More on TOS: Maybe Documenting Intent Is Not So Smart

In my last post, I wrote that “Reviewers should reject research done by violating Terms of Service (TOS), unless the paper contains a clear ethical justification for why the importance of the work justifies breaking the law.”  My friend Mako Hill (University of Washington) pointed out to me (quite sensibly) that that would get people in more trouble–it  asks people to document their intent to break the TOS.  He’s right.  If we believe that under some circumstances breaking TOS is ethical, then requiring researchers to document their intent is not strategic.

This leaves us in an untenable situation.  We can’t engage in a formal review of whether something breaking TOS is justified, because that would make potential legal problems worse. Of course we can encourage individuals to be mindful and not break TOS without good reason. But is that good enough?

Sometimes TOS prohibit research for good reason. For example, YikYak is trying to abide by user’s expectations of ephemerality and privacy. People participate in online activity with a reasonable expectation that the TOS are rules that will be followed, and they can rely on that in deciding what they choose to share. Is it fair to me if my content suddenly shows up in your research study, when it’s clearly prohibited by the TOS?  Do we really trust individual researchers to decide when breaking TOS is justified with no outside review?  When I have a tricky research protocol, I want review. Just letting each researcher decide for themselves makes no sense. The situation is a mess.

Legal change is the real remedy here–such as passing Aaron’s Law, and also possibly an exemption from TOS for researchers (in cases where user rights are scrupulously protected).

Do you have a better solution?  I hope so. Leave me a comment!