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Nowhere was the public’s failure to understand digital privacy on more prominent display this week than Democratic Senator Chuck Schumer’s letter to the FBI requesting a formal investigation of FaceApp over its privacy practices. Chief among Schumer’s concerns? That FaceApp’s terms of service requires users “to provide full, irrevocable access to their personal photos and data.” The problem is that far from some nefarious clause unique to FaceApp, such language has become almost boilerplate on the modern Web, with almost every Website and mobile service we use granting itself the right to our data and even brick and mortar businesses increasingly monetizing our in-person activities. While FaceApp has been getting attention due to its Russian provenance, the reality is that its terms of service that the media, pundits, policymakers and the public have honed in on is actually ubiquitous today.
There is deep irony in Schumer’s use of Twitter, a social media platform, to criticize FaceApp’s privacy policy.
Twitter’s own terms of service note that “You understand that through your use of the Services you consent to the collection and use (as set forth in the Privacy Policy) of this information, including the transfer of this information to the United States, Ireland, and/or other countries for storage, processing and use by Twitter and its affiliates” including “the type of device you’re using and your IP address … email address, phone number, address book contacts, and a public profile … your current precise position or places where you’ve previously used Twitter” and countless other fields.
Similar to FaceApp, Twitter notes that by using its services “you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed)” including the right for Twitter to make “to make Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services.”
Twitter and FaceApp are hardly alone. Such language has become the defacto standard of the modern Web.
Even startups with no interest in user data typically include such language to protect themselves from legal action regarding the fact that the process of displaying user content may be considered “publication” in certain legal jurisdictions, while the redundant storage of user content in multiple cloud data centers around the world for backups and caching means content frequently moves across national borders in ways that can cause conflict under certain legal systems.
Thus, such language is found in almost every modern commercial Web service regardless of its interest in user data, merely as a means of protecting itself legally.
At the same time, such contracts provide companies legal cover if they ever decide to monetize their user data in the future.
Facebook has repeatedly pointed to its own terms of service in noting that it has the legal right to conduct user research and make user data available to academics across the world to mine and manipulate.
The fact of the matter is that all companies grant themselves these rights.
The fact that Schumer would single out FaceApp for requesting these rights and how much media coverage FaceApp’s terms of service have received reminds us how little policymakers and the press are aware of just how many rights we sign away when we use the Web.
It is particularly notable that amidst the privacy furor over FaceApp there has been no comparable discussion of the terms of service of other major mobile and Web platforms, such as the social media companies themselves. After a year and a half of Cambridge Analytica coverage, the fact that Facebook’s terms of service have received little mention amidst the current furor reminds us that the FaceApp story is not about privacy, it is about Russia.
Putting this all together, the public, press, pundit and policymaker interest in FaceApp’s terms of service reminds us how little we understand about the legal rights we give up to use the Web, turn on our phones or even enter a store.
In the end, privacy is dead and we don’t seem to care.
