What Did I Just Agree To? : A Content Analysis of the Terms and Services Agreement | Eric Gonzalez

Eric Gonzalez’s What Did I Just Agree To?: A Content Analysis of the Terms and Services Agreement explores the accessibility of the Terms of Service of several major social media sites. By implementing logarithms to determine the readability of the often monotonous and lengthy terms of service required by social media sites, Gonzalez gives a fascinating (and at times disarming) perspective on consumer deception, federal trade commission regulation, and the implications of clicking “Agree” to something most don’t read to begin with.

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Checking the box that says ‘I have read and agree to the Terms of Service’ has long been a frequently committed lie since the rise of the digital age. With the rapid advancement in the data collection and mining fields, the Terms of Service, that many consumers agree to without reading, have become the key to allowing a company to collect personal data from the consumer. For example, Companies like SwiftKey and Bitmoji utilize their Terms of Service to allow them “to record what you type”.[1] In cases like this, where companies are inputting clauses in their Terms of Service granting them access to personal information upon acceptance, are results of technological advancements in the fields of data collection and marketing strategies have caused both the demand for personal consumer data and the price of such data to sky rocket. Companies can then utilize consumer data to improve their appeal to customers through altering marketing strategies and increase their profits. As a result, Terms of Service Agreements are becoming an increasingly important document for consumers to read in order to fully understand what data a company is collecting and what is being done with the data they collect.

Terms of Service Agreements tend to be overly lengthy documents loaded with legal and technical vernacular. In fact, according to a study done by researchers at Carnegie Mellon, the median length of these Terms of Service privacy policies “from the top 75 websites turned out to be 2,514 words”.[2] To put this into perspective, the same researchers noted that each “privacy policy costs each person 10 minutes to read” given that the average “reading rate in the academic literature is about 250 words a minute”.[3] To expect a consumer to read each Terms of Service agreement they agree to seems to be rather unrealistic but even if they were to, whether or not a consumer would fully understand these terms, comes into question. Furthermore, given that a consumer could give a company access to highly personal information that the company, the question of ‘are Terms of Service Agreements regulated?’ naturally arises.

These values suggest that the complex vocabulary of the Terms of Service may obstruct some consumers from understanding the terms they would potentially be agreeing to.

The Federal Trade Commission is the government agency responsible for general business regulation. Regarding this area of inquiry, their responsibility “to enhance informed consumer choice and public understanding of the competitive process” comes under question as the FTC currently does not have any regulation on the wording or length of Terms of Service agreements.[4] Ultimately, the decision was made to explore this area focusing on social media sites that consumers tend to give their most private information to, Instagram, Facebook, and Twitter, with the intention of answering the question of ‘Should the Federal Trade Commission issue regulations on the Terms of Service agreements of Twitter, Instagram, and Facebook due to their wording?’. To do this, the Gunning-Fog index was utilized in order to calculate an approximate grade level for the Terms of Service agreements based off of their complexity. The Gunning-Fog Index is a readability index used to determine the complexity level of a document and produce a corresponding grade level.

These values suggest that the complex vocabulary of the Terms of Service may obstruct some consumers from understanding the terms they would potentially be agreeing to.

The FTC’s role in the matter lies in section 5 of the Federal Trade Commission Act, which states that it is the Federal Trade Commission’s role in protecting consumers against unfair or deceptive acts or practices and outlines that criteria that must be met for an act or practice to be deemed unfair or deceptive. The high readability levels, all of which exceed 12 (equivalent to the completion of high school), of the Terms of Service of Twitter, Instagram, and Facebook brings the deception aspect of the act into question. According to section 5 of the Federal Trade Commission Act, a deceptive practice or act to be one that prohibits consumers from not being able to “reasonably avoid injury from an act or practice if it interferes with their ability to effectively make decisions or to take action to avoid injury”.[5] The readability levels of the Twitter, Instagram, and Facebook Terms of Service agreements may interfere with consumer’s ability to effectively make the decision to agree to the agreement and avoid any potential injury may be present in the Terms of Service.

The rather byzantine processes followed by the Federal Trade Commision in creating a regulation is to ensure that the regulation is of high quality and effective. A problem arises when issuing a regulation takes so long that the problem  being regulated is no longer relevant by the time the regulation is issued. This pattern was seen European Union policy on internet cookies. When the E.U. tried to create policy regulating internet cookies, it took so long to create and flesh out their regulation that internet cookies became nearly irrelevant by the time the regulation was issued.[6]

The current political climate of 2017 acts as a large factor in the possibility of the Federal Trade Commision issuing a regulation over the Terms of Service of Twitter, Instagram, and Twitter. The Federal Trade Commision is a panel of appointed individuals lead by a head, referred to as the chairperson. Currently Maureen K. Ohlhausen is the head of the FTC and was appointed by President Trump. Recently, the Trump administration has pushed regulation rolling back internet privacy with pro-business bias. Political party polarization in the past decade has clearly influenced views on government regulation of business. In 2007 57% of Democrats and Republicans thought government regulation over business was more harmful than beneficial but in 2012 76% of Republicans and 41% of Democrats thought government regulation over business was more harmful than beneficial.[7] In general, the point of views seen in the results of the 2012 study applies to the partisan point of views today in regards to business regulation and data collection. In a more contemporary sense, under the Obama Administration in 2016, the Federal Communications Commission passed a rule that, according to Alina Selyukh a technology reporter at NPR, “would have given consumers more control over how ISPs use the data they collect”.[8] This rule was overturned by President Trump in late March of 2017 ultimately allowing ISPs, Internet Service Providers, to do whatever they would like with consumer data without informing the consumer. Assuming that the trend of giving the power over consumer data to companies continues for the rest of the Trump term, it is unlikely that a regulation over the Terms of Service Twitter, Instagram, and Facebook will be issued in the near future as it would allow consumers to have a better grip on what is being done with their data.

With all these factors being considered, only about 2% of people read Terms of Service agreements one may ask the question ‘why does this matter if no one reads the Terms of Service anyway?’.[9] Though a reasonable point to bring up, the argument that no one reads Terms of Service therefore there is no reason for the Federal Trade Commision to investigate the contradicts the main role of the Federal Trade Commission which, as defined by the federal government in the Federal Trade Commission Act, is to “prevent business practices that are anticompetitive or deceptive or unfair to consumers; to enhance informed consumer choice and public understanding of the competitive process; and to accomplish this without unduly burdening legitimate business activity”.[10] With conflicts arising over Federal Communications Commission’s rules and regulation over Internet Service Providers in regards to usage of data collection, it is very likely that Terms of Service complexity issues in general is on the Federal Trade Commission’s radar. For the Federal Trade Commission not to investigate the Terms of Service agreements of Twitter, Instagram, and Facebook due to the complexity of their wording a would essentially undermine the basis in which the Federal Trade Commision was created upon: to protect the consumer. Strictly based off of the results of the content analysis that showed that the Terms of Service of Twitter, Instagram, and Facebook all has readability grade levels above that of a high school senior, the Federal Trade Commission should issue regulation over the wording of the Terms of Service of Twitter, Instagram, and Facebook. Limitations facing the issuance of the legislation can clearly be seen with outside factors that affect the efficacy of the FTC in rapidly changing situations like the examples discussed previously. The current political climate coupled with the extensive processes of the FTC reduce the likelihood of any regulation on Terms of Service wording to be issued in the foreseeable future.

 

[1] Chiang, Jennifer. “Why Clear Channel’s Billboard Campaign Is Not That Creepy.”. Fortune. (accessed 20 Oct. 2016)

[2] Madrigal, A.. “Reading the Privacy Policies You Encounter in a Year Would Take 76 Work Days.”. The Atlantic. (accessed December 21, 2016)

[3] Ibid.

[4] “About the FTC”. Federal Trade Commission. (accessed January 19, 2017).

[5] “7. Unfair and Deceptive Practices — Federal Trade Commission Act.”. Federal Deposit Insurance Corporation. (accessed January 11, 2017)

[6] Archick, Kristin, and Martin A. Weiss. “U.S.-EU Data Privacy: From Safe Harbor to Privacy Shield.” Congressional Research Service. (accessed March 19, 2017)

[7] Heimlich, R. (2012, August 13). Deepening Divide Between Republicans and Democrats Over Business Regulation. (accessed February 18, 2017)

[8] Selyukh, A.. “As Congress Repeals Internet Privacy Rules, Putting Your Options In Perspective”. National Public Radio. (accessed March 09, 2017)

[9] Shankar Vedantam, “Do You Read Terms Of Service Contracts? Not Many Do, Research Shows,” NPR, August 23, 2016, , accessed November 19, 2017.

[10] “About the FTC”. Federal Trade Commission. (accessed January 19, 2017).

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Eric Gonzalez is  from Wood- Ridge, NJ and a freshman at the University of Richmond. He researches social media terms of service due to his interest in internet marketing and internet policy.

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