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Uber’s pending sale of your personal data

This is a second draft of this post, corrected by Denise Howell’s comment below. Key facts: I am not a lawyer. She is. Good one, too. So take heed (as I just did). And read on.

nouber

Uber has new terms for you:

User Provided Content.

Uber may, in Uber’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Uber through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content”). Any User Content provided by you remains your property. However, by providing User Content to Uber, you grant Uber a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Uber’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.

The emphasis is mine. Interesting legal hack there: you own your data, but you license it to them, on terms that grant you nothing and grant them everything.

Talk about a deal breaker. Wow. (Except it’s also the old deal.)

Here’s the prior (and still current) version.

The new one goes into effect on 21 November. As I read that (when I wrote the first draft of this post), they have sale on personal data pending until that time.

For what it’s worth (nothing, given the above), here’s Uber’s privacy policy.

Meanwhile, here are Lyft’s terms:  Its privacy policy is on the same page, but here’s a direct link.

At the very least, Lyft should make hay on this, if they actually do have an advantage in the degree to which they protect privacy. (Denise, below, says they don’t. But hey, maybe they could if they wanted to compete on privacy.)

Here’s what matters (and remains unchanged from Denise’s corrections):::

We need our own terms. Meaning each of us should be the first party in agreements with service providers, not the second. Meaning they need to agree to our terms.

That’s Customer Commons’ reason for being. Just as Creative Commons is where you will find copyright terms you can assert as an artist, Customer Commons will be where you will find service terms you can assert as a customer.

With the wind of new .eu and .au  privacy laws (e.g. the EU’s GDPR) at our backs, we stand a good chance of making this happen.

The question is how we can get some mojo behind it. Thoughts welcome. Shoulders to the wheel as well.

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7 responses to “Uber’s pending sale of your personal data”

  1. Doc Searls Weblog · Uber’s pending sale of your personal data – Local On-Demand Economy

    […] Source: Doc Searls Weblog · Uber’s pending sale of your personal data […]

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  2. John Wunderlich Avatar
    John Wunderlich

    #IamNOTtheProduct

    Reply
  3. Denise Howell Avatar
    Denise Howell

    Hi Doc,

    Nearly every site that accept user submissions have some species of this term. Google’s is better than Uber’s, in that it limits the purposes to which the very broad license can be put, and notes that some specific services limit the scope of Google’s use even further:

    “When you upload, submit, store, send or receive content to or through our Services, you give Google (and those we work with) a worldwide licence to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes that we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights that you grant in this licence are for the limited purpose of operating, promoting and improving our Services, and to develop new ones. This licence continues even if you stop using our Services (for example, for a business listing that you have added to Google Maps). Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services. Make sure that you have the necessary rights to grant us this licence for any content that you submit to our Services.”

    Both the existing version and incoming version of Uber’s terms let Uber “exploit [user submissions] in any manner.” Privacy policies are a little different though. They don’t grant a legal license from the user to the site, but instead advise the user what sort of information is being collected about them and how it may be used. It’s informational, a disclosure. Its purpose is to let users vote with their feet if they don’t like what they read (they don’t read though, of course), and to also to give services cover (“hey, we told you we were doing this”).

    Re Lyft, it has no basis to make hay here. Under its terms, users grant Lyft a license to all the “copyright, publicity, and database rights you have in your Information, and to use, copy, perform, display and distribute such Information to prepare derivative works, or incorporate into other works, such Information, in any media now known or not currently known.” It doesn’t user Uber’s specific language — “exploit in any manner” — but since users are licensing to Lyft all the “copyright, publicity, and database rights” they themselves have, it amounts to the same thing.

    It’s going to take users, and on their behalf courts, getting (more) upset about this ubiquitous state of affairs for meaningful change to occur. The way this plays out now is on a piecemeal, case-by-case basis. That is, some particularly egregious, unnegotiated, rights-forfeiting term gets challenged in court and perhaps the court finds it unenforceable. Companies and their lawyers are on notice from that point forward that best drafting practices shouldn’t include that term, or if they do, they term may be nothing more than unenforceable window dressing. (I say “may be” because different courts in different jurisdictions can and do deliver conflicting outcomes when confronted with similar terms.) The way it could play out in a helpful way going forward is for more companies and their legal teams to wise up to the fact it’s in their best interest to make their rights-grabs just broad enough for them to get their business tasks done, and not broader. That’s a hard sell though, because companies always want to keep their options open to change and grow, and it’s cumbersome to have to go back to users to obtain more rights they haven’t yet grabbed.

    Washington won’t help here any time soon. I’m guessing we won’t see legislation or regulation that, for example, starts from the premise that otherwise enforceable* terms of service aren’t “contracts” in the conventional sense of a meeting of the minds following negotiation. The principle that users don’t “have” to accept the terms they’re given, and can do business with other companies whose terms they like better, will continue to prevail. Trouble is, examples of companies opting to compete on the basis of having user-rights-respectful terms are few.

    On the bright side, more people pay attention to and discuss this issue, and actually read and recognize the worst of the terms governing these relationships, than ever before. Consciousness has been and will continue to be raised. We need to positively reinforce the good actors, and continue to call out the bad ones whether they’ve been intentionally or carelessly so. Which is just what you’ve done here, bravo, keep it up!

    *See http://blog.ericgoldman.org/archives/2015/02/the-browsewrapclickwrap-distinction-is-falling-apart.htm

    Reply
    1. Doc Searls Avatar
      Doc Searls

      Thanks, Denise. I think that’s the gentlest anyone has applied egg to my face. So I hope I’ve cleaned most of it off with edits to the post.

      Interesting fact: I wrote this post after taking the word of somebody else that the highlighted language in Uber’s new terms is new. I trusted that person’s authority (which is substantial), when I should have checked the old and new terms myself. I’m not a lawyer, but I am a journalist, and I blew it on that one.

      I should add that the main purpose of this post was not just to give Uber shit (much as they deserve it for having terms like this), but to raise interest in Customer Commons, and the real possibility — almost unthinkable after a century and a half of normative but relentlessly one-sided adhesive non-agreements — that the “user” (a term I hate) or the customer can actually be the first party and the service provider the second party. Any help you can provide in that direction would be most welcome.

      And thanks again for the schooling on this one. Good to have.

      Reply
  4. Brian Burwell Avatar
    Brian Burwell

    I have never used uber and now never will.

    Reply
  5. Denise Howell Avatar
    Denise Howell

    Schooling you was far from my intent! These clauses are among the most problematic in customer (:D) agreements, but really common. Some are really broad (and Uber’s is), and some have actually listened to their customers and walked them back (like Google). Banging the drum as you’ve done is how that happens, so that’s not egg — it’s victory.

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  6. pinboard November 22, 2016 — arghh.net

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