Social media is a rapidly growing space people use to connect with each other and to become critically engaged. According to a recent study by the Pew Center, Facebook users are more likely to attend political rallies and influence the voting behavior of their friends.1
Facebook acts as a conduit for these types of interactions. Thus, government officials would naturally want to reach and interact with the public through these channels. Social media allows a level of interactivity and access to a broad audience—in the case of Facebook, 800 million users.2
Social media also can be useful during emergencies for disseminating information.3
Government officials, however, face a variety of complications when using social media, including Terms of Service agreements. These contracts or “click-through” agreements are the legalese a user accepts by typically clicking an “accept” button or check box in order to use a social media service. These agreements often include stipulations that make a state’s acceptance of the terms a conflict of state law. This was the case in Colorado, where in 2010 Attorney General John Suthers advised state government agencies not to be on Facebook. The Colorado University system, however, already operated about 150 Facebook pages or groups. The social network was an important channel through which the system communicated with students. Several other state entities already had an established Facebook presence as well, further inconveniencing the public and state agencies. While Suthers did not force anyone to remove their pages, he did let them know the risk having such a presence created.1
The challenge of social media Terms of Service agreements was first addressed at the federal level. In 2009, the Open Government Directive instructed federal agencies to create a more open government with transparency, participation and collaboration as guiding principles.4
Social media was a natural realm in which government could apply these values.
But joining social media sites was illegal because of conditions in the Terms of Service agreements that were not amenable to federal agencies. To reconcile these issues, the federal General Services Administration began to negotiate with the leading social media companies. The end result was a series of modified Terms of Service agreements that were made available specifically through the GSA. Facebook, for example, offers a modified contract that incorporates such changes as allowing federal law to supersede California law, limits the liabilities of the government and requires language on the government pages of social media channels that direct visitors to the official agency website for authoritative information.2
Terms of Service Legal Conflicts
Two major and common legal issues for states in social media Terms of Service agreements revolve around indemnification and jurisdiction:
—Section 11 of YouTube’s Terms of Service agreement5
and Section 15.2 of Facebook’s Terms of Service6
agreement both note that should the companies face legal action as a result of a user’s actions on their sites, the user will pay the fees to cover these charges. YouTube explains that …”[t]o the extent permitted by applicable law, you agree to defend, indemnify and hold harmless YouTube … against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) …” related to you accessing the service, violating any Terms of Service, violating another party’s rights (such as copyright or privacy) or, more generally, “… any claim that your Content caused damage to a third party.” Many states, like Colorado,7
however, are prohibited from entering into agreements that would hold them financially liable for uncertain amounts.
Jurisdiction—YouTube and Facebook also require that cases be tried under California law, which again poses a conflict for state governments. As Section 14 of the You-Tube site states:
“These Terms of Service shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and YouTube that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in Santa Clara County, California.”
Facebook contains similar language in section 15.1 of its Terms of Service, also granting jurisdiction to a court located in Santa Clara County.
State Governments and Social Media Terms of Service
State governments have an interest in broader social media use, and as the National Association of State Chief Information Officers found, “social media adoption rates are broad across state governments, whether controlled by CIO offices or not.”8
According to the NASCIO report, “Friends, Followers and Feeds,” the most commonly cited reason state governments had not adopted social media was because of the issues presented by Terms of Service agreements.9
NASCIO, in cooperation with the National Association of Attorneys General, organized the Social Media Legal Working Group. The formation of the group was significant, as states had previously been unable to convince the social media companies to create 50 different Terms of Service agreements for individual states.10
For this reason, NASCIO’s strategy focused on creating a single, custom agreement that state chief information officers could request for their states, which has been met with a better reception by social media companies.
Sites with Negotiated Agreements
Facebook—In January 2011, NASCIO negotiated an agreement with Facebook to allow for modified Terms of Service agreements. The social networking site made changes for state governments that work through NASCIO and focused on the following aspects:11
Disputes—Facebook has explicitly stated to resolve “any disputes in an amicable fashion.”
Venue—Section 15.1, which requires disputes to be heard in a state or federal court in Santa Clara County, Calif., no longer applies.
Governing Law—Facebook also no longer requires that “[t]he laws of the State of California will govern this statement” in its modified Terms of Service.
Indemnity—Facebook changed the indemnity clause to “apply only to (a state government or state government agency) only to the extent expressly permitted by (the state’s) jurisdiction.”
Disclaimer Requirement—The terms were also modified to include an additional, clarifying disclaimer on state-operated social media pages: “If you are looking for more information about (Government Entity), please visit (website URL).”
YouTube—In January 2012, NASCIO also completed negotiations of a revised Terms of Service agreement with YouTube.12
It also included similar enhancements, with key aspects focusing on indemnity and jurisdiction. While the specific details of the agreement are not yet public, state chief information officers may submit specific requests to NASCIO to access the revised agreements.
7 Office of the State Controller, Colorado Department of Personnel and Administration.
Government IT. Jan. 18, 2012.