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Face value: digging through Google's clumsy new terms of service

Face value: digging through Google's clumsy new terms of service


Users raised hell when Instagram made a similar move, so why didn't Google learn its lesson?

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Google New York Chelsea Office (STOCK)
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On Friday, anyone signed into a Google account was greeted with a banner across the top of the page announcing the company’s terms of service had changed. Google was clearing the path for Facebook-style advertising, announcing any "shared endorsement" would be fair game to be used in promoted content. It’s a familiar playbook, but the backlash was fast, and bad enough to prompt Senator Ed Markey (D-MA) to ask the FTC to make sure the company hadn't violated any earlier agreements with the updated terms. When your terms of service are being targeted for federal investigation, clearly something has gone wrong.

What counts as a shared endorsement?

The most obvious point of confusion is the new idea of shared endorsements. It’s a core idea of the new terms, allowing a whole new category of actions to be shared in ads — but it’s still unclear exactly what falls into the new category. The company has declined to make an official statement on the rules, aside from its original post, and there are a lot of questions still in the air. Leaving a good review in the Google Play store counts as a shared endorsement, and sending an email to my friend about Gravity doesn’t — but that leaves a lot of gray area. What about following a page on YouTube, or leaving a thumbs-up under a specific video? For Google, it’s still too early to say, and that ambiguity is leading many users to assume the worst.

"I was scratching my head trying to figure out what was new."

It’s particularly surprising because Google didn’t change that much. The policy is a straight crib from what Facebook is already doing, and it offers a clear chance to opt-out. The most invasive suggestion is that public reviews, like ratings in the Google Play app store, could be included in Adwords' new social ads, but anything done within the Google+ network will be limited to the circles it was shared in. Of course, if you’re just talking about +1s on Google+, then the system has already been using face-grabbing ads years. If that sounds confusing, it’s because it is confusing: it’s a hodgepodge of pre-existing efforts and test balloons that became difficult for anyone to sort out. "I was scratching my head trying to figure out what was new," said Danny Sullivan from Search Engine Land. "That's probably Google's biggest misstep in all this. The communication was poor."

This kind of backlash has become a depressingly common part of the tech landscape. In December, Instagram faced a similar outcry over a similarly minor terms-of-service change. Ten months later, fears of seeing your Instagrams on a Pepsi billboard have yet to materialize — but thanks to the mixed messages from Facebook HQ, they seemed entirely plausible at the time. Google has fallen into the same trap, feeding implausible fears with ambiguous terms of service. It's a tried-and-true recipe for stoking rumors a company can't comfortably deny. The only surprising thing is that, after the Instagram debacle, Google didn't see it coming.

Ten months later, fears of seeing your Instagrams on a Pepsi billboard have yet to materialize

In all likelihood, Google was more worried about impressing judges than impressing users. Facebook blazed the trail for this kind of social-scraping ad, but they also got stuck with a lawsuit that ended up costing them $10 million. IP lawyer David Weslow sees the recent Google changes as a direct response. "They’re offering everything Facebook allegedly didn’t," Weslow says. "They've got early notice, contractual basis, and the ability to opt-out." Early notice is particularly key, since it gives users a warning before the algorithm starts pulling their endorsements. But while that looks great in a courtroom, it looks a good deal more confusing on the open web.

But while the cycle of terms-of-service outrage looks predictable, it may also be inevitable. Weslow describes the process as "balancing the legal and the practical," with lawyers aiming for as broad a license as possible without generating so much controversy that the change has to be undone to appease users. From that perspective, the new terms may be working perfectly. The calls for an FTC investigation look bad, sure, but they’re unlikely to go anywhere, and four days after the fact, the outrage is already dying down. "They pushed it out on a Friday," Sullivan says, "and nobody seems to be abandoning Google." At this point, we couldn’t if we wanted to.