Bugs in the TOS'ed Salad

I wasn't on my WebTV yesterday, so when someone sent me a note to tell me that the TOS had changed again, I went to the TOS at www.webtv.net on my PC to see.

Nope -- it still says "Release date 11/04/98." I turned on my WebTV and dug through the menus until I found the TOS. Yep, the date for WebTV users is 4/21/99. Not being able to export the new TOS (it's too long for my box to cut and paste, and as part of the WebTV service, I can't send it to my PC), I haven't gotten a chance to see what's really changed... except "thou shalt not" said in more ways.

Once again, WebTV Networks Inc. has changed the "contract" on us without telling us what has changed, why it has changed, and once again has restricted it within the WebTV service so that it cannot be sent out to a prospective WebTV subscriber -- or to a lawyer.

What I do see is that there are at least three places that WebTV prohibits business or commercial use of the box and service -- despite the fact that they sold us two of our boxes specifically for development (business) use, and the fact that WebTV itself works with a number of companies that have their members using the box for business purposes. By the way, these users all "agree" to the same TOS.

What I do see is more and more "prohibited behaviors" that WebTV makes rules about, but makes little or no effort to enforce. I see that WebTV says that you will abide by standards of Netiquette and will not disrupt or post off-topic in "Forums," but still sends out its "if you don't like it, don't go there" form letter to virtually every complaint letter about the trolling, stalking, defamation, and newsgroup destruction that has so many users walking out of "alt.disgust." I see that WebTV still doesn't understand the difference between "Forums" and Chat:

"...in the event that your usage of any Forum results in complaints to WNI regarding your behavior, your privilege to use Chat may be suspended or denied by WNI..."

I still see the contradiction in the Privacy Policy and Terms of Service where WNI says that it will and it won't reveal information when users are abusing the service. I see a "three strikes rule" that WNI says only applies to first-time offenders. Huh? I learned to count "one... two... three" (and also know of a number of users who already have their "three strikes" and are still on the service).

I see, frankly, a TOS'ed salad of inconsistent legal mumbo jumbo that appears to me to be for one purpose only: to convince WebTV subscribers that WNI can do (or not do) whatever it wants and that the users have no recourse because they "agreed to the contract."

I see WebTV's Next BIG Problem.

One of these days before too long, some WebTV subscriber is going to challenge the legalities of the WNI Terms of Service. (This is neither a threat nor a promise because we are not going to be the ones to do it... but it certainly is a prediction.)

It may come because a user has been terminated and then discovers that his box also has been terminated: the new TOS says that the box itself won't be able to be reconnected for a year, so you can now forget about selling that WebTV box you've been shut off from. It may come because some of the harrassment and stalking that is being ignored by WebTV spills over to real life. Unfortunately, we've been seeing too much of that recently, even as WNI continues to turn a blind eye.

I personally hope very much that the challenge results from a civil issue and not a criminal or violent one. But when it does come, we and WNI both will find that there are a lot of bugs in this TOS'ed salad.... both legal bugs, and a huge potential media fallout. They haven't learned from Bill Gates' and Microsoft's email revelations in the MS-DOJ case: all of the evidence necessary is sitting right there in WebTV's own email and newsgroups, and in their consistent effort to hide the existence of this "contract" from prospective users until after they have purchased the terminal.

Bummer! What would serve us ALL -- WNI and the users -- better is for WebTV to move proactively right now to clean up its Compliance/TOS act and make it so my prediction never has to come true:

  1. Identify in all advertising and packaging that a Terms of Service exists that users will be required to sign, and provide a written, current copy on the WebTV website and by mail, 800 number, or fax. WNI is currently at risk because they solicit the purchase and never reveal the conditions or even the existence of the Terms of Service.

  2. Completely re-write the Terms of Service to be simple, understandable, and fair to both WebTV AND its users. A contract is a two-way street; the current TOS is written to try to put all responsibilities on the users and none on WNI. They may convince most of their users that they can do this, but will they convince the court? I don't think so.

  3. Have an outside party review all of the complaints from the last year. There are potentially explosive issues that Compliance has ignored, and since they have swept them under the rug, they are not the ones who should be reviewing them for potential flash points.

  4. Properly staff and supervise the Compliance Department, and require that "Compliance Supervisors" supply a name and an email, phone and contact point so that users can discuss warnings and problems and have a point of appeal. The WebTV subscriber base has grown four-fold in the last year. Here's a bet that the Compliance Department hasn't.

  5. Create a Subscriber Council of respected and mature members of the WebTV Community to consult on issues of behavior and to provide an appeal path on issues of abuse and Compliance.

  6. Notify all users by email when the TOS is changed, with a clear and simple explanation of what has changed and why.

  7. Do not "kill the box." This is stupid -- the box didn't misbehave, and by doing this, WebTV is simply exposing itself to more liability because the terminated user can't even mitigate the damages by selling the box to someone else.

  8. Recognize that just making more rules isn't going to make users behave any better. Set up a fair enforcement of the rules and make them apply evenly to all users.

As long as the TOS and its enforcement is in its current state, it hangs over every WebTV user's head like the sword of Damocles -- because WebTV can terminate you for any reason or no reason -- and there goes all your email, your favorites, and your online identity. But it also hangs over WNI's head like that same sword.

WebTV, clean up that TOS act ... don't wait until someone makes a mess by tossing it back in your face.


Your Opinion?

What do you think WNI should do about the TOS?