In this column, Due Diligence, erstwhile attorney and GQ staff writer Jay Willis untangles the messy intersection of law, politics, and culture.
Yesterday, nestled amongst pictures of frolicking dogs and grinning children, former Texas governor and current Secretary of Energy Rick Perry posted a seven-year-old Instagram hoax to his personal account, "strictly forbidding" the company from "using" his photos without his consent. As of Wednesday morning, Perry had quietly taken the post down.
The hoax's premise is that "tomorrow," all of one's data on Instagram "becomes public," thereby entitling the company to "disclose, copy, distribute," or otherwise use one's pictures, messages, or other personal information. It is nearly identical to a hoax that's been rattling around various social media networks for years. In summer 2012, a Facebook version went viral enough to merit a Snopes fact-check, and the company issued a public statement assuring users that it was not true.
Perry is just one of many high-profile figures who participated in this 2019 update to those "Bill Gates will give you money if you forward this" email chains; among many others, Judd Apatow, Waka Flocka Flame, and Usher briefly posted it to their accounts, too. But Perry is the only one charged with overseeing America's arsenal of nuclear weapons, which makes the implications about his naïveté about technology seem a bit more consequential.
For future reference, here are some rules of thumb when evaluating social media posts that purport to assert legal rights against a social media company. First, social media posts are not the way one asserts legal rights against a social media company. Your relationship with Instagram is governed by the company's terms of service, which—let's be honest—you clicked through without a second thought when you signed up for an account in the first place. Here is what those terms of service say.
We do not claim ownership of your content that you post on or through the Service. Instead, when you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our Service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings).
In other words, by using Instagram, you already gave Instagram a broad license allowing it to use the content you post. As the terms of service are careful to note, "you can end this license anytime by deleting your content or account." Similarly, Instagram's Data Policy makes clear that it already collects information about, among other things, when you "create or share content" and "message or communicate with others." You can delete some of this information—your search history, for example—using your account's privacy settings. Otherwise, the company is already cataloging it.
If Instagram were to change its terms of service, as it does from time to time, it would require you to again consent to an updated version. But Instagram could not, as this hoax suggests, unilaterally impose a default rule granting it ownership of your photos. And it would certainly not require users to take the affirmative step of seeing, reading, and re-posting a particular block of text in order to withhold said consent.
The legal citations are nonsensical. "UCC 1-301" refers to the Uniform Commercial Code, a model set of statutes written by law professors in an effort to streamline the state laws governing commercial transactions. (Most state legislatures have adopted some or all of the UCC since it was first published in 1952.) Section 1-308 reaffirms the common-sense idea that parties who reserve their legal rights do not implicitly give up their legal rights just by taking part in a business transaction. For example, if you're a homebuilder who receives a faulty concrete shipment, you can accept the shipment while reserving your right to sue the supplier if the concrete cracks later. But Instagram users are bound by terms of service to which they already agreed; it's too late to assert a reservation now. And again, there are no rights to reserve here, since Instagram isn't doing anything new in the first place.
The "Rome Statute," meanwhile, is a 1998 treaty that created an international criminal court capable of prosecuting, among other things, genocide. It has absolutely no relevance to one's Instagram usage, now or ever. Invoking it here is the equivalent of quoting the Magna Carta when a flight attendant asks you to return your tray table to its upright and locked position.
Among the many, many other aspects of this hoax that are clues that it is not a legally binding document: A deadline of "today" is no deadline at all. (Which day? By when? In which time zone?) "Court cases" and "litigation" sound scary, but there's no articulated reason why Instagram might want to to sue you. It cites no source other than "Channel 13 News." It says all photos will "become public" even though Instagram's privacy settings allow users to restrict photos to approved followers. The text is riddled with grammatical errors. "Deadline" is randomly capitalized, and there are three exclamation points after "today." There are no "status updates" in Instagram. Facebook, which owns Instagram, is a publicly-traded company, but Instagram's alleged status as a "public entity" is legal gobbledegook. The word "Instagram" appears in bold type throughout, and at one point in a larger-size font. The entire screed ends with SCARE CAPS, and without punctuation.
Like many hoaxes, something about this feels real enough for users to decide that it is better to be safe and post than to be sorry and accidentally give away your entire DM history. Scandals like Cambridge Analytica have contributed to a well-founded skepticism about how carefully tech giants store, use, and share personal information. Just last week, Facebook had to announce that it would stop hiring contractors to transcribe surreptitious audio recordings of users' conversations, raising the obvious question of why, exactly Facebook was doing so in the first place. Put differently, there is no shortage of causes for concern about privacy on social media these days. An alleged Instagram stealth takeover of all your photos, however, is not among them.
Exchanging handles instead of phone numbers is low-stakes, noncommittal bullshit.
Originally Appeared on GQ