Data Property in a Platform World

Today, before you all, and God herself, I confess, I am not a faithful reader of the terms and conditions of service. And I admit, I've agreed to terms and conditions without reading the extensive legal document. But who does?! Yet, every now and then, out of curiosity, guilt, and lawyerly duty, I'll read the lengthy, smallest-type document.

One of these moments was when I was agreeing to the terms of service of the popular social media app, Snapchat. I had an account on the app for some time already but had to agree to the updated terms of service, which every app does, every now and then. I had deleted my Facebook and Instagram accounts but was still faithful to Snap. I loved how easy it was to create my in-the-moment content and share it with my friends and sometimes the wider public. I also liked that it saved my photos and videos to the app itself. To me, scrolling through my years of Memories was way better than scrolling through a feed of repetitive posts. My own memories made me laugh—I'm the funniest person I know—and at the same time, I got to take a scroll down memory lane. The feeling of missing out (FOMO) was never there, unlike when I saw posts on Instagram of my friends at my favorite karaoke bar without me. Instead, I only felt bittersweet nostalgia of the past. Then in a brief moment, I wondered, if Snap was walking down memory lane with me. Turns out it, it was doing more than that, and I had agreed to let them.

When agreeing to any terms and conditions of service, you are signing a legally binding contract. It seems unfair though, since the big app company is the one with the power of what to put in the contract, and we, the users, only have the power to agree or not to agree. There’s no opportunity for negotiation. As the Snap Inc. terms of service state, “if you don’t agree with the Terms, then don’t use the Services.” Seems a little user unfriendly, doesn’t it?

To my shocking surprise, the terms of service of Snap Inc. informed me that although I maintain ownership over the photos and videos I’ve sent and saved, by signing the terms of service, Snap Inc. has license to all the content I’ve created through the app. This means, “you grant Snap and our affiliates a worldwide, royalty-free, sublicensable, and transferable license to host, store, cache, use, display, reproduce, modify, adapt, edit, publish, analyze, transmit, and distribute that content, including the name, image, likeness, or voice of anyone featured in it.” Even more shocking, under the license, Snap has a right to make our content available to and pass their rights along to other service providers! They claim doing so is for the purpose of “providing and improving their Services”. To me, it seems like a complete invasion of privacy. My life for the past seven years is stored on a Snap database and Snap has the right to use my personal data seemingly however they please.

I've recently deleted the app, and deactivated my account for various reasons including the distraction it was causing me as I doom scrolled for hours through silly sometimes entertaining videos. But also because the thought of a social media company holding on to all my photos and videos, some private and personal, and them having the right to do a number of things with my content, peeved me out. It begs the question, how much say do I have when I voluntarily sign the terms of service? I seemingly have no other choice, except not using the service at all. What laws can we turn to, to protect our personal data? You may be surprised.

When looking for a possible legal protection for my content, with the help of my property law professor, I stumbled across bailments. Ordinarily, bailments are an arrangement where the owner of personal property entrusts the property to another. For example, a car park valet. The owner of the car is the “bailor,” and the valet is the “bailee”; think of it as a fancy babysitter. I allow you to hold my property with the expectation that you return my property in the same condition I lent it to you. This might work in our Snap case here, but under bailment, I, the bailor, get to tell you what you can and cannot do with my property. In the parking valet example, I give you the right to drive my car to the parking lot, but I do not give you the right to go for a joy ride in my brand-new cherry-red Camaro. There is an expectation that the agreement between the bailor and bailee has limits. But what happens when the bailor/bailee relationship isn’t so crystal clear? Snap is letting me use their app because I agreed to their terms of service. I create content and maintain ownership of that content, but Snap can remake, publish, and distribute my content. Maybe there is more to it than what is on the surface. Let’s take a look at helpful precedent.

In the 1984 case Allen v. Hyatt Regency-Nashville Hotel, Mr. Allen parked his brand new 1981 vehicle in a parking garage, but at the end of the day when he went to get into his car, it was nowhere to be seen. Parking in a garage is a mundane process we are all familiar with. Before you drive into the garage, you click the button to get an automatically dispensed ticket, the barrier arm goes up, and you drive into the cool and protected shade of the garage. I always feel like my car is a little safer in a parking garage, out of the heat and the chaos of a busy street, and so did Mr. Allen. With a brand-new car paying a little extra to park at a hotel owned garage seems worth it, and I think anyone of us would have the expectation that our car would be right where we left it! But, Mr. Allen parked the car himself, it wasn’t a valet situation like we talked about earlier. In fact, it wasn’t even like the situation in the movie, Ferris Bueller’s Day Off where two parking garage employees drove off with Cameron’s (Bueller’s best friend) dad’s vintage Ferrari racking up milage. Mr. Allen didn’t hand over his keys to a parking garage employee at any point. However, Mr. Allen claims a bailment was created when he pressed the button to receive a ticket, and parked his car in the garage with the expectation that it would be in the same spot where he parked it that morning.

The majority of the court agreed with Mr. Allen finding that a bailment was created between him and the parking garage, owned by the Hyatt-Regency Nashville Hotel. The court found a duty of reasonable care existed when Mr. Allen pressed the button, received the ticket, and parked his car in the hotel’s garage. There is a disagreement in the court, though, about whether this was truly a bailment between Mr. Allen and the hotel parking garage.

An essential element of a bailment is delivery of property from bailor to bailee. Because Mr. Allen parked the car himself and kept his keys, the dissent argues a bailment was never made. Therefore, Mr. Allen’s situation seems more like the case of Rhodes v. Pioneer Parking Lot, Inc., where a bailment was not found to exist when the car owner used street meter parking. However, the majority argues Rhodes is different from Mr. Allen’s situation because he paid to park his car in an enclosed, indoor garage with a parking attendant and security personnel to keep the cars safe from the possibility of theft or break-ins. According to the majority, “the ‘realities’ of the relationship between the parties gave rise to a duty of reasonable care on the part of operators of parking garages and parking lots,” a duty explained by the presence of a bailment relationship. The realities of the relationship can be seen through the parking fees which are used to hire parking attendants and security personnel to protect the cars. Thus, a bailment by hire is created in such a situation where the realities of the relationship show employees have the duty of reasonable care to keep a watchful eye on the property.

Does this sound familiar? Let’s say I’m Mr. Allen and Snap is the parking garage. The parking ticket permitting Mr. Allen to park is like the terms of service we all must agree to in order to use Snap services—the Snapchat app. The parking ticket states the garage has no responsibility for what happens to a car when it is in the garage, and Snap says they can do what they want with the content I create on their app. It’s not quite an exact parallel, but you get the gist. It seems like Mr. Allen and Snap users, such as myself, get the short end of the stick. He gets to park his car, we get to use the social media platform, but the parking garage has no responsibility to the owners while still making money, and Snap gets tons of content which they can then reuse without any compensation to us, the creators. Where is the fairness in that?

Now my situation doesn’t involve a parking garage, but maybe a duty of reasonable care from Snap is what I should expect when I use their services, similar to the expectation Mr. Allen had when he parked his car in the hotel garage. The realities of the relationship show I’ve agreed to their terms of service and therefore allowed them a license to my content. Yet, they have a duty of reasonable care to use my content in a way that is not offensive to me, and in a way that will benefit me, the user. Maybe that means using a happy picture to advertise how great their app is for capturing a positive moment. Or maybe, use one of my funny videos to remind us all to take a moment to be present and enjoy good times. Maybe even just to remind us to stay in touch with our friends and take a walk down memory lane together. Those are reasons for using my content which I can get behind. Maybe the Snap ghost isn’t so scary after all. Maybe he’s just a silly little guy wanting to take part in our real-life fun.

Clara Castor is a law student at the American University Washington College of Law.

Image: Ibrahim.ID, Social media collection 2020s.