By Assenting to Big Tech TOS with Only Minor Changes
In 2009, the Obama administration assented to Terms of Service of hand-picked social media platforms with only minor changes (not even minor changes with Twitter) and created multiple accounts on them. Consequently, these Platforms – including Google YouTube, Facebook, Twitter, and LinkedIn – became dominant.
The Obama team used Big Tech standard terms with minimal changes, despite the vast difference of the bargaining power of the federal government and an ordinary user. It also called them “negotiated agreements”, purporting to put the federal government in worse legal position than an ordinary user, protected by the legal theory of contracts of adhesion.
The difference of the “negotiated agreements” from the standard TOS were mostly removal or restriction of indemnity and forum selection clauses. Some agreements restricted platforms’ ability to use the US symbols for self-promotion and to place ads the government content. Almost all other one-sided clauses remained, including the following:
- The US government is obligated to comply with content guidelines, policies, and rules of the platforms, even when they change.
- The platforms can change their terms, conditions, policies, and rules at any time
- The platforms can delete any content of any government account at whim or on slim pretext, without notice to the public
- The platforms can delete any government account with short or no notice
- The platforms can manipulate incoming and outgoing information, to and from the government accounts
- The platforms own copyright for any collection of government content
None of the reviewed agreements had a clause protecting the rights of citizens who need to engage with government accounts on these platforms. None of the agreements required the platforms to act in accordance with the Constitution, as government actors. None of the agreements restricted collection of the private data of the citizens
No agreement required concession fees from the platform, despite the value of the endorsement by the US government and the traffic generated by government accounts. No tenders were conducted prior to making these agreements. There were no attempts to determine the government’s needs in the platforms’ services or costs of adopting them.
The Obama administration simply transferred enormous political power and economic value to the platforms of its choice, ignoring all the Constitutional checks, especially the First Amendment and the Fourth Amendment. The federal government also recommended that these same agreements be adopted by state and local governments.
This disaster even survived the Trump administration. Perhaps President Trump never learned of this obamination.
Of course, these “negotiated agreements” are fraud, committed by Big Tech platforms and their related parties on the federal government, governments of all states using them, and all US citizens.
The Federal government’s endorsement of and entwinement with the Platforms left few other options for states and local governments than to follow its example in their contracts with the Platforms.
Here, all but one contract are signed by the National Archives (NARA):[i]
Google/YouTube: signed on March 10, 2009.[ii]
Twitter: “Standard Twitter TOS is acceptable” – documented by June 12, 2013;[vii] the TOS is unacceptable even for a retail consumer;[viii] hundreds of government accounts appeared on Twitter in early 2009.
There are a couple dozen of contracts on .gov.[ix] Some of them are regular contractor agreements and do not create pervasive entwinement. The contracts with the Platforms, in this case, certainly do.
An agreement with MySpace was signed on April 22, 2009;[x] but the Obama administration opened almost no accounts on MySpace. Also, the MySpace contract is regular, unlike the arrangements with the Platforms in this case, such as Facebook.[xi]
There is an obsolete list of “negotiated” agreements and the official ideation behind assenting to Big Tech TOSes. There is also a webpage with links to the “negotiated” terms of services, which are older than those on the obsolete list. The agreements were made with YouTube (for YouTube and other Google services, Facebook, Twitter, Microsoft’s LinkedIn, and Apple iTunes. Apparently, the main concern that the Obama administration had about Big Tech Platforms’ TOSes was to ensure open indemnification clauses in them.
“GSA and other agencies have negotiated Federally-compatible, amended TOS agreements with over 50 companies that offer free social media applications on the Internet. The approved list includes some of the most widely-used platforms, such as Facebook, YouTube, Linkedin, Blogger, Flickr, SurveyMonkey, and WordPress. The list continues to grow. New companies are added whenever negotiations are successful.”
“IT Software | Planet Earth – Keeping Us Grounded”. This is not directly related but it illustrates that the unnecessary communications channels allow the federal government to stray further from its role.
Twitter incorporated into its TOS (https://twitter.com/tos) limitations of the indemnification by government. That was enough for GSA to recommend accepting it as is, and for many agencies to accept it as is.
Here is just one example of terms to which the Obama administration purportedly bound the United States of America with Twitter:
“We can take action at the Tweet, Direct Message, and account levels, and sometimes employ a combination of these enforcement actions. In some instances, this is because the behavior violates the Twitter Rules. Other times, it may be in response to a valid and properly scoped request from an authorized entity in a given country. Below are a range of enforcement options that we may exercise…”
“Limiting Tweet visibility: This makes content less visible on Twitter, in search results, replies, and on timelines.”
“Requiring Tweet deletion”
“Hiding a violating Tweet while awaiting its deletion”
“Stopping conversations between a reported violator and the reporter’s account”
“Requiring media or profile edits: If an account’s profile or media content is not compliant with our policies, we may make it temporarily unavailable and require that the violator edit the media or information in their profile to come into compliance.”
“Placing an account in read-only mode”
The page with the “amended agreement” has disappeared from its URL after June 2021. It was there from 2011. The amendments limit indemnity and eliminate forum and venue clause. All other terms for ordinary users are preserved.
Amended Terms for Federal, State and Local Governments in the United States” (October 2016)
“… Facebook may use your seals, trademarks, services marks, trade names, and the fact that You have a presence on Facebook or use other Facebook Services, as necessary for Facebook’s regular operation of its Services.”
Additionally, Facebook was explicitly allowed to make some use of the US government seals and place ads on the government accounts. Here is the humiliating wording, even allowing Facebook the freedom to disregard requests made by the US government:
“… if You submit a written request to Facebook to block the display of any commercial advertisements, solicitations or links on your page, Facebook may so agree provided that it has decided to make such blocking technology generally available for pages.”
The agreement is a standalone one, but includes government’s submission to Google’ terms and policies
Google would display government content subject to its policies and terms; additionally, it may stop displaying any governmental content almost at will; the government still bears liability.
In addition, Google and YouTube get the “right” to remove the government’s content on the slimmest pretext, including Google determining that the content may create liability for Google. Google is also allowed to display ads on government content.
None of these Big Tech platforms are necessary or even useful for most government agencies. A website with a contact form and an RSS feed is more than sufficient for each agency. Such websites allow every social media platform, every social media account, every press outlet and website to copy and display governmental information of interest to its users / viewers / readers / followers. Each such website can create a private forum for the discussion of the government content posted on the website.
This is how the federal government worked and continues to work outside of the Internet. It holds a press conference, where it invites press representing the whole political spectrum. The press digests the information and delivers to the public, for the nominal price. More complete information used to be printed in the Federal Register, available by subscription and libraries to everybody.
Before the Obama administration, nobody could imagine that the federal government (or even an agency) would handpick few or even one preferred vendor and communicate with the public through that vendor and on its terms. Nobody would imagine that the vendor would purport to bind citizens interacting with their government by onerous TOSes presented in “browse-wrap” agreements, which are supposedly created when the person visits the vendor’s website. Yes, such agreements are frequently enforced by district courts. Nobody imagined that those vendors would collect users’ personal information directly from computers in their own homes and smartphones on their bodies (“search and seizure”) or discriminate against citizens based on political views. This is however exactly what happened with Big Tech platforms – and very few people seem to be aware.
Notice that the government incurs expenses but does not receive value from these relationships. The communication of the US government to the public is subject to multiple Constitutional and regulatory requirements, and each communication channel increases the cost. Incoming communication is even more problematic. For example, a person can send information to @FBI about a crime in progress, and that person might expect that information to be handled as if it were a call to 911, when, in reality, it is probably ignored.
The Obama administration opened almost no accounts on MySpace, owned by Rupert Murdoch, which was the leading social media platform before it. Also, the agreement with MySpace was almost a normal government – contractor agreement. That was a drastic difference from the agreements with YouTube, Facebook, and Twitter.
It Examples from 2009-2011:
https://web.archive.org/web/20101229054259/http://www.gsa.gov/portal/category/100000 https://web.archive.org/web/20101229054032/http://www.gsa.gov/portal/category/100139 https://web.archive.org/web/20101230142751/http://www.usa.gov/ https://web.archive.org/web/20091231133242/https://www.usa.gov/ https://web.archive.org/web/20101220210937/http://www.defense.gov/ https://web.archive.org/web/20101218212515/http://www.fema.gov/ https://web.archive.org/web/20111229232312/http://www.hhs.gov/ Rare exception: https://web.archive.org/web/20101230110253/https://www.fcc.gov/
The original was published on May 19-20, 2022. Significantly edited and expanded on September 24, 2023. Updated on October 6, 2023.
[vi] https://www.linkedin.com/in/maconphillips/details/experience/. He was Deputy New Media Director in Obama’s campaign.