This Summer I became very interested in what I think I will be calling “legal portraits of digital subjects” or something similar. I came to this through doing a study on MOOCs with SMC this summer. The title of the project is “Students as End Users in the MOOC Ecology” (the talk is available online). In the project I am looking at what the Big 3 MOOC companies are saying publicly about the “student” and “learner” role and comparing it to how the same subject is legally constituted to try to understand the cultural implications of turning students into “end users”.
As I was working through this project, and thinking of implications outside of MOOCs and Higher Ed, I realized these legal portraits are constantly being painted in digital environments. As users of the web/internet/digital tools we are constantly in the process of accepting various clickwrap and browse-wrap agreements without thinking twice about it, because it has become a standard cultural practice.
In writing this post I’ve already entered numerous binding legal agreements. Here are some of the institutions that have terms I am to follow:
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Internet Service Provider
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Web Browser
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Document Hosting Service (I wrote this in the cloud somewhere else first)
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Blog Hosting Company
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Blog Platform
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Various Companies I’ve Accepted Cookies From
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Social Media Sites
I’ve gone through and read some of the Terms (some of them I cannot find). I’ve allowed for the licensing and reproduction of this work in multiple places without even thinking twice about it. We talk a lot about privacy concerns. We know that by producing things like blog post, or status updates we are agreeing to being surveilled to various degrees. I’d love to start a broader conversation on the effects of agreeing to a multitude of Terms though, not just privacy, simply by logging on and opening a browser.
Social Media Collective 
I’d like to pose another question bouncing off your “(some of them I can’t even find)” statement: Is it ethical to write Terms in such a manner as to make them unreadable? Or, should Terms be considered legally binding if a) they aren’t easily found, or b) they are excessively complex? Does the lawyer hired by a company have a duty to ensure the Terms are understandable? Considering that lawyers represent Justice, or (according to the OED) reason, truth, and fairness, is it just to use legalese in a document intended for public consumption?
I personally don’t think it is ethical, but even if they aren’t easily found, all the research I’ve done thus far says they are legally binding, and courts tend to favor the companies. There is an article “Terms of Use” by Mark A. Lemley (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=917926) that is widely cited to talk about Terms of Use in legal studies. As far as I can tell there is no code for how the terms should be written, but many of them are similar. If you do a search for “how to write terms of use” though, you’ll get lots of examples that hint at what and who the documents are written for.
In case you haven’t come across it, there’s an interesting article in “The Nation” on this Issue, calling for a “People’s Terms of Service: http://www.thenation.com/article/174441/fighting-facebook-campaign-peoples-terms-service#
I hadn’t seen the article. Thank you so much for sharing!
@audreywatters shared Terms of Service Didn’t Read (http://tosdr.org/) with me earlier today. I’m really happy to see different types of spaces speaking about Terms of Service .