itself license to share your content with companies with which it has a “relationship for the provision of syndicated services.” This effectively extends the right to use your content to companies that aren’t even owned by Google and may or may not adhere to their privacy policies or corporate ethics.
Subpoenas and Law Enforcement Inquiry Policies
Who has it?: Facebook, Yahoo!
Why is it there?: Your content may be incriminating. Or, it may simply be interesting to the federal government, your local police investigators or Homeland Security. When the government wants to take a peek at your account and anything in it, they send the online service provider a subpoena, or, in some cases, a National Security Letter. The fishy thing about the National Security Letter is that they come with a gag order which bars the recipient from talking to anyone about the investigation, including their attorney. As such, we don’t really know how common National Security Letters are. But subpoenas are common enough that many companies now include brief paragraphs about them in their privacy policies (note: not terms of service). They basically say: “If the government, the police or any other legitimate organization asks us for information about you, we’ll comply quietly and hand it over.” That may sound reasonable—after all, why should Facebook go to bat for you to protect your civil liberties? They don’t owe you anything.
But the interesting thing is, if you were an anonymous interview source, and a journalist got subpoenaed to give up your identity, they probably would refuse to sell you out as a principle of media ethics. There are even some laws and precedents that uphold the protection of anonymous sources.
Some online service providers, such as Twitter and Nicholas Merrill, have taken the higher road and taken a strong stance against shady government subpoenas and super secret investigations. But don’t expect all online service providers to be so noble.
How could it overreach?: The danger of an online company that buckles like a folding chair under government pressure is that it might encourage an overzealous national security agency to go on “fishing expeditions.” That is, they might just go sniffing around your private and/or personal information without probable cause or anything more than a hunch. And because they aren’t accountable to anyone, who’s going to stop them? It’s sort of the digital equivalent of the case where police knocked on the door of an apartment where they thought they smelled marijuana and then broke in after they heard movement inside because they feared the imminent destruction of evidence. So, what if Homeland Security saw that you were (perhaps erroneously) tagged on Facebook among a crowd of anarchists at a G-8 Summit protest, so they decided to break in to your account just to check to see if you’re a terrorist. Let’s say while they are there, they find a drunken, tongue-in-cheek tirade you wrote to your friend on April 15 about how cheesed you were about your taxes and how you were going to car bomb the IRS. Next stop: Gitmo.
Maybe that’s an extreme example, but the risk is there. Luckily, there are some good people working on educating ISPs and other tech companies about their rights and yours.
Use of Metadata Policies
Who has it?: Flickr, Facebook
Why is it there?: Metadata is information that’s embedded in a picture file that may have been tacked on by your digital camera, your photo editing or photo organizing software or some other application. It’s kind of like the ID3 tags on an MP3 that package up the artist name, album name, song name, etc. with a song. Photo sharing sites use this information to make importing easier, but they might also use it to collect marketing data.
How could it overreach?: If you weren’t even aware that metadata existed, it’s also possible that you don’t know what’s in your metadata. What about pictures taken with your phone? What gets put in there? Your personal information? Your geographic location (you betcha)? Information about your contacts or wireless account? Either way, if it’s in there, the photo sharing site gets it when you upload it. And what they do with it is up to them. It’s like if you brought your shirt to a dry cleaner and they picked off an eyelash and used your DNA to create a clone army. Maybe it’s not like that at all, though…(why would a dry cleaner need a clone army?).
But the point is that you should know what else your uploading in the form of meta data. And better yet, you ought to just remove all personal meta data from your files before uploading.
Who Should I Trust?
How you interpret the terms of service of each of these companies is up to you. But personally, I might go with Microsoft or Flickr! There are two key things that I like about their terms of service. One, the fact that they come right out and say that they do not claim ownership of the materials you upload. (Granted, so does Facebook.) But they also delineate when the licenses are terminated, which is when you delete your content or stop using their services. I also like Flickr’s attitude about privacy, which they established long before the controversy around photo sharing privacy really heated up.
With all that being said, I do use Picasa and Facebook. Do I think anything bad will happen to me? Probably not, but then again I mostly upload pictures of my cat, and if the government or anyone else really wants to see the dozens of pictures I’ve taken of Mr. Whiskers… I’ll leave it at that.
With all that being said, let’s take a look at some of the choice bits of the terms of service from each of the companies in question. I’ve excerpted the most interesting parts below and added my own emphasis. Check it out:
Microsoft Terms of Service – Last Updated March 2007
MATERIALS PROVIDED TO MICROSOFT OR POSTED AT ANY MICROSOFT WEB SITE.
Microsoft does not claim ownership of the materials you provide to Microsoft (including feedback and suggestions) or post, upload, input or submit to any Services or its associated services for review by the general public, or by the members of any public or private community, (each a “Submission” and collectively “Submissions”). However, by posting, uploading, inputting, providing or submitting (“Posting”) your Submission you are granting Microsoft, its affiliated companies and necessary sublicensees permission to use your Submission in connection with the operation of their Internet businesses (including, without limitation, all Microsoft Services), including, without limitation, the license rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; to publish your name in connection with your Submission; and the right to sublicense such rights to any supplier of the Services.
No compensation will be paid with respect to the use of your Submission, as provided herein.[…]
Google Picasa Web Albums Terms of Service – Dated April 2007
11. Content license from you
11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.
11.2 You agree that this license includes a right for Google to make such Content available to other companies, organizations or individuals with whom Google has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.
11.3 You understand that Google, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit Google to take these actions.
11.4 You confirm and warrant to Google that you have all the rights, power and authority necessary to grant the above license.
Facebook Terms of Service – Revised October 2010
Sharing Your Content and Information
You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:
- For content that is covered by intellectual property rights, like photos and videos (“IP content”), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (“IP License”). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
- When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
- When you publish content or information using the “everyone” setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).
- We always appreciate your feedback or other suggestions about Facebook, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them).
Protecting Other People’s Rights
We respect other people’s rights, and expect you to do the same.
- You will not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law.
- We can remove any content or information you post on Facebook if we believe that it violates this Statement.
- We will provide you with tools to help you protect your intellectual property rights. To learn more, visit our How to Report Claims of Intellectual Property Infringement page.
- If we remove your content for infringing someone else’s copyright, and you believe we removed it by mistake, we will provide you with an opportunity to appeal.
- If you repeatedly infringe other people’s intellectual property rights, we will disable your account when appropriate.
- You will not use our copyrights or trademarks (including Facebook, the Facebook and F Logos, FB, Face, Poke, Wall and 32665), or any confusingly similar marks, without our written permission.
- You will not post anyone’s identification documents or sensitive financial information on Facebook.
- You will not tag users or send email invitations to non-users without their consent.
Content. One of the primary reasons people use Facebook is to share content with others. Examples include when you update your status, upload or take a photo, upload or record a video, share a link, create an event or a group, make a comment, write something on someone’s Wall, write a note, or send someone a message. If you do not want us to store metadata associated with content you share on Facebook (such as photos), please remove the metadata before uploading the content. This metadata includes geo-location tags (GPS Coordinates) of pictures taken using devices that support it, such as the iPhone, Android, and other Smart Phones.
To respond to legal requests and prevent harm. We may disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matters) if we have a good faith belief that the response is required by law. This may include respecting requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law under the local laws in that jurisdiction, apply to users from that jurisdiction, and are consistent with generally accepted international standards. We may also share information when we have a good faith belief it is necessary to prevent fraud or other illegal activity, to prevent imminent bodily harm, or to protect ourselves and you from people violating our Statement of Rights and Responsibilities. This may include sharing information with other companies, lawyers, courts or other government entities.
Flickr (Yahoo!) Terms of Service – Dated November 2008
CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE YAHOO! SERVICES
Yahoo! does not claim ownership of Content you submit or make available for inclusion on the Yahoo! Services. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services, you grant Yahoo! the following worldwide, royalty-free and non-exclusive license(s), as applicable:
- With respect to Content you submit or make available for inclusion on publicly accessible areas of Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purposes of providing and promoting the specific Yahoo! Group to which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Yahoo! Services and will terminate at the time you remove or Yahoo! removes such Content from the Yahoo! Services.
- With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Yahoo! Services and will terminate at the time you remove or Yahoo! removes such Content from the Yahoo! Services.
- With respect to Content other than photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed.
“Publicly accessible” areas of the Yahoo! Services are those areas of the Yahoo! network of properties that are intended by Yahoo! to be available to the general public. By way of example, publicly accessible areas of the Yahoo! Services would include Yahoo! Message Boards and portions of Yahoo! Groups and Flickr that are open to both members and visitors. However, publicly accessible areas of the Yahoo! Services would not include portions of Yahoo! Groups that are limited to members, Yahoo! services intended for private communication such as Yahoo! Mail or Yahoo! Messenger, or areas off of the Yahoo! network of properties such as portions of World Wide Web sites that are accessible via hypertext or other links but are not hosted or served by Yahoo!.
If you take anything away from this post, I’d hope it’d be the compulsion to read through the terms of service before signing up for anything, no matter how benign it may seem. I won’t discourage you from using the truly groovy web services that are available to you —I certainly do—but I do urge you to be informed about your rights and which ones you’re waiving or granting as you do so. And remember, nothing is truly free, there is always a price and in this case it is your privacy.