Amid Instagram Madness, What Terms of Use Should Take for Granted

In all the hubbub around the new Instagram Terms of Service, there is one refrain that keeps repeating. It's one I've heard plenty of times before, and it's the reason I was hesitant to even tackle this issue. I see plenty of pundits saying that I must be an idiot if I did not read the original Terms of Use. I should always read the Terms of Use. What was I expecting? These policies have always already been spelled out in the Terms of Use.

I've seen a lot of strange reaction to this development. The basic reaction seems to be along the lines of "So what, they can use my blurry sunset/beer/self portrait/random building photo for all I care. It sucks anyway." That's great for all the narcissists out there who can only think of the photos they publish themselves, but there is real work going on with Instagram. There are professional photographers using the service. War photographers. People taking photos of their kids, their homes, their lives. People who actually care. Just because you take horrible photos and don't think they are worth a penny doesn't mean everyone feels the same. Nor does it mean everyone else should be obligated by your pathetic lack of empathy.

Of course, I'd have to be a moron to sign my name on the dotted line without reading the contract, right? Instagram did not force me to upload my photos, I chose to use their service. In the process of creating a username, password, and profile, I undoubtedly had to at least address the issue of the terms of service. Most likely, I checked a small box, because failure to check this small box resulted in a button that was grey and unclickable, and only checking the box would allow me to proceed.

In all the Web sites I've signed up for, the most stringent enforcement I've ever seen for reading the ToS is forcing the user to scroll all the way down to the bottom in order to find the magical check box. In these cases, I certainly did not read the terms of service, but I at least have some familiarity with their length. Longer equals more serious, so I assume these must be serious terms, written in serious language, and I will be in serious trouble if I ignore them. Whatever. Scroll, click, post.

[aquote]If Terms of Service are so dire, why not a pop quiz at the end?[/aquote]

If Terms of Service are so dire, why not a pop quiz at the end? When I was an English teacher, I knew that pop quizzes were a viable way to test whether the students had actually completed the reading assignment. They aren't good for testing understanding, or learning, or interpretation. But if I wanted to make sure that my students read from page 35 to page 40, I gave a pop quiz.

Reading is important, and the difference between a student spending 20 minutes reading every night and a student who only reads for 5 minutes is quite a bit, in aggregate. A student who reads for 20 minutes every school night through middle school and High School will have read for an equivalent of 17.5 days by the time she graduates. A student who reads only 5 minutes a day will have read for just under 4 days.

Now let's translate the same to Terms of Service agreements. According to a study published in "I/S: A Journal of Law and Policy for the Information Society" (download the .pdf here), if a user were to read all of the Privacy Policies he encounters in a year, it would consume about 250 hours of reading time.

Privacy Policies tend to be much longer than the Instagram Terms of Use, which weighs in at just over 1,000 words. But I know from writing numerous columns of 1,000 word length that most Internet users are not patient enough to read them in detail; and my columns are written in plain, if pretentious, English, without any legalese.

It is silly to expect users to read the entire Terms of Service. I ran the Instagram Terms of Use through a reading sample analyzer, and it registered a grade level of 8.5 on the Flesch-Kincaid scale. Now, most of you have probably reached higher than a ninth grade reading level, but should a High School education really be a requirement to post pictures of your cheeseburger? That assumes you went to a good High School, your teachers taught you properly, and you have maintained your reading ability since you graduated. Most states require a reading level for Insurance documents that is only a few points lower on the Flesch Reading Ease scale.

People sign up for a Web site with a few set expectations. The Terms of Service should take these expectations for granted, and should only make special note of terms that specifically contradict these expectations.

1. My stuff is mine, and nobody else can use it unless I say so. This goes for everything I post. My words on Twitter. My photos on Instagram. My relationships on Facebook. It's all mine. I own it, and only I can use it, unless I have granted specific permission. You can look at it. You can analyze it, then pitch me advertisements based on what I say, what I see, and who I know. But you cannot use it for advertisements, or promotions, or even for an internal slideshow demonstrating the adulterated beauty of sunsets in the North Texas area.

2. My stuff will stay where I put it, until I decide to delete it. Then, it goes away forever. It should be easy to delete my stuff. It should be easy to find my stuff, until I erase it, after which it should be impossible to find. Also, you can kick me off and delete all my stuff at any time, for any reason. It's your service, I'm just visiting.

3. I take full responsibility for everything I post. If I rob a bank and then post incriminating photos, that's my fault, and I'm going to jail. If I take a self portrait and I didn't see the flasher exposing himself in the background, that's totally my bad. If I post a photo of my Mom and she hates it so much that she disowns me and sues me for defamation of character, I'm the one who has to deal with her, not the service.

That's it. That's all I expect. If there's anything more, spell it out in the most plain English you can manage, preferably at a fifth grade reading level.