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.

“behavioral targeting on steroids” is how one major interactive advertiser describes rush to create “goldmine of information” on consumers

Excerpt from a column written by Domenic Venuto of Razorfish.

“Data is now sexy. Very sexy. At the same time that publishers were looking to capture market share online they realized they sit on a gold mine of information that isn’t used anywhere near its potential… Suddenly publishers turned their attention to data. They became interested in building unified customer databases, repositories that captured a 360 degree view of the customer and consolidated behavior across brands and distribution channels. Whatever the phrase, it is behavioral targeting on steroids. All efforts focused on consolidating information about a user’s online activity with their offline behavior…Publishing aside, financial companies, CPG and retailers are also extremely focused on data. They collect data from every customer interaction—television ads, mailers, Web visits, call center calls, deposits, coupons—and connect the data dots between customer touch points to understand the effects of each interaction on the acquisition and retention lifecycle.”

Google Tells Advertisers it has the “Largest Global Network” for “Pinpoint targeting”

Google says that in the Ad Age Ad Networks and Exchanges Guide.  Here are some excerpts:

The Google Content Network can efficiently and effectively meet your advertising needs. Not only do we have the largest global network,1 but our product and engineering teams have developed a range of solutions—from contextual targeting to real-time reporting—that help you and your clients create, launch and optimize campaigns that deliver results.

Connect with your audience, large or small
  • Consumer behavior is shifting toward niche sites.3 With sites spanning broad and premium niche, the Content Network gives you access to hundreds of thousands of sites and millions of consumers.
  • Select your audience based on their interests—whether they’re sports enthusiasts or social activists—and our targeting technology will find them across the Content Network.
  • We give users the ability to edit the interests we think they have, providing a new level of transparency for users and better targeting for you…Broad reach. Pinpoint targeting. Efficient prices. Better ROI. The Google Content Network…

    Network Reach

    As the largest ad network in the world, and fourth largest in the U.S., the Google Content Network reaches 75 percent of international Internet users and 76 percent of the U.S. online audience.*
    *Source: comScore, February 2009

“Microtargeting at scale”–a look at one Behavioral Targeting Online Ad Network

We urge everyone, including the FTC and Congress, to review Ad Age’s “Ad Network & Exchange” guide published on April 20, 2009.  Much of it is online.  Here’s an except from Tribal Fusion:

We offer:

  • Vertical expertise
  • Deep customer insights
  • Comprehensive targeting tools…Tribal Fusion works with a broad array of data sources to provide a true 360º consumer view. We aggregate data to pinpoint interests, past actions and likely future behaviors. This enables each campaign to get smarter over time, informing clients about which data points are making consumers convert.
    Microtargeting at scale

    Tribal Fusion can deliver personalized messaging to multiple niche audiences on an exceptional scale, combining consumer understanding with comprehensive targeting technologies and dynamic creative. The content of a single ad unit can be tailored by the geography, demographics and lifestyle of individual viewers, producing thousands of personalized ads in real time. Ad units with dynamic copy can perform six to seven times better than static ads.

Tales of Behavioral Targeting: Barry Diller’s IAC Can “tap into rich behavioral….information” of users

The IAC Network includes sites such as Citysearch, Evite and Match.com  From Ad Age, Page C46.  April 20, 2009 [excerpt]:

“…we can tap into rich behavioral and declared information about our users.  Translation:  We know a lot more.  For example, we know if a user exercises regularly, searches for expensive restaurants in New York, is looking for a new home to purchase, has dogs or attended a bachelor party.  Analysis of these multiple dimensions of attributes (literally millions) delivers an unmatched level of insight into our users and what’s important to them.  And we’re making that intelligence work for you.”

Cable TV’s Targeted & Interactive Ads: Benefiting from a “enormous fire-hose of data”

excerpt from Advanced Advertising.  Linda Hardesty.  Cablefax.  April 1, 2009:  “There’s a lot of technology in place for data collection,” said Ross [Doug Ross, Cisco’s VP of business development in the service provider video technology group]. “We can collect almost an unimaginable amount of data at a granular level. The industry grapples with what’s the right architecture that would make this enormous fire-hose of data more useful.”

“The challenge is the enormity of that whole set of data,” agreed Woidke [Paul Woidke, SVP and general manager of advanced advertising at Open TV – and chair of SCTE Digital Video Subcommittee (DVS) Working Group 5]. “Eighty-five percent of homes in the U.S. have some kind of satellite or wired connection with a potential return path.”

Instead of just getting Nielson data for a selected sample of homes, a cable operator could gather data from all its subs and know what people watched, when they watched it, and how they behaved in terms of pausing, rewinding and fast- forwarding.

Cable’s Big Six Canoe Ventures & Privacy: “We can certainly compete with a cookie”

That quote is attributed to David Verklin, CEO of Canoe Ventures, when he spoke at a recent industry marketing event.  As noted by Inside the Marketers Studio, Mr. Verklin said that:

I think the TV can do a pretty good job at targeting. “We can certainly compete with a cookie.” Can tie it back to set top boxes, loyalty cards. 90% of grocery shopping happens with loyalty cards.

Cable Giants Canoe Ventures and Your Set-top Box Data [Annals of Telling Congress One Thing, But Insiders Another]

From a November 2008 report on Canoe CEO David Verklin’s speech at the “NewTeeVee Live” conference.  Excerpts:  Canoe Ventures outlined its strategy today at the NewTeeVee Live conference in San Francisco, where David Verklin, the CEO, outlined the cable industry’s answer to the competition from online video…“Data is the new creative,” Verklin said. He said Canoe thinks the key to that data is the set-top box that’s already hooked up to the televison. That box can tell advertisers exactly how many people are watching an ad.

And this excerpt on Comcast’s data mining warehouse from a January 2009 report in Multichannel News.  Excerpt:  Comcast has sketched out plans for a gigantic database called “TV Warehouse,” able to store a full year of statistics gathered from digital set-tops in more than 16 million households nationwide, according to an industry executive familiar with the project.  TV Warehouse, envisioned as having a massive 500 Terabytes of storage, would then feed up to a database even broader in scope operated by Canoe Ventures, the advanced-advertising venture formed by Comcast and five other large MSOs.  The idea: to give advertisers an enormous set of actual viewing metrics — showing exactly what millions of cable customers watched and when — as opposed to representative samples.

Canoe CEO David Verklin has said the venture expects in the near future to provide viewing metrics for 32 million U.S. cable households, representing about 57 million set-tops.  “One of the first things we must do is bring set-top data into the marketplace and make that the currency,” Verklin said, speaking last November on a panel at the CTAM Summit.  Detailed audience measurement metrics, in Verklin’s view, are crucial to Canoe’s aims to sell interactive-TV services and deliver ads that are “addressable” to individual set-tops.

and an excerpt from an interview with Canoe’s chief technological exec Arthur Orduna.  Worth thinking about the implications:
And when a viewer does respond, or requests information, what happens?

[Orduna]:  There the local system comes into play, and so does Canoe, actually. Because whatever I click will be collected into a separate aggregation server by the MSO or the system. That information would then be sent to a centralized Canoe aggregation server, because we’d be managing all the information for that particular campaign. And then whatever would need to be done with that data, whether it would need to be presented back to the subscriber, or whether it would be compiled for fulfillment or reporting, that would be Canoe’s responsibility.

David Vladeck Appointed FTC Consumer Protection Director– Promoting the Public Interest Will Be High on Agency Agenda

Today’s announcement by FTC Chair Jon Leibowitz that he has appointed highly regarded public interest legal scholar and litigator David C. Vladeck as the new Director of the Bureau of Consumer Protection is terrific news.  Mr. Vladeck has spent decades as a dedicated public interest attorney at Public Citizen.  More recently, he has co-directed the critically important Institute for Public Representation at Georgetown University (where he is also a professor of law).

We expect Mr. Vladeck will vigorously pursue, with Chairman Leibowitz’s support, a serious consumer protection agenda.  Think about mortgages and other financial products, health marketing, privacy, online advertising, food marketing to children and adolescents–all of these issues and more will now get the intellectual and strategic attention they deserve.   Chairman Leibowitz deserves praise for selecting Mr. Vladeck.  The Chairman also heeded the call last month from leading consumer and privacy groups, including Consumers Union, CSPI, USPIRG, Privacy Times, and my CDD, that he appoint someone truly dedicated to consumer protection.  We are looking forward to a new era at the FTC.