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Roger Clarke's 'Second-Party Exposure - Google'

Internet Users' Second-Party Exposure
Detailed Analysis - 2: Google

Version of 24 December 2010

Roger Clarke **

© Xamax Consultancy Pty Ltd, 2010

Available under an AEShareNet Free
for Education licence or a Creative Commons 'Some
Rights Reserved' licence.

This document is at http://www.rogerclarke.com/EC/IU-SPE-A2-Google.html


Introduction

In comparison with the other eight analyses undertaken in this sub-project, the experience of studying Google's Terms was bewildering. This is in part because of the number of offerings, in part because of the instability of those offerings ('permanent beta'), and in part because of the labyrinthine nature of the web-site. The difficulties are exacerbated by the labyrinthine structure of the documents that express the Terms applicable to the services: the Google Gmail, Groups, Docs, Apps and specific Apps services are variously subject to base Terms in one document, additional Terms in another document, and a considerable number of add-on documents dealing with aspects such as privacy, copyright and abusive content.

This document contains the following segments:

* Gmail - Detailed Analysis and Extracts from Terms

* Groups - Detailed Analysis and Extracts from Terms

* Docs - Detailed Analysis and Extracts from Terms

* Apps - Detailed Analysis and Extracts from Terms


Detailed Analysis and Extracts from Terms

(a) Google Gmail

The Terms grant Google a substantial licence in relation to all content passed through Gmail. This includes to "publish", "publicly display" and "to distribute". This is subject to "for the sole purpose of enabling Google to display, distribute and promote the Services". On the other hand, that 'sole purpose' is explicitly extended to permit disclosure "to other companies, organizations or individuals with whom Google has relationships" subject to the limited constraint that it be "for the provision of syndicated services". Moreover, the licence appears to be further extended by a clause that says "advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information".

The nature of messaging services is that there is at least one other party involved. It is clear that a user grants this very extensive licence in respect of all content that the user sends to other people. It is unclear what the position is in relation to content sent by other people to the user. It is reasonable to assume, however, that Google uses that content to target ads at the user, and hence imputes for itself a licence to use the incoming content, whether or not it actually has one.

There is a further clause suggesting that the licence "may be revoked for certain Services as defined in the Additional Terms of those Services", but it is unclear what those 'certain' services are.

The Terms can be varied unilaterally by Google, without notice (as that term is understood at law). Only the current versions of the four documents that make up the Terms are visible. Most carry neither a date nor a version-number. The Terms document is dated April 16, 2007.

The licence appears to be indefinite, which arguably represents authorisation for Google to retain the content indefinitely, including after the user issues a deletion instruction, and after the user or Google terminates the agreement. Deleted content continues to be usable while the user continues to use the service. Even after termination of the agreement, all content that all users have ever provided continues to be usable by Google for

Users are at risk of Google taking advantage of users' content under the following circumstances:

Extracts from the Gmail Terms of Service

http://mail.google.com/mail/help/intl/en/terms.html - undated, mirrored at http://www.rogerclarke.com/EC/IU-SPE-T-Google-01.html

http://mail.google.com/mail/help/intl/en/legal_notices.html - undated, mirrored at http://www.rogerclarke.com/EC/IU-SPE-T-Google-02.html

http://www.google.com/accounts/TOS - version of April 16, 2007, mirrored at http://www.rogerclarke.com/EC/IU-SPE-T-Google-03.html

Terms of 10 December 2010, mirrors downloaded 14 January 2011

From http://mail.google.com/mail/help/intl/en/legal_notices.html:

Google does not claim any ownership in any of the content, including any text, data, information, images, photographs, music, sound, video, or other material, that you upload, transmit or store in your Gmail account. We will not use any of your content for any purpose except to provide you with the Service.

From http://www.google.com/accounts/TOS:

9.4 Other than the limited license set forth in Section 11, Google acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Google, you agree that you are responsible for protecting and enforcing those rights and that Google has no obligation to do so on your behalf.

11. Content license from you

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

11.2 You agree that this license includes a right for Google to make such Content available to other companies, organizations or individuals with whom Google has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.

13.5 When these Terms come to an end, all of the legal rights, obligations and liabilities that you and Google have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation ...

17. Advertisements

17.1 Some of the Services are supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information.

17.2 The manner, mode and extent of advertising by Google on the Services are subject to change without specific notice to you.

17.3 In consideration for Google granting you access to and use of the Services, you agree that Google may place such advertising on the Services.

19. Changes to the Terms

19.1 Google may make changes to the Universal Terms or Additional Terms from time to time. When these changes are made, Google will make a new copy of the Universal Terms available at http://www.google.com/accounts/TOS?hl=en and any new Additional Terms will be made available to you from within, or through, the affected Services.

19.2 You understand and agree that if you use the Services after the date on which the Universal Terms or Additional Terms have changed, Google will treat your use as acceptance of the updated Universal Terms or Additional Terms.


(b) Google Groups

The Terms grant Google a substantial licence in relation to all content placed in Google Groups. This includes to "publish". This is subject to the constraint of "solely for the purpose of displaying, distributing and promoting the Service or any other Google Services". On the other hand:

The Terms can be varied unilaterally by Google, without notice (as that term is understood at law). Only the current versions of the document is visible. It is undated.

Changes to Terms may apply to all content, including content submitted under earlier Terms; and hence the assurances that exist may be able to be withdrawn at any time, without notice.Users are at risk of Google taking advantage of users' content under the following circumstances:

Extracts from the Groups Terms of Service

Terms at http://groups.google.com/intl/en/googlegroups/terms_of_service3.html - undated and unnumbered version, new version mirrored at http://www.rogerclarke.com/EC/IU-SPE-T-Google-04.html

Terms of 10 December 2010; but note that, when revisited on 14 January 2011 to extract a mirror-copy, it appeared that the file had been amended later on the same day as the (old) version had been analysed. It was not apparent what changes had been made, and no copy of the old version exists, so the Terms require re-analysing in their entirety to find the change and/or re-analyse their impact

1. Description of Service

Unless explicitly stated otherwise, the Service may be modified or terminated at any time by Google for any reason, and without notice, without liability to you, any other user of the Service or any third party. Any new features that augment or enhance the current Service shall be subject to the Terms of Service.

2. Changes to Terms of Service

The Terms of Service of this service are subject to update by Google at any time with or without notice, and you can review the most current version of it online at any time at http://groups.google.com/googlegroups/terms_of_service3.html.

5. Content
Content Removal and Archiving.

If you are not the Owner of a Group, you may (1) request removal of a message that you have Posted yourself or (2) prevent archival of your message. (For more information about preventing archival, please see our FAQ.), which says:

To prevent a message from displaying after the usual seven days, or from being searchable on Google Groups after being removed, make sure it contains the text 'X-No-Archive:' either in the message header or as the very first text in the first line of the message body.

7. Proprietary RightsYour Rights

By submitting, Posting or displaying Content on or through the Service, you grant Google a worldwide, non-exclusive, royalty-free license to reproduce, adapt and publish such Content on the Service solely for the purpose of displaying, distributing and promoting the Service or any other Google Services. This license terminates when such Content is deleted from the Service. Google reserves the right to syndicate Content submitted, Posted or displayed by you on or through the Service and use that Content in connection with other services offered by Google.

8. General Practices Regarding Use and Storage

You agree that Google has no responsibility or liability for the deletion [of] ... any Content maintained or Posted by or through the Service.

10. Advertisements

Google Groups is an ad-supported service. As such, we display advertisements and promotions on the Service. The manner, mode and extent of advertising by Google on the Service are subject to change. You agree that Google shall not be responsible or liable for any loss or damage of any sort incurred as a result of any such dealings or as the result of the presence of such advertisers on the Service.

15. Term and Termination

Our proprietary rights, disclaimer of warranties, indemnities, limitations of liability and miscellaneous provisions shall survive any such termination.

16. Notices

Google may provide you with notices regarding the Service or these Terms of Service by email or postings to this Web site.


(c) Google Docs

The Terms grant Google a substantial licence in relation to every document placed in Google Docs. This includes to "publicly display" and "to distribute".

The constraint is for the purpose of "enabling Google to provide you with the Service". The expression 'the Service' is defined to mean Google Docs. However, the Term is open to wide interpretation. One reason is that Google has a philosophy approximating to 'permanent beta', by which is meant that 'the Service' may change frequently. Another reason is that the Service is determined by Google, rather than by the Terms. (In contrast, Infinite only gains a licence for the restricted purpose "to fulfill [Infinite's] obligations under this agreement").

The Terms can be varied unilaterally by Google, without notice (as that term is understood at law). Only the current versions of the two (or possibly five) documents that make up the Terms are visible. They date from respectively April 2007 and September 2010.

Changes to Terms apply to all content, including content submitted under earlier Terms; and hence the assurances that exist can be withdrawn at any time, without notice.

Users are at risk of Google taking advantage of users' content under the following circumstances:

Extracts from the Docs Terms of Service

Index Page at http://www.google.com/google-d-s/intl/en/terms.html, mirrored at http://www.rogerclarke.com/EC/IU-SPE-T-Google-05.html

Base Terms at http://www.google.com/accounts/TOS?hl=en - dated April 16, 2007, mirrored at http://www.rogerclarke.com/EC/IU-SPE-T-Google-06.html

These are partially overridden by http://www.google.com/google-d-s/intl/en/addlterms.html - marked Last updated: September 2010, mirrored at http://www.rogerclarke.com/EC/IU-SPE-T-Google-07.html

Terms of 8 December 2010, mirrored on 14 January 2011

Summary

Key Elements of the Google Docs Terms

From http://www.google.com/accounts/TOS?hl=en

The following is the Term applying to Google services generally:

11.1 By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

From http://www.google.com/google-d-s/intl/en/addlterms.html

That replaces the above text with the following:

11.1 By submitting, [INSERT sharing, uploading,] posting or displaying the Content you give Google a [DELETE perpetual, irrevocable] worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, **share, upload,** post or display on or through the Service for the sole purpose of enabling Google to [REPLACE display, distribute and promote the Services with] provide you with the Service in accordance with the Google Docs Privacy Policy. [DELETE and may be revoked for certain Services as defined in the Additional Terms of those Services].

From http://www.google.com/accounts/TOS?hl=en

19. Changes to the Terms

19.1 Google may make changes to the Universal Terms or Additional Terms from time to time. When these changes are made, Google will make a new copy of the Universal Terms available at http://www.google.com/accounts/TOS?hl=en and any new Additional Terms will be made available to you from within, or through, the affected Services.

19.2 You understand and agree that if you use the Services after the date on which the Universal Terms or Additional Terms have changed, Google will treat your use as acceptance of the updated Universal Terms or Additional Terms.

[That Term is not overridden by 'Additional Terms']


(d) Google Apps

The Terms for Google Apps are extremely complex and unclear.

The Terms for Google Apps could be interpreted as applying to all of Gmail, Groups and Docs and hence rendering the Terms discussed in the previous sections irrelevant for users who subscribe to Google Apps rather than the individual services. If so, then Google has none of the rights in respect of its users' content in the case of Google Apps subscribers that it enjoys in the case of individual subscribers to Gmail, Groups and Docs.

Alternatively, the Terms for Google Apps could be interpreted as being merely a head agreement, which reads in all of the indvidual Terms for individual services, which in return override any conflicting term in the head agreement. If that is the case, then all of the exposures identified in the earlier sections apply to a Google Apps subscriber.

Extracts from the Apps Terms of Service

Terms at http://www.google.com/apps/intl/en/terms/premier_terms.html, with no date and no version number, mirrored at http://www.rogerclarke.com/EC/IU-SPE-T-Google-08.html

http://www.google.com/apps/intl/en/terms/additional_services.html, with no date and no version number, mirrored at http://www.rogerclarke.com/EC/IU-SPE-T-Google-09.html

http://www.google.com/support/a/bin/answer.py?hl=en&answer=181865, with no date and no version number, mirrored at http://www.rogerclarke.com/EC/IU-SPE-T-Google-10.html - and which points to what appear to be 69 separate sets of Terms for various services, which have not been analysed or mirrored

http://www.google.com/apps/intl/en/terms/use_policy.html, with no date and no version number, mirrored at http://www.rogerclarke.com/EC/IU-SPE-T-Google-11.html

http://www.google.com/intl/en/corporate/privacy_principles.html, with no date and no version number, mirrored at http://www.rogerclarke.com/EC/IU-SPE-T-Google-12.html

http://www.google.com/intl/en/privacy/privacy-policy.html, of October 3, 2010, plus 6 archived versions, including difference-markings (for the most recent changes only), mirrored at http://www.rogerclarke.com/EC/IU-SPE-T-Google-13.html

Terms of 13 December 2010, mirrored on 14 January 2011

Google Apps appears not to be a service, but a term for a cluster of services.

At the date on which the analysis was undertaken, it was projected as three separate clusters, for individuals, business and schools.

Google Apps (for "individuals, groups and entrepreneurs")

Google Apps for Business

Google Apps for Education (for universities and schools)

All three bundle home-pages point to the same set of Terms documents.

However, by persisting deeply enough down the Google Apps Education tree of documents, a further set of Terms appears, at http://www.google.com/apps/intl/en/terms/education_terms.html. This is related to, but materially different from, the Terms that are linked to from the three home-pages for the three bundles of Apps, Apps for Business and Apps for Education. It points to the same Additional Terms document as does the base Terms document.

The structure of the set of Terms documents is highly complex. Two different Terms document exist, both of which point to the same Additional Terms document, which points to a web-page which links to 69 further Terms documents for particular services. The key documents all lack a date and lack a version-number. In addition, the page-footers provide a link to 'Program Policies', which points to a page headed 'Acceptable Use Policy' - which are presumably also part of the Terms.

Even more confusingly, it is unclear whether the base services in the package are subject to the Terms applicable to them when they are used singly. Nothing was seen in the Terms for Google Apps that expressly reads them in; but the Terms for Google Apps are not as comprehensive as those for the base services, and read more like a head agreement than a service agreement.

Further, the Terms document uses the expression 'URL Terms' to mean the "Acceptable Use Policy," the "Domain Service Terms," the "SLA," and the "TSS Guidelines."

Yet further, although privacy is not a focus of this analysis, it would be reasonable to expect privacy undertakings to be part of the Terms. The word 'privacy' does not appear anywhere in the base Terms, but does in the Education-specific Terms, and refers to two further documents.

That takes the set of documents that make up the Terms for Google Apps to 6 + 6 + 2 + 69 = 83 documents, at least 14 of which are intrinsic to the bundle, and which every user is at least expected and arguably required to read and assess, and to which every user has arguably consented by registering for and using any Google Apps service.

Because of the unstructured, undated and fluid nature of the Terms, clarity about what the Terms applying to any given user comprised at any given moment in time would appear to require a series of decisions by a relevant court. Put another way, the Terms applicable are not reliable nor even computable, and any analysis is merely a reasonable guess at a point in time.

From http://www.google.com/apps/intl/en/terms/premier_terms.html

1.2 Modifications.
2b. To URL Terms.

Google may make commercially reasonable changes to the URL Terms from time to time.

[Under 15, "URL Terms" means the "Acceptable Use Policy," the "Domain Service Terms," the "SLA," and the "TSS Guidelines". ]

If Google makes a material change to the URL Terms, Google will inform Customer by either sending an email to the Notification Email Address or alerting Customer via the Admin Console. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify Google via the Help Center within thirty days after receiving notice of the change. If Customer notifies Google as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current Services Term for the affected Services. If the affected Services are renewed, they will be renewed under Google's then current URL Terms.

1.4 Ads.

The default setting for the Services is one that does not allow Google to serve Ads. Customer may change this setting in the Admin Console, which constitutes Customer's authorization for Google to serve Ads. If Customer enables the serving of Ads, it may revert to the default setting atany time and Google will cease serving Ads.

6.1 Obligations.

Each party will: (a) protect the other party's Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any Affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its Affiliates, employees and agents in violation of this Section.

6.3 Required Disclosure.

Each party may disclose the other party's Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.

From http://www.google.com/apps/intl/en/terms/additional_services.html

1. Not Subject to your Google Apps Agreement.

The Additional Services are not governed by the Google Apps Agreement, but are governed only by the applicable service-specific Google terms of service. The Additional Services with their respective terms of service are located at the following URL: http://www.google.com/support/a/bin/answer.py?hl=en&answer=181865 (or such other URL that Google may provide).

[None of the 4-6 base-applications under Google Apps is in the list of 'Additional Services']

4. Use Constitutes Acceptance.

Use of any Additional Service by any End User constitutes Customer's acceptance of the Google terms of service for such Additional Service.

17. Modifications.

Google may modify these Additional Terms from time to time.


Author Affiliations

Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professor in the Cyberspace Law & Policy Centre at the University of N.S.W., and a Visiting Professor in the Department of Computer Science at the Australian National University.



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From the site's beginnings in August 1994 until February 2009, the infrastructure was provided by the Australian National University. During that time, the site accumulated close to 30 million hits. It passed 50 million in early 2015.

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Created: 9 December 2010 - Last Amended: 24 December 2010 by Roger Clarke - Site Last Verified: 15 February 2009
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