Federal Gov’t (GSA) Refuses to Make Public Agreements with Facebook, MySpace, etc. Is data from individuals seeking gov’t information going to these sites?

Today we asked the GSA to make public the negotiated agreements (terms of service) it has made with social networking companies such as Facebook and MySpace (it has also made deals with Google’s YouTube, etc., see below).  The GSA has been negotiating with a number of new media companies so that federal agencies can provide information and services on such sites (GSA says it has been doing so to help answer “President Obama’s call to increase citizen participation in government”).  One central question we have is whether these private commercial providers are going to have access to citizen and other public data when we use these sites.  We also want to know if the Federal government will be provided information, such as web analytics, about citizen/public use of these services.  We have concerns about enhancing the ability of the government and private companies to gain access, and analyze, our information.  Here’s what the GSA press office emailed me back:

Thank you for your interest in the new media agreements.
At the request of the providers the agreements themselves will not be shared with the public.
However I can share some more details about what was negotiated. Hope this helps!

Terms of Service Agreements with Social Media Providers
Frequently Asked Questions

1.  Why is the government working on these Terms of Service (TOS)?
Over the past six months, a coalition of federal agencies (led by GSA’s Office of Citizen Services) has been working on Terms of Service agreements with a broad range of social media providers who offer free services to users. The objective is to resolve issues with the existing standard Terms of Service that are problematic to federal agencies (see list of issues below). Having these agreements means that, if an agency chooses to use various social media sites, they won’t have to start from scratch on negotiating a special TOS.

2. Which social media providers are you working with?
We’re negotiating tailored TOS with a broad range of providers. We’ve completed agreements with YouTube, Facebook, Myspace, Blist, Slideshare, AddThis, Flickr, and Blip.tv. We’re hoping to negotiate agreements with additional providers, including Yahoo Video, Vimeo, iTunes, and others.

Regarding Twitter, several agencies’ attorneys have advised that there are no issues in signing their standard Terms of Service; thus, we’re not negotiating any special TOS with them.

The government is working with a broad range of social media providers and is showing no favoritism. Nor do we expect any favoritism once agencies are able to sign up to one or many providers. We’ve chosen to start with these providers since they’re some of the most high-volume sites on the Web.

3. Will these agreements allow government agencies to use social media tools such as YouTube and Facebook?

Yes, having these pre-negotiated agreements that have been accepted by other federal agencies should make it easier for the government to use a wide range of social media tools. While we believe having these agreements will remove legal barriers to use these tools, you’ll still need to work with your agency attorneys before signing the agreements. Most importantly, you’ll need to think strategically how you’ll use these tools to accomplish your agency’s mission.

4.  Can any federal agency use these TOS?

Yes. But you need to work with your agency attorneys and any other key stakeholders to be sure your agency can agree to the legal provisions of each agreement. Because several agencies helped to negotiate these agreements, it’s expected and hoped that most other agencies will find the language acceptable.

If you’re at a sub-agency or bureau with a cabinet department (for example, CDC or FDA), you should work with contacts at the cabinet department-level (that is, HHS). This is important since, in most cases, a single agreement is being negotiated and signed for the entire department.

5. What about state or local agencies?

At this point, the agreements we’re working on only cover federal agencies. However, some of the providers are looking at negotiating special TOS for state agencies. We’ll post updated information as soon as it becomes available. If you’re a state agency and already have an agreement with a social media provider that other state agencies can use, please feel free to share.

6. Are the TOS the same for each provider?

No. Each agreement is different. Since these are free services, we lacked the leverage to impose a one-size-fits-all agreement, and instead worked to modify, in a consistent way, each company’s pre-existing TOS. Your agency will need to sign a separate agreement with each provider. However, we’ve attempted to negotiate agreements that are as similar as possible and achieve the same goals for each social media site, such as deleting material agencies cannot agree to (the indemnification clause, governance law, etc.) and inserting provisions that protect the culture and status of agencies (restricting advertising, avoiding the appearance of endorsement, etc.). See a fuller list of issues below.

7. Can agencies negotiate their own Terms of Service?

The goal behind this effort is to create a standard Terms of Service (for each provider) that can work for all federal agencies. So the preference is for agencies NOT to negotiate their own TOS. Understandably, in the absence of monetary incentive, the social media providers don’t want to negotiate different TOS with dozens (or hundreds) of different agencies, since that would be a costly effort. It’s also not efficient for the government to negotiate dozens of different agreements.
[In the particular case of YouTube, the arrangement calls for only ONE Terms of Service to be used by all federal agencies. Google, the parent company of YouTube, does not intend to negotiate separate agreements for individual agencies].

8. How can I get a copy of the agreements?

Because some of the providers prefer not to publish the tailored federal TOS on a public website, we won’t be posting them on WebContent.gov.

The issues and solutions we’ve collectively negotiated include:
•    Indemnification and limited liability:  in negotiating the various agreements, we’ve been seeking to remove the indemnification clause (because agency officials cannot agree to tie their agency to unlimited liability in violation of the Anti-Deficiency Act), and to ensure that liability is limited and covered by federal law.
•    Jurisdiction and choice of law:  the proposed agreements must be governed by the law of the United States and by the relevant state law only in the absence of other federal law.
•    FOIA:   the proposed agreements recognize that we adhere to the Freedom of Information Act.
•    Intellectual property:  the proposed agreements recognize that our content is in the public domain
•    Advertising:  providers have assured that they will eliminate or minimize advertising and that they have no intention of adding advertising that they do not currently display.  On YouTube, for example, they plan to remove the “Promoted Videos” module on playback pages.
•    Grandfather arrangements:  In the case of YouTube, previous “click through” agreements will be superseded by new agreements, making it possible to “cover” existing accounts, avoiding the need to close old accounts and rebuild content from scratch.
•    Free Service:  in every case so far, providers will not charge federal account holders for the use of their services.  These are not contracts; they are no-cost agreements.  While fee-based “premium” services may be available from the same provider, those are separate arrangements for which the agency should proceed under traditional “procurement” processes.

Author: jeff

Jeff Chester is executive director of the Center for Digital Democracy. A former journalist and filmmaker, Jeff's book on U.S. electronic media politics, entitled "Digital Destiny: New Media and the Future of Democracy" was published by The New Press in January 2007. He is now working on a new book about interactive advertising and the public interest.

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