Terms

'Social Contract 2.0: Terms of Service Agreements and Political Theory' by David Gunkel in (2014) 2 Journal of Media Critiques comments

Terms of service, privacy policies, license agreements, and other legal documents are the governing instruments of digital life. They are its Magna Carta, its Constitution, and its Universal Declaration of Human Rights (Downs, 2009, p. 22). 

This essay advances the thesis that the most influential and important political documents of the twenty-first century are not necessarily the constitutions and charters written for new or reconfigured nation states, but the often-overlooked terms of service agreements that users must sign (or, more precisely, click "agree") in order to participate in social networks like Facebook, Second Life, Google+, Bebo, etc. These agreements, which constitute the principle governing documents of online social worlds (Grimes et al., 2008), constitute a kind of postmodern, post-nation state social contract. As such, they articulate, structure, and regulate not only the kind of social interactions and political opportunities that are available within these global networks but determine what forms of social activity and affiliation are considered to be appropriate, acceptable, and even possible. The examination, which takes a critical approach to this subject, will be divided into three parts. The first situates these agreements within the history and lineage of modern political thought in general and social contract theory in particular. The second pursues a critical reading of the Terms governing Facebook, a social network with a population of active users that now exceeds Brazil making it the fifth most populous polity on the plant. The final section extrapolates the broader social and political consequences of these agreements, arguing that informed users not only need to read these documents carefully but also need to recognize the way these seemingly unimportant texts define and delimit the very conditions of (im)possibility for social involvement and interaction in the 21st century. Although the subject addressed by the essay is contemporary and a product of the late 20th and early 21st centuries, the method of its presentation is rather anachronistic and deliberately dissimulates the rhetoric and tone of an 18th century treatise. And this has been done, I can tell you dear reader, not out of affectation, but because the subject matter will have required nothing less.

Gunkel concludes

by noting three consequences of the foregoing, all of which can be expressed in the form of short-hand, algebraic equations.

1) T = C. The Terms of a social network are, in both form and function, a "social contract." These documents, which in the case of Facebook involve and apply to almost half-a-billion users worldwide, represent a privatization of the political as individuals form social affiliations under the sovereignty not of national governments located in geographically defined regions but multinational corporations that form and operate in excess of terrestrial boundaries. If declarations, constitu-tions, and national charters were the standard governing documents of the modern era, organizing and legitimizing the nation state as we know it, then it is the terms of service and related policy statements that arguably occupy a similar position in the postmodern era, articulating the foundation of social and political affiliations for a post-nation state, multinational polity. These agreements, therefore, constitute the next version of what political philosophers, beginning at least with Hobbes, have referred to as the "social contract," or what we have called, following a procedure that is common-place in the IT industry, social contract 2.0. This means, then, that the most influential and compelling political documents of the early 21st century might not be found in the democratic constitutions written for the newly reconfigured nation states of Afghanistan and Iraq, the manifestos and agreements developed in the wake of the "Arab Spring," or even influential transnational treaties like that of the European Union. Rather it is likely that some of the most important political documents of this epoch are being written, published, and prototyped in the terms of use agreements, terms of service contracts, or other governing statements that organize and regulate online social networks.

2) T – U = I. The Terms of a social network without user Understanding results in Irresponsible behavior. Despite the fact that these governing documents prescribe and regulate the rights and responsibilities of users, dictating the terms and conditions of online social interaction and affiliation, many of us, even those who are politically active and attentive, either ignore these texts as unimportant or dismiss them as a kind of "legalese" necessary to obtain access but not very interesting in their own right or worth serious consideration. This negligence is irresponsible for two reasons. First, on the face of things, Facebook, for example, appears to be a rather well-designed technological convenience allowing users to connect with friends, to share photographs and news, and even to participate in important social and political actions. The contractual agreement Facebook has with its users, however, also grants the organization a world-wide, unrestricted license to use this information in whatever way they see fit and the right to pass this and other forms of personal data to law enforcement agencies both in the United States and elsewhere. Although Facebook explicitly promotes a utopian vision of "one world," where individuals communicate with each other beyond geographical and national boundaries, it also serves the interests of national governments and modern social institutions by enforcing their laws and facilitating the surveillance of citizens. Users of Facebook, therefore, need to know not only what opportunities can be gained by joining the network but also what is potentially traded away, compromised, or exposed in the process of agreeing to its terms. Second, what can now in retrospect be called "social contract 1.0," namely the agreements that had organized and structured modern political institutions, often have been negotiated, executed, and decided such that subsequent generations only have the opportunity to agree to the contract through what Locke called "tacit consent." Social contract 2.0, by contrast, not only affords but requires each and every member of these post-modern virtual communities to make a definitive decision concerning the exact terms of the social relationship. If the social compact of the modern nation state often remained what Hobbes called "implicit," social contract 2.0 is explicit—every participant has the opportunity and right to agree to the contract or not. In order to take advantage of this extraordinary situation, however, users not only need to make an informed decision but also need to know the exact terms and conditions of what is to be decided.

3) T + K = Δ p. As a corollary of #2, Terms plus user Knowledge results in political change (represented by the standard mathematical symbol for change, the Greek letter delta). Being critical of a terms of service agreement or any of the other documents governing operations in a social network does not mean nor does it necessarily entail that one opt-out. It would be naïve to expect that any social organization, whether real or virtual, will be able to get everything right from the beginning. And there may remain, as is clearly the case with Facebook's "Statement of Rights and Responsibilities," one or more aspects of the contractual agreement that give users legitimate reasons to be cautious or concerned. Deciding not to participate, or opting out of the social contract, is clearly one way to avoid or even dispute such problems, but doing so not only means missing out on the opportunities afforded by these increasingly useful and popular Internet applications but, more importantly, does little or nothing to question, challenge, or improve existing policies. Instead of opting out, we can alternatively engage these new social systems, capitalizing on their opportunities while remaining critical of the limitations of their social contract and advocating for improvements. And there are good reasons to be optimistic that such efforts can and will have traction. The social/political structures of both LambdaMOO and Facebook have not been static, they have developed and evolved as a result of user involvement, complaint, and struggle. The "Rape in Cyberspace," although a less than pleasant affair, caused the users of LambdaMOO to take seriously the questions of governance and led to numerous discussions, debates, and experiments with social policy. Similarly Facebook has developed and evolved in response to crisis and user criticism. In 2009, as the result of what can now in retrospect be called a "mistake," the users of Facebook helped the organization's ruling elite recognize that the traditional terms of use agreement, which had been standard operating procedure and for that reason gone largely unquestioned, was obsolete and no longer appropriate for Facebook's stated mission and objective. As a result, Facebook introduced what are arguably revolutionary innovations in social network governance—the "Statement of Principles" and the "Statement of Rights and Responsibilities"—effectively changing what had been an autocratic totalitarian commonwealth or "company town" (Jenkins, 2004) into a benevolent dictatorship supporting democratic participation. Despite this remarkable transformation, however, it can still be legitimately argued that these improvements do not go far enough—that Facebook's "transparent process" is cloudy at best, if not opaque. Pointing this out does not, it should be noted, negate the importance or influence instituted by the innovation. It merely recognizes that things do not necessarily end here. Like all forms of political activism, therefore, users of social networks need to engage the structures as they currently exist, work to identify their inconsistencies and problems, and advocate for improvements. What is needed is not mere opposition and abstinence but informed involvement and critical participation. For this reason, we can end by reissuing the concluding statement from Pavel Curtis's LTAD document (1993): "I think we're going to have a lot of fun, here... :-)" This sentence should, however, be read in light of the emoticon that punctuates it. What the sideways smile-face indicates is that the word "fun" might need to be understood and interpreted with some wry humor. That is, the opportunities that are available with social networks may, in fact, turn out to be interesting, engaging, and entertaining. This "fun," however, will still require a good deal of struggle, effort, and conflict, and might, at times, appear to be less than what one might consider immediately enjoyable or amusing.