Comment by JumpCrisscross | Hacker News Reader

Comment by JumpCrisscross | Hacker News Reader

"In 2007, for example, Facebook introduced a program that recorded users’ activity on third-party sites and inserted it into the News Feed. Following public outrage and a class-action lawsuit, Facebook ended the program. 'We’ve made a lot of mistakes building this feature, but we’ve made even more with how we’ve handled them,' Facebook’s chief executive, Mark Zuckerberg, wrote in a public apology.

This sort of thing happened regularly for years. Facebook would try something sneaky, users would object and Facebook would back off.

But then Facebook’s competition began to disappear. Facebook acquired Instagram in 2012 and WhatsApp in 2014. Later in 2014, Google announced that it would fold its social network Orkut. Emboldened by the decline of market threats, Facebook revoked its users’ ability to vote on changes to its privacy policies and then (almost simultaneously with Google’s exit from the social media market) changed its privacy pact with users.

This is how Facebook usurped our privacy: with the help of its market dominance. The price of using Facebook has stayed the same over the years (it’s free to join and use), but the cost of using it, calculated in terms of the amount of data that users now must provide, is an order of magnitude above what it was when Facebook faced real competition."

https://www.nytimes.com/2019/05/28/opinion/privacy-antitrust... Why Privacy Is an Antitrust Issue

>The price of using Facebook has stayed the same over the years (it’s free to join and use), but the cost of using it, calculated in terms of the amount of data that users now must provide, is an order of magnitude above what it was when Facebook faced real competition."

That’s actually a very interesting potential legal issue.

User/FB enter into agreement (user gets access to platform/FB gets access to data), FB unilaterally changes terms of agreement (FB gets greater access to user data, but User doesn’t get anything they didn’t already have)...seemingly these modifications of the agreement should be void/unenforceable for lack of consideration. Yes, the user may have agreed/consented to the changes of the terms (by clicking accept, continuing to use the FB platform) but that doesn’t mean the new agreement is enforceable without additional consideration from FB.

> that doesn’t mean the new agreement is enforceable without additional consideration from FB

Contracts can be re-negotiated for any legal or even no reason. Raising the price without providing additional consideration is fair game if both parties agree. And consumers have, overwhelmingly, agreed to the changes.

The question is whether Facebook abused its monopoly position to coerce its users into said agreement. That's the author's gist, and based on the evidence presented, it's a convincing argument.

>Contracts can be re-negotiated for any legal or even no reason.

Yes, they can be renegotiated, they can not be unilaterally changed without additional consideration (except limited circumstances: UCC, sale of goods, etc...).

Continuation of use or even agreement to the unilateral change doesn’t matter if their is no additional consideration, the new agreement is deemed void/unenforceable.

> they can not be unilaterally changed without additional consideration

I think the ship around users accepting privacy policy changes through continued use of a free product has sailed. It shouldn't have. But I don't think this is the case with which to make that point.

>I think the ship around users accepting privacy policy changes through continued use of a free product has sailed.

The following are excerpts from a good article from the American Bar Association:

>The existing case law on online modifications, however, is scant. The few existing opinions rely appropriately on off-line contract modification rules to determine whether the authors of the original contract terms succeeded in effectively modifying those terms. Unfortunately, the decisions to date do not yet provide us with predictability as to the enforceability of online contract modifications.

>in order for a modification to be enforceable, it must be supported by consideration, or, in the case of contracts governed by Article 2 of the Uniform Commercial Code, it must be entered into in good faith. See U.C.C. § 2-209 cmt. 2.

https://www.americanbar.org/groups/business_law/publications...

Does the facebook of today provide a remotely similar experience to the facebook of 10 years ago? There's a lot of additional features that they've added. There is, arguably, reasonable consideration.

>Does the facebook of today provide a remotely similar experience to the facebook of 10 years ago?

Yes.

It could certainly be argued as you say that the services changed - still from a contract Law perspective these are unilateral changes by Facebook not negotiated bargained for exchanges - but assuming there is consideration, over the last 10 years do you really think FB materially changed the services to justify each and every agreement modification? All you need is one unenforceable modification along the way and the whole thing could unravel.

I'm not a lawyer, and I'm admittedly taking a bit of a devil's advocate position, but at the same time I also think that "reprocessing data requires additional consideration" is a reach to begin with, so the counter-reach of "new features are consideration" isn't completely insane.

I don't think there have been more than a handful of privacy policy modifications from facebook in my memory (although I could be completely wrong!) but if it really is, as I perceive it, ~once a year, I think the argument that each year Facebook comes out with compelling enough features to justify additional data collection is, perhaps unfortunately, justifiable.

It would be interesting to see this legal arguement unfold with FB...I just think the problem is FB unilaterally modifying the terms.

In other words FB saying we are going to now start providing you with X services and you are going to give us Y data.

Sure the user might benefit from X, obviously even that could be argued, but the idea is this isn’t a bargained for exchange/negotiation. This is unilateral modification without consideration, it’s not enough for FB to say they modified the data collection/rights which is justified because FB also changed the service.

That’s like saying you ordered a cheese pizza for $10, the company unilaterally charges you for $1,000 and justifies that because they bring you 100 pizzas...at no point was there consideration for the modification of the agreement even though you got 100 pizzas. Similarly can FB just start collecting more data/selling to third parties by unilaterally changing their terms and justify it by saying a unilateral change in service equals legal consideration?

> That’s like saying you ordered a cheese pizza for $10, the company unilaterally charges you for $1,000 and justifies that because they bring you 100 pizzas...at no point was there consideration for the modification of the agreement even though you got 100 pizzas. Similarly can FB just start collecting more data/selling to third parties by unilaterally changing their terms and justify it by saying a unilateral change in service equals legal consideration?

I don't think this is quite a fair comparison. Let me rephrase it and tell me if you still think its illegal (unethical, sure, but illegal):

You subscribe to a pizza delivery service that sends you 1 pizza a month for $10/month. After a few years, they decide to up the minimum subscription to 100 pizzas a month for $1000 (or maybe even $500, there's probably some reasonable economies of scale arguments to be made about FB). They send an email notifying all customers of the ensuing upgrade, and a few months later you start getting charged 50x more and getting a whole lot more pizza than you want.

That's still probably not a good thing to do, and I wouldn't fault you for calling FB shady if they did that. But I'm also not at all certain that that action is illegal, especially from a strictly contract law perspective.

It sounds very similar to the subscription radio case cited in the ABA article I linked:

>in Knutson v. Sirius XM Radio, 771 F.3d 559 (9th Cir. 2014), the terms regarding an automobile’s trial subscription to a satellite radio service were sent to the owner a month after the purchase of the automobile in an envelope marked “Welcome Kit.” The Ninth Circuit refused to enforce the additional terms because there was no mutual assent to the terms. The Ninth Circuit found no evidence that the purchaser of the automobile knew that he had purchased anything from Sirius or was entering into a relationship with Sirius, let alone had agreed to the terms (which contained an arbitration clause). Therefore, continued use of the service by the purchaser did not manifest assent to the terms.

Not exactly on point, and there are other such cases cited in the article that support enforceability...but it’s all going to come down to nitty gritty facts (for example another case found the terms of the change in price were buried in page 4 of an invoice; therefore, unenforceable).

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