Commentary

Privacy Groups Ask FTC To Nix Facebook's New Terms Of Service

When Facebook settled a class-action lawsuit about its sponsored stories program last week, the company promisedto change some of the language in its terms of service, in order to reflect how the program operates.

Among other changes, Facebook said it would add language requiring minors to represent that their parents agreed to the terms of service -- including the use of their children's names and photos in sponsored stories ads.

Facebook said in court papers that the new provision would be worded as follows: “If you are under the age of eighteen ...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.”

The company also said it would add language clarifying that people who “liked” products or services might have their names and images used in ads. (Facebook also said it would give users more tools to control their appearance in sponsored stories; the company also agreed to pay $15 each to around 600,000 users who objected to their appearance in prior sponsored-stories ads.)

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The social networking service agreed to those conditions in order to settle a lawsuit accusing it of violating a California law prohibiting companies from using people's names or pictures in ads without their written consent. That law also prohibits the commercial use of minors' names or photos without their parents' permission.

But not everyone thought that Facebook should be allowed to resolve the lawsuit by rewriting its terms of service. Some watchdogs, including Public Citizen and The Children's Advocacy Institute at the University of San Diego's Center for Public Interest Law went so far as to ask U.S. District Court Judge Richard Seeborg in the Northern District of California to scuttle the deal.

The Children's Advocacy Institute specifically argued that children aren't likely to ever see the provision in the terms of use that requires parental permission -- let alone seek their parents' consent to appear in ads.

Public Citizen pointed out that the deal effectively authorizes Facebook to continue using minors' names and images in ads without parental permission -- despite the fact that seven states explicitly prohibit companies from doing so.

Seeborg discounted those objections and approved the settlement last week. Several days later, Facebook formally unveiled its new terms of service. As expected, they require users under 18 to say their parents consent to the service's conditions.

Now, a coalition of privacy groups says that Facebook's new terms violate its 2012 settlement with the Federal Trade Commission. In that matter, Facebook promised to obtain users' express consent before sharing their information more broadly than its privacy policy allowed when users uploaded the data. 

The privacy groups -- Electronic Privacy Information Center, Center for Digital Democracy, Consumer Watchdog, Patient Privacy Rights, U.S. PIRG, and Privacy Rights Clearinghouse -- specifically call attention to the provision requiring minors to represent that their parents agree to the terms of service. “The amended language involving teens -- far from getting affirmative express consent from a responsible adult -- attempts to 'deem' that teenagers 'represent' that a parent, who has been given no notice, have consented to give up teens’ private information. This is contrary to the Order and FTC’s recognition that teens are a sensitive group, owed extra privacy protections,” the groups say. They are asking the FTC to block Facebook from moving forward with the new terms.

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