Does Facebook’s User Agreement “Suck”?

Behold the following video clip of U.S. Senator John Neely Kennedy giving Mark Zuckerberg of Facebook a piece of his mind:

https://www.youtube.com/watch?v=bBevsgSn65A

More specifically, he says, “Your user agreement sucks. … I’m going to suggest to you that you go back home and rewrite it. And tell your $1,200-an-hour lawyers—no disrespect, they’re good—but tell them you want it written in English, in non-Swahili, so the average American can understand it. That would be a start.”

Because I’m usually the guy who says a given contract, uh, sucks, following a tip from Dan Deacon I took Senator Kennedy’s remarks as an invitation to have a look at Facebook’s terms of service.

One thing quickly became clear: Facebook’s terms of service aren’t terrible. They’re not gibberish, except for isolated bits. The issues Facebook faces go waaaaaay beyond how clearly Facebook’s terms of of service say what they say and instead relate to how Facebook does business. That’s above my pay grade.

But since I’m here, I offer you two extracts marked to show changes. There’s room for improvement: apparently Facebook wasn’t interested in creating terms of service of the highest quality. Here’s section 9, chosen at random (I eliminated the enumeration within the section):

And here’s the section on dispute resolution:

Such provisions are invariably unnecessarily legalistic, and that’s the case here. For one thing, COOL IT WITH THE ALL CAPITALS! And I highlighted in yellow those parts that are particularly misconceived. Go here, here, and here for related blog posts. (The most up-to-date analysis of the first and third of these issues is in the fourth edition of A Manual of Style for Contract Drafting

I quickly threw this together. I expect that were I to take a more leisurely look, I’d do things a little differently. And hey, if anyone does want me to take a more leisurely look at this sort of thing, I charge a flat fee, not $1,200 an hour …

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.