So you find yourself in a situation that warrants an online contract. You’re purchasing a service or product, signing on to a social media website, or requesting information/documentation from a company. Almost always, the contract you are signing is an opt-in contract, or you are agreeing to use a product under the stated limitations set forth by a company. Pretty boring stuff. What people fail to realize though, is that opt-in contracts bypass legalities that users overlook due to their own blind intention. Consent to data usage is usual culprit that is brought up in court hearings, small or large, and usually are dismissed from being evidence due to contractual agreements resulting from opt-ins. But that is just the tip of the iceberg, and here’s why:
Opt-in contracts (e.g. Terms and Conditions) are not read by 91% of all signers, and 97% of people aged 18-35, according to a Deloitte study. With how long-winded and legal-sounding it is, you would imagine that the contract would have your best intention when you put your e-John Hancock on the thing? Not really the case. The University of Connecticut did a study on opt-in contracts with a fake social media network, writing a terms of conditions that included users giving up their firstborn as payment for the service and that all information collected would be turned over to the NSA. 98% of users agreed to the contract. Kind of makes you rethink agreeing to something all willy-nilly without reading the fine print.
The biggest issue with online opt-in contracts is consumer protection, how the false pretense of security allows companies to have their cake and eat it too. It can be like the aforementioned situation, where people agree to anything or something as wild as using iTunes to develop nuclear weapons, because why not? Cover your bases. But users need to do the same. The G.I. Joe PSAs said it best :”Knowledge is half the battle.” What is it to read a 5-minute contract to avoid selling your firstborn or worse? Let me give you a simple example on why reading the fine print is everything.
So you’re checking out the newest gadget or the most ‘hype’ social media platform and nothing is stopping you from getting it. You’re signing up and finishing the order/subscription, then this huge legal contract, ‘TERMS OF CONDITIONS‘, smacks on your desktop with a bunch of legal jargon. You think to yourself ‘Psh, only a nerd would read this bunk.’ and click the accept button. Out of nowhere, you hear a window break, footsteps, and suddenly everything goes to black.
You wake up 12 hours later, and find yourself in the Australian Outback (not the steakhouse). Confused and scared of your current situation, you scramble to regain your faculties and notice a large shadowed figure approaching you over this red clay tundra. As your sight comes into focus, you realize the features of this individual all too well: a man adorned with a fang-studded cowboy hat, crocodile leather vest, and a Bowie knife the size of your forearm. It’s Crocodile Dundee, in the living flesh.
He hands you a copy of the contract that you e-signed stating that ‘For you to use our product, you must go three rounds of barrel-knuckle boxing with Crocodile Dundee.’ You are awe-struck. How could this happen? Why couldn’t I just have read what I was signing up for? As you’re considering this, Dundee leans over and whispers ‘That’s the Opt-In Contract, Boyo’, as he squares up.
Could size up to one of the greatest fisticuffs to grace the ‘Down Under’, or the most merciless whooping one could take. It’s subjective, right? Someone would look at this as an honor, while others just wanted to be able to post their blog on three different sites at the same time. But that’s what happens when it comes to opt-in contracts, the choice is yours, either read the fine print or fight Crocodile Dundee(Or just keep that mentality about it). What can be the furthest extent that they take it?
If you’re wondering what other craziness is going on with Big Tech vs The Supreme Court, check it out here and here
Alright, so you’ve gotten this far. Hopefully I’ve heightened your understanding of anti-trusts with wrestling innuendos. Weird combo. I know. Dropping the hammer on huge tech companies for financial wrong-doings and pulling legal suplexes on potential monopolies can be hard. Even with the hearings in the rear-view, I would imagine they will have a lasting effect, maybe.
Tim ‘Do You Know What The Tim Is Cooking?’ Cook
He’s the Apple of the mobile industry’s eye(phone)! He could own the produce section, but he’s going for the entire grocery store! Tim COOOOOK!
Michael. Fake. Banner.
First off, I couldn’t go an entire post without make an easy WWF joke, and this was the easiest one. But Cook only had a few questions asked of him, mostly about having restrictions on third party developers in the App Store. Not saying that they weren’t attention-getting and need more emphasis, but in the grand scheme of who was truly abusing their power, Cook was a minor player.
Tim Cook was a computer science grad from Auburn and Duke, and has a pretty distinct fingerprint in the computer processing world. He had major roles over 13 years with IBM and Compaq before landing his gig at Apple and ultimately becoming Steve Jobs successor. He doesn’t really have the same backstories of Pichai, Zuckerburg, and Bezos. He’s a pretty normal, smart guy that worked his way up the ladder and now he’s CEO of Apple. Enough said.
The Bad Apple
So as formerly mentioned, Apple is in hot water for having restrictions against third-party marketplaces in addition to the App Store. Rep. Hank Johnson wanted to explore the App Store with monopolistic intention due to Apple having absolute control on what was being sold through the phone’s native market application.
In my honest opinion, the argument was weird, like trying to explain the App Store to your grandpa. Open-source platforms like Android have the ability to allow third-party developers, but sacrifice the integrity of the security that comes with its system. I understand why this may raise attention for the sake of market freedom, but allowing opportunists to compromise an operating system is not only bad for the company, but more so for the end-user. Additionally, with Apple having it’s main competitive focus on its smartphones and the App Store having a lower-profit margin from commissions, I don’t see the marketplace being a industry-disrupting monopoly.
But wait! This one is petty…
So within a month after the anti-trust hearings, you would think these companies would be keeping their heads down, right? Wrong. Apple is attacking the small meal-prep company, Prepear, for a similar logo. The premise being that there’s ‘dilution of distinctiveness’ for having a logo that is similar to the chomped produce. As you can see below, this grievance makes absolutely no sense, other than the two companies has some sort of fruit-based name. Not to mention, they are comparing apples to oranges between a tech goliath and a 5-employee meal-prep business. Apple has never had a problem distinguishing their brand from others, so why is this a concern? But I’ll get off my soap box and back to trust-busting.
Sundar ‘The Pitch’ Pichai
The man with the plan, advertising, and corporate structure to fundamentally make/break your business! You could Ask Jeeves, but the guy already killed the butler! PITCH PICHAIII!
Michael Banner (Reoccurring Fake Voiceover)
Sundar Pichai is a great example of the modern-day melting pot; Case and point, he went from a two-room apartment in India to CEO of Google/Alphabet. You know, the company that is interchangeable with the word ‘search’. Pretty big power move. He’s largely responsible for Google Chrome, Google Drive, and G Suite. Anything and everything that makes Google stand out against competing search engines, cloud storage, or web browsers. But with the evolution of Google, it does have growing pains. Google is synonymous with any form of intrusive data-mining. Whether it be a ‘Rick Flair Rant’ that you mindlessly searched for at 3AM or the widely-used analytics platform that they provide for free. They record all that. All that accumulated data is just a diamond in the rough for Google. They use it in everything that we do virtually to the point that they already know what you need before you even look for it. Furthermore, with the lack of competition, it comes as no surprise that they are staring down the barrel of the antitrust gun.
Looking back on this entire hearing, I don’t think that anybody had a worse day in court than Sundar Pichai. The guy couldn’t catch a break.
In a Nutshell
Google was accused of stealing content from small businesses, using their search engine to profit Google products, and censoring anyone that opposed their business model. In a court case focused on literally. not. doing. that. Keep in mind that Google accumulates over 85% of all online searches, so you can see why this is a problem. Add 100+ billion dollars of revenue coming from GoogleAds, you would think that small businesses are getting their money’s worth? Unfortunately, such is not the case. Multiple testimonies had been brought upon Google for advertising representation or lack thereof. All of them from small businesses that rely on the search engine to drive traffic to their companies.
Big on the list was stolen content which was discussed with a couple of examples. The first being Brian Warner, who was brought up in a passing introductory statement. For those that don’t know, Brian Warner is the CEO of CelebrityNetWorth.com. (Why anyone would want to know how much Kim Kardashian is worth is beyond me, but you know, reality.) Between 2012-2016, Warner accused Google of skimming content off of his site for Googles display widgets when you would look up a celebrity’s name on the search engine. Warner wasn’t credited for any of his content, resulting in site traffic and revenue dropping by 80-90% and almost losing his company. The second example and most damning evidence, was Yelp. Another example of ‘skimming’, which is an understatement, Google was taking Yelp reviews of businesses and posting them as their own original content in 2010. After Yelp realizing what was happening and ordered them to stop, Google threatened to ‘de-list’ Yelp from their search engine completely.
But wait, there’s more!
Another problematic area that was brought up was surveillance of competition. Fearing possible competition with certain websites, Google had been diverting search queries away from possible threats towards Google products for years. The smoking gun being a investigative report that showed that 63% of web searches that started in Google ended on Google-owned pages. Point being relevant search results are subjective, with the subject being Google’s cash-flow. Any traffic lost to other sites was a loss of revenue for Google. To put an end to it, Google staff observed sites that were getting ‘too much traffic’ and partially censoring site advertisements once they reached. The monopolistic intention at this point is that Google is raising their price for competitors to reach their users. David Cicilline stated that this ‘Google Tax’ is what any business must pay to ensure virtual exposure and resulting success, rather than the company being sought out organically. Which raises the question, ‘If Google is the main gateway to the Internet and abusing their power, what is stopping them from monopolizing online advertising as a whole?’
Recap of Anti-Trustworthy: The SummerSlam Pay Per View Event – Hereor My Blog
In the midst of all chaos of everything going on, the ANTIFA, the FDA, the CHAZ, the COVID, or the (insert acronym here), it’s become very apparent that people are watching the news rather than the courtroom. I’m not talking TruTV or Judge Judy; I’m talking the big one, the one everyone knows as a branch of the government but honestly doesn’t really give the time of day, The Supreme Court.
For all that have been paying attention to the fear-mongering and politics that every election year usually brings. It doesn’t seem much different than any other one. Candidates muck-raking each other, people banding together to rebel (peacefully or otherwise) against the opposing parties or anyone in general, but this year is different. The rabble-rabble of everything going on has caused people to turn a blind eye to one of the most significant court cases to involve private and public sectors since electricity was ruled a municipality.
If you already know, then you know, and I applaud you for paying attention. I’m talking about the judiciary cage-match that is the 2020 Anti-Trust Hearing. We’re talking Mark ‘The Face’ Zuckerburg, Sundar ‘The Pitch’ Pichai, Amazon Jeff, and Tim ‘Do You Hear What The Tim Is Cooking’ Cook vs. The Supreme Court. Is this the ‘Tables and Ladders’ match of 2020? Because broadcasting wrestling gets as much attention of packing a full stadium? Millennials watch CSPAN, right? Nothing really matters, but listening to people wrestle with their own words is way more entertaining. So let’s begin with the witnesses.
As a disclaimer, I am writing this from a middle-ground perspective. I’m not trying to take sides, only present the information as told by the hearing transcript and my interpretation of it. Like an unnecessary WWF referee.
Amazon Jeff, The Trillion Dollar Man
“Reigning from the Amazonian forest of Albuquerque, New Mexico, we have the one man who has almost cornered the Western online marketplace! The guy that doesn’t have to try, AMAZONNNNN JEFF!”
Michael Buffer (In my head)
Jeff Bezos turned an online book marketplace into the reason why you and I do most of our online shopping. I’ll start with that before the criticism ensues. So burn me at the stake or put me on blast, but the guy started just like I would imagine any entrepreneur would start: ground-up, college-educated (although not necessary), maybe a garage, and a bankrupt idea (which ended putting Borders and Barnes & Noble out of business). Now we’re talking about a ma-bill-a-trillion idea. Something that shifts the paradigm of brick & mortar stores in to a completely online marketplace, and the ‘If I see it, It’ll be at home when I get there’ mentality where you can just buy whatever from wherever whenever.
What He’s In For:
Amazon accounts for almost 39% of all retail eCommerce sales in the entire world and may surpass Walmart as the worlds largest retailer by 2020, according to BigCommerce. Why’s that you may ask, my fellow marketer/WWF enthusiast?
Accusations have been brought against Amazon for buying out private labels and remarketing them as Amazon products to snuff potential competition and to gain market share. Rather than becoming a channel for highly sought-after businesses to sell their products through Amazons marketplace platform, the company are buying them outright and merging them as a subsidiary under contract law to make them exclusively sold on Amazon. Inlaymen terms, the lemon orchard bought your lemonade stand and now you can only sell lemonade for them. The same can be said for cloud-computing with tech companies and video streaming with broadcasting, where the contracts can be repeating or indefinite. So when you turn your back on them, they give you the chair, the legally-binding contract chair.
Mark ‘The Face’ Zuckerburg
“He has access to most of the pictures of your dog, significant other, and food like an open book! He knew what you did last summer, and most likely anything after the mid-2000’s! The Man! The Data! THE FACE.”
Also Michael Buffer (in my head)
I would be confused if you found this post on social media or really anywhere on the internet, and not know who Mark Zuckerburg is. He came up with Facebook to get back at his ex-girlfriend and made the most successful social media platform known to date, according to ‘The Social Network’. But simplicity aside, Facebook has 1.7 billion active users daily and has become multi-faceted in the means of communication, advertising, eCommerce, and data-collection (notice the trend here). Apparently getting back at your ex-girlfriend almost always ends up in a multi-million dollar company? I guess it was a ‘all is fair in love and war’ scenario.
What legal book is being thrown at him:
So you are being accused of having a potential monopoly on social media, using your influence and wealth to hammer away at any other companies potential. So what is a big way to get caught? If you answered ‘talk about buying out competition over internal e-mails’, you would be pretty on point. Mark was doing exactly that with the acquisition of Instagram, knowing that they were a competitor from the get-go. Another book being thrown at Zuckerburg was censorship. Specifically towards voices of very specific viewpoints.
He stated that ‘Instagram could meaningfully hurt our business without becoming a huge company’. He’s was referring to Instagram as a site with a high concentration of users sharing photos while Facebook’s main focus was on social networking. Facebook was making the revenue, but wanted to make more. Instagram had a niche consumer-base and a focus on photo-sharing. It would make sense that the two would combine their efforts to make an optimal social media channel? If it would have been left at that, I wouldn’t be talking about this. What did catch Rep. David Cicilline’s eye was an email between Mark and Facebook’s CFO, David Wehner. The email read “What we are doing is buying time. Even if a competitor springs up, those products won’t get much traction since we already have their mechanics deployed at scale” So by adding barriers of entry through technological superiority, a business would be destined to fail. Doesn’t sound like a merger/acquisition violation of any FTC anti-trust laws at all?
Buying out a new competitor to neutralize a potential threat, no matter how big or small, with intention of ‘substantially lessening competition’ is a violation of The Clayton Antitrust Act. The Act addresses potential competitive mergers that would add a heightened barrier of entry, such as discriminatory pricing or technology.
In Mark’s words, “In hindsight, it probably looks obvious that Instagram would reach the scale that it has today. At the time it was far from obvious, a lot of competitors competed in mobile sharing. I’m including companies like Path, which were hot at the time. Dave Morin and I worked closely with them. I mean, I don’t even think Path exist today.”
So wait, Path, a social media network that was created in 2010 by Mark’s former product manager, who you just mentioned in the same statement? Let’s back up. In February 2012, Path had accessed and stored user contacts without user permission, which they were appropriately criticized for. But a year later, FTC fines them $800K for storing data of underage users, resulting in a policy assessment every two years for the next twenty years (2013-2033). With the combination of the scathing news, the resulting lack of capital from dropping investors, and recurring invasion of privacy that put them on 60 Minutes, Path finally shut their domain in 2018. But for the company to shut down less than two years before this hearing was held, this hits pretty close to home.
Facebook also had it’s judicial stint dealing with freedom of speech, which took up a good chunk all questions Zuckerburg was asked. The outstanding ones were possible political involvement and censorship. These were pretty bad allegations from borderline treasonous bad to plain hypocritical bad, so lets break them down from fundamental arguments.
The Cambridge Analytica Argument
Facebook was asked about it’s involvement, intentional or otherwise, to undermine the 2016 Presidential Election. The allegation was based on Cambridge Analytica’s data that was harvested from Facebook users with out consent and subsequently leaked (read: sold) to political campaigns between 2014-2018. This is a pretty open-close case against Facebook, but what really brings a bad light to it was the fake accounts being used by the research firm. The Cambridge Analytica team used three personality traits (Narcissism, Machiavellianism, and Psychopathy) to form a baseline profile of a small percentage of people that would be most threatened by political motives. From there, they used numerous fake Facebook accounts and pages to create increasingly manipulative messages towards this psychographic profile to activate them under different viewpoints and values. But it was massively successful, as shown from the 2016’s Presidential Election being an extremely polarizing point towards pressing issues like race, religion, and rights.
The biggest takeaway from this is just that. Driving a political machine as social media channel is one thing, but misdirecting extremist values towards individuals that are more likely to commit hateful acts is a completely different thing. The argument still stands in 2020, but now there’s more to the script. We have two polarized groups that are fueled through social media, determined that the other one is wrong. I don’t really need to go on about anymore, since it’s broadcast daily, but just remember how it started.
The Tide Pod Argument
Facebook was being accused of ‘filtering out certain speech’, focused on certain arguments on the efficacy of hydrochloroquine, a proposed vaccine for COVID-19. The main argument was that a patient and doctor have the ultimate decision when choosing the correct medication, and Facebook shouldn’t be the gatekeeper of information in this regard. Zuckerburg’s retort was that Facebook has ‘policies that prohibit content that would lead to imminent risk of harm or cause adverse effects, but do not prohibit discussion around trials of experiment drugs’.
When I heard this, all I could really think about was the Tide Pod Challenge. The one getting kids to eat single-use laundry detergent pods for likes and ending up in the hospital? Yeah, that one. Which is weird, because I never went out of my way to search for the challenge, but yet I kept seeing it in my ‘related videos’ on Facebook. So basically to contradict Zuckerburg’s own words, The Tide Pod Challenge was content that Facebook allowed that would obviously lead to imminent risk of harm and adverse effects, but hydrochloroquine was prohibited because of the same policy.
Obviously, this theory does have it’s discrepancies. Tide Pods obviously are not for consumption, anyone that remotely thinks it’s a good idea to eat them should seek help, and there are a lot of professional opinions on the COVID drug. But honestly, I’m at a standstill on this one because it goes into one of the most stupidly-genius legal contract ever created by man:
The Opt-In Contract (Coming Soon)
Round Two: Sundar ‘The Pitch’ Pichai and Tim ‘Do You Smell What The Tim Is Cooking’ CookHere