by Paul Jacobson (@pauljacobson) Between Facebook and Google, these two companies have voluntold[1] us that we are now part of their sales teams.

Paul JacobsonIt started with Facebook’s announcement on 29 August 2013 that it intends amending its Statement of Rights and Responsibilities (I’ll call it the “Statement” below) and the Data Use Policy, which included an expanded section describing what personal information it intends using, essentially, to sell products and services using you to make that happen.

Important to note

Before I go into more detail, it’s important to note something about how these policy changes bind you.

Whenever services such as Google and Facebook explain changes to policy frameworks and their terms and conditions, they explain that they won’t use your personal information in certain ways unless you give them permission to do so. They don’t but this is really just a ruse.

You have already given them permission when you signed up to use the service and your permission takes the form of privacy policies that include your agreement that they can amend the policies and other terms and conditions pretty much at will.

If they are going to be truly transparent, they should say something along the lines of — unless you give us your permission to do so (which you have already, so thanks for that)

Underlying dynamic

The underlying dynamic that likely drives Facebook’s and Google’s amendments to their policy and terms frameworks is that we users tend to place more value on recommendations from our friends and family. Facebook and Google’s advertising and promotional models (as well as a number of other services that personalise ads) are increasingly designed to manufacture these recommendations using our activities on the various services without the need for us to actively apply our minds to what we are recommending and what we choose not to.

At the moment, the dominant model is one in which we choose to signify our approval of a brand, product or service by liking or +1’ing it. These changes start to make those actions less important as a recommendation signal and are made possible through contractual models which include privacy policy frameworks and terms and conditions.

How you are selling for Facebook

The current Statement includes the following clauses dealing “About Advertisements and Other Commercial Content Served or Enhanced by Facebook” — Our goal is to deliver ads and commercial content that are valuable to our users and advertisers. In order to help us do that, you agree to the following:

  1. You can use your privacy settings to limit how your name and profile picture may be associated with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. You give us permission to use your name and profile picture in connection with that content, subject to the limits you place.
  2. We do not give your content or information to advertisers without your consent.
  3. You understand that we may not always identify paid services and communications as such.

Note that you have already given your permission for Facebook to use “your name and profile picture” in connection with ads and sponsored content.

New proposed version

The new, proposed version, goes even further and may (it hasn’t been finalised yet) state the following:

Our goal is to deliver advertisements and other commercial or sponsored content that are is valuable to our users and advertisers. In order to help us do that, you agree to the following [2]:

1. You can use your privacy settings to limit how your name and profile picture may be associated with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. You give us permission to use your name, and profile picture, content, and information in connection with commercial, sponsored, or relatedthat content (such as a brand you like) served or enhanced by us, subject to the limits you place[3]. This means, for example, that you permit a business or other entity to pay us to display your name and/or profile picture with your content or information, without any compensation to you. If you have selected a specific audience for your content or information, we will respect your choice when we use it.

If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to the terms of this section (and the use of your name, profile picture, content, and information) on your behalf.[4]

  1. We do not give your content or information to advertisers without your consent.
  2. You understand that we may not always identify paid services and communications as such.

Other changes

The other changes to the Statement addressed issues such as software installation, dispute resolution and a reminder that using mobile data could incur charges. The proposed changes to the Data Use Policy are pretty extensive and you have to read through the whole document to get a sense of the overall picture. For example, one of the edited clauses states the following:

As described in “How we use the information we receive,” We we also put together data from the information we already have about you,and your friends, and others, so we can offer and suggest a variety of services and features. For example, we may put together data about you to determine make friend suggestions, pick storieswhich for friends we should show you in your News Feed, or suggest people you to tag in the photos you post. We may put together your current city with GPS and other location information we have about you to, for example, tell you and your friends about people or events nearby, or offer deals to you in which that you might be interested in. We may also put together data about you to serve you ads or other content that might be more relevant to you.

Further down the marked up Data Use Policy, under part IV, one of the paragraphs begins with the following:

When we deliver ads, we do not share your information (information that personally identifies you, such as your name or contact information) with advertisers unless you give us permission.

Interesting read

It then goes on to describe how Facebook personalises ads. It is a very interesting read because it describes, in a fair amount of detail, how Facebook uses your personal information to sell relevant ads.

It is a powerful model and the proposed changes to allow Facebook to incorporate more of your personal information into what are effectively personal endorsements is likely to be even more lucrative for Facebook.

The comment period for these changes closed on the 7th of September and we will have to wait and see to what extent these proposed changes will be applied. Of course, these changes are not isolated. Facebook made a number of additional announcements recently which reinforce this trend.

Innocuous first change

The first change was fairly innocuous. On 30 September, Facebook published a post titled “Graph Search Now Includes Posts and Status Updates” which is fairly self-explanatory —

Starting today, Graph Search will include posts and status updates. Now you will be able to search for status updates, photo captions, check-ins and comments to find things shared with you.

Search for the topics you’re interested in and see what your friends are saying, like “Dancing with the Stars“ or ”Posts about Dancing with the Stars by my friends.”

Attracted more interest

The next announcement, which attracted more interest, was the one on 10 October which was styled as a reminder and is titled “Reminder: Finishing the Removal of an Old Search Setting” –

Last year we announced the removal of an old setting called “Who can look up your Timeline by name?” along with new controls for managing content on Facebook.

The search setting was removed last year for people who weren’t using it. For the small percentage of people still using the setting, they will see reminders about it being removed in the coming weeks.

Whether you’ve been using the setting or not, the best way to control what people can find about you on Facebook is to choose who can see the individual things you share.

Even more becomes accessible

More publicly shared profile data, coupled with all that profile data being indexed by Facebook’s powerful Graph Search, means that even more users’ personal information becomes accessible for use in personalised ads, with the only limitation being selective sharing by choosing whether to share updates publicly or friends (this can be further delineated using friends lists, if you use them).

Assuming Facebook’s proposed changes to its Statement and Data Use Policy are implemented (and they likely will be, in some form or another), you can expect even more personalised ads that include what appear to be more personal recommendations from your Facebook connections.

It is both very sneaky and, at the same time, very clever and you have agreed to this (whatever this turns out to be) already.

Yes, you work for Google, too

Google’s approach is far more nuanced than Facebook’s and users do appear to have an option to opt-out of its personalisation model (and it is an opt-out, you are opted-in by default).

The changes were announced on 11 October in a document that summarises the changes that Google will implement on 11 November 2013. In contrast to Facebook’s governance model, which still allows for some degree of community involvement, Google tends to announce changes and implement them without much public consultation. Google explains its “Shared Endorsements” model as follows:

We want to give you — and your friends and connections — the most useful information. Recommendations from people you know can really help. So your friends, family and others may see your Profile name and photo, and content like the reviews you share or the ads you +1’d. This only happens when you take an action (things like +1’ing, commenting or following) — and the only people who see it are the people you’ve chosen to share that content with. On Google, you’re in control of what you share. This update to our Terms of Service doesn’t change in any way who you’ve shared things with in the past or your ability to control who you want to share things with in the future.

Feedback from people you know can save you time and improve results for you and your friends across all Google services, including Search, Maps, Play and in advertising. For example, your friends might see that you rated an album 4 stars on the band’s Google Play page. And the +1 you gave your favorite local bakery could be included in an ad that the bakery runs through Google. We call these recommendations shared endorsements and you can learn more about them here.

When it comes to shared endorsements in ads, you can control the use of your Profile name and photo via the Shared Endorsements setting. If you turn the setting to “off,” your Profile name and photo will not show up on that ad for your favorite bakery or any other ads. This setting only applies to use in ads, and doesn’t change whether your Profile name or photo may be used in other places such as Google Play.

If you previously told Google that you did not want your +1’s to appear in ads, then of course we’ll continue to respect that choice as a part of this updated setting. For users under 18, their actions won’t appear in shared endorsements in ads and certain other contexts.

For greater control over your experience with ads on Google, you can also use Google’s Ads Settings tool to manage ads you see. Learn more.

The main change

The main change to Google’s Terms of Service is this insertion under the heading “Your Content in our Services”:

If you have a Google Account, we may display your Profile name, Profile photo, and actions you take on Google or on third-party applications connected to your Google Account (such as +1’s, reviews you write and comments you post) in our Services, including displaying in ads and other commercial contexts. We will respect the choices you make to limit sharing or visibility settings in your Google Account. For example, you can choose your settings so your name and photo do not appear in an ad.

Google users can opt-out of this option and a help page explains the process. An interesting part of the process is the following (I highlighted the interesting bit):

Go to the Shared Endorsements setting page. If you are not already a Google+ user, you will be asked to upgrade your account.

Pretty devious

Why is this interesting? Because it is a pretty devious way to persuade more Google services users to “upgrade” their Google accounts to Google+ accounts and integrate deeper into the broader Google platform.

Driving Google+ user adoption (in other words, persuading users to activate Google+ integration) is how Google is going to make meaningful inroads into Facebook’s dominance on the social web. It is Google’s metaphorical arms-buildup in its battle with Facebook for dominance on the social web and for a larger stake in the social marketing space.

I imagine that even if you opt-out of the Shared Endorsements program, you will still see personalised ad suggestions. Reducing the likelihood of your personal information being used to personalise ads will probably require browsing the web anonymously or, at the very least, reviewing your privacy settings very carefully and customising them to suit your preferences.

Caught in the crossfire

When the media covers these sorts of changes, the implication tends to be that personalisation is bad and should be resisted at all costs. That isn’t necessarily the case. If you accept that you will be faced with ads in a service you find truly useful and don’t pay for, being presented with more relevant ads is probably going to enhance your experience of those ads.

The real question is whether users have meaningful control over their personal information and can opt out of personalised ads and still have use of these services. I think that answer will increasingly become “no” as more and more functionality becomes dependent on your participation, willing or not.

Facebook frequently talks about features it is removing and which were only used by a small percentage of users. Most recently. one of those features is the option of not being included in Graph Search. The fact that so few users have enabled that option says more about how aware users are of these sorts of “features” and whether they are adequately informed about their value. The answer is overwhelmingly “very few” and “definitely not”.

Legal equivalent of stealth weapons

For the most part, users just want to post fun photos and videos and share stuff. They don’t think about how their rights are affected and that only changes when there is significant attention on major changes. To combat this, services such as Google and Facebook have adopted the legal equivalent of stealth weapons and make use of nuanced language, misdirection and selective emphasis to deflect attention from the problematic changes.

What we see is a sort of war by proxy between the major social services and in which users could find themselves fuelling various services’ efforts to gain market share, without being aware of much more than more personalised ads and being prodded to “upgrade” their accounts to take advantage of the new flashy options.

For as long as users feel they benefit more than they are prejudiced, this deal works for them, but the challenge has always been whether users are aware of the extent to which their options are being limited and they are being traded for bigger weapons in this digital battlefield. The answer for the most part is “no” and that is not likely to change any time soon.

  1. It’s a made-up word for what happens when you sort of volunteer and are also told that you are signing up for something, especially when you don’t usually have much choice.
  2. I have marked up the proposed edits with strikethrough for deletions and bold for insertions.
  3. Isn’t this an interesting deletion?
  4. This is a challenging one. If you are under the age of 18 in South African law you may lack the legal capacity to agree to this so the consent Facebook takes may still amount to a violation of children’s rights to privacy.

Paul Jacobson (@pauljacobson) is the founder and director of Web•Tech•Law/CC BY-SA 2.5


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