Privacy practitioners are a creative set of people. I have discovered over time defense of web networks requires a high amount of creative problem solving. I dare say information security can become a highly creative act, where the artisans share technique, trade code and language so they can build a better hedge of protection.

Privacy law and legal analysis depends more on left brain outcomes and brute force determination towards a certain interpretation of law. It's strangely ironic that the corps of coding engineers, considered "geeky" and left-brained tend to produce a creative-maker result. They then must corroborate with presumed right-brained, swordsy legal pens who produce a very analytical result. When you get the two personalities in the same room there is an interesting creative energy to help produce a variety of cool results.

For instance, Ben Nadel, the son of an advertising man, is a coding engineer. Like a lot of web developers, he is probably annoyed at the 'necessary evil' of producing a Terms of Service agreement to move ahead with an online business. So he created a tool that would auto-populate a boilerplate Terms of Service agreement with the name of the business and the State where the business operates to generate a TOS and corresponding HTML code to enter onto a business webpage. The SEO was easy to find online. So he did his job providing a great technical approach!

Now, a Terms of Service legal agreement is a thorny issue for companies who want to protect themselves from crazy, hyper-litigious social predators trying to murder their enterprise. When a business becomes entangled in lawsuits it can be an draining problem that hinders commercial progress for years. Conversely, bad business contracts, like a Terms of Service agreement at Facebook, opens up users to predatory data fleecing, sparing them no invasion if they use their service. In fact, a whole film was produced based on the social impacts of these bad contracts called, Terms & Conditions May Apply.

The truth is a Terms of Service agreement is a lot like any other tool. It depends on how you use it. For instance, you can use a hammer to build a beautiful home or it can be evidence in a crime scene. Whether a tool becomes means for 'good' or 'evil' depends on the concept of use by the person using the tool.

I thought Ben Nadel's tool was genius because it could continue a vibrant discussion on how to produce a really suitable Terms of Service (TOS) or End User License (EULA) Agreement in context of privacy.

So how can frame a comparison of good and bad EULA agreements and compliance conflicts with the law?

The State of California hosts some of the most pro-sumer privacy law in the United States. This has a direct impact on Silicon Valley based companies. California information security laws impact the globe because of they set the production and legal standards for some of the biggest computing multinationals in the world. However, the other, less privacy-conscientious US cousin, western Washington State, produces far reaching computing intellectual property for all platforms, hardware and research. They do not have the galvanized privacy regime that California does, but they are jogging to catch up.

Around September, 2nd, 2015, the State of California passed their version of ECPA, or Cal-ECPA, to promote legal privacy compliance for law enforcement in their State. It protects both companies and consumers from a whole host of information security invasions. Companies like Alphabet (Google) and Palantir will now have to comply with the increased range of privacy law if they want to continue to operate California.

TAKE A 'TERMS OF SERVICE' PRIVACY CHALLENGE!

In the creative spirit of competition, I'm posting this open challenge for legal practitioners to make the most pro-sumer Terms of Service agreement they can without it becoming a choking business killer. The good news is you are going to have to get really creative to marry research knowledge to legal pragmatics. This may in fact impress a lot of people and inspire them to use your ideas to promote a better privacy practice.

As a comment and a discussion starter, I'm going to post Nadel's scripted product, entering in MY NAME and a more challenging State for privacy, Washington State.

You are now invited to make this Terms of Service agreement the best it can possibly be by posting what's wrong or right with this agreement and how it can be better in the comments section below.

Web Site Terms and Conditions of Use

1. Terms

By accessing this web site, you are agreeing to be bound by these web site Terms and Conditions of Use, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these terms, you are prohibited from using or accessing this site. The materials contained in this web site are protected by applicable copyright and trade mark law.

2. Use License

Permission is granted to temporarily download one copy of the materials (information or software) on MY NAME's web site for personal, non-commercial transitory viewing only. This is the grant of a license, not a transfer of title, and under this license you may not:
1. modify or copy the materials;
2. use the materials for any commercial purpose, or for any public display (commercial or non-commercial);
3. attempt to decompile or reverse engineer any software contained on MY NAME's web site;
4. remove any copyright or other proprietary notations from the materials; or
5. transfer the materials to another person or "mirror" the materials on any other server.
This license shall automatically terminate if you violate any of these restrictions and may be terminated by MY NAME at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.

3. Disclaimer

The materials on MY NAME's web site are provided "as is". MY NAME makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, MY NAME does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its Internet web site or otherwise relating to such materials or on any sites linked to this site.

4. Limitations

In no event shall MY NAME or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption,) arising out of the use or inability to use the materials on MY NAME's Internet site, even if MY NAME or a MY NAME authorized representative has been notified orally or in writing of the possibility of such damage. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to you.

5. Revisions and Errata

The materials appearing on MY NAME's web site could include technical, typographical, or photographic errors. MY NAME does not warrant that any of the materials on its web site are accurate, complete, or current. MY NAME may make changes to the materials contained on its web site at any time without notice. MY NAME does not, however, make any commitment to update the materials.

6. Links

MY NAME has not reviewed all of the sites linked to its Internet web site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by MY NAME of the site. Use of any such linked web site is at the user's own risk.

7. Site Terms of Use Modifications

MY NAME may revise these terms of use for its web site at any time without notice. By using this web site you are agreeing to be bound by the then current version of these Terms and Conditions of Use.

8. Governing Law

Any claim relating to MY NAME's web site shall be governed by the laws of the State of Washington State without regard to its conflict of law provisions.

General Terms and Conditions applicable to Use of a Web Site.

Privacy Policy

Your privacy is very important to us. Accordingly, we have developed this Policy in order for you to understand how we collect, use, communicate and disclose and make use of personal information. The following outlines our privacy policy.

Before or at the time of collecting personal information, we will identify the purposes for which information is being collected.
We will collect and use of personal information solely with the objective of fulfilling those purposes specified by us and for other compatible purposes, unless we obtain the consent of the individual concerned or as required by law.
We will only retain personal information as long as necessary for the fulfillment of those purposes.
We will collect personal information by lawful and fair means and, where appropriate, with the knowledge or consent of the individual concerned.
Personal data should be relevant to the purposes for which it is to be used, and, to the extent necessary for those purposes, should be accurate, complete, and up-to-date.
We will protect personal information by reasonable security safeguards against loss or theft, as well as unauthorized access, disclosure, copying, use or modification.
We will make readily available to customers information about our policies and practices relating to the management of personal information.

We are committed to conducting our business in accordance with these principles in order to ensure that the confidentiality of personal information is protected and maintained.

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I am really interested in what you come up with.

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