Keith Devens .com

I didn't actually read the TOS myself, but a few commenters on Slashdot noted that it specifically refers to posts, which they felt likely referred to posts made on their messageboards.

You may not use AIM while driving, operating hazardous equipment, or engaging in other forms of hazardous activities.

Wonder how they enforce that.

Isn't there an IM client that encrypts communication?

There may be, but both sides would have to be using the software, so that doesn't really change the equation much. May as well just use a different service.

Trillian allows encrypted communication that doesn't go through their network if you enable it. If both sides have it enabled, you're good to go.

To correct some misimpressions, the rumors flying around the blogosphere about the AIM Terms of Service are totally false.

AOL does not monitor, read or review any user-to-user communication through the AIM network, except in response to a valid legal process. The AIM privacy policy (which is part of the AIM TOS) makes that crystal clear:

"AOL does not read your private online communications when you use any of the communication tools offered as AIM Products. If, however, you use these tools to disclose information about yourself publicly (for example, in chat rooms or online message boards made available by AIM), other online users may obtain access to any information you provide."

The second sentence of that same paragraph -- and the related section of the AIM Terms of Service -- is apparently causing the confusion. The related section of the Terms of Service is called "Content You Post" and, as such, logically and legally it relates only to content a user posts in a public area of the service.

If a user posts content in a public area of the service, like a chat room, message board, or other public forum, that information may be used by AOL for other purposes. One example of this might be a user who posts a "Rate a Buddy" photo and thus allows AIM to post it for other AIM users to vote on it. Another might be AOL taking an excerpt from a message board posting on a current news issue and highlighting it in a different area of the service.

Such language is standard in almost all similar user agreements, including those from Microsoft (appended below) and most online news publications. That clause simply lets the user know that content they post in a public area can be seen by other users and can be used by the owner of the site for other purposes.

Finally, there seems to be a misimpression that the change was recently made. In fact, the current AIM Terms of Service was last updated in February 2004 and has been in place for more than a year. The prior terms of service had very similar language reserving the same rights.

In short, AIM user-to-user communication has been and will remain private, the AIM TOS was not changed, and the TOS includes a standard clause on publicly posted material.

Andrew Weinstein
Spokesman, America Online

MSN TOS:

6. MATERIALS YOU POST OR PROVIDE; COMMUNICATIONS MONITORING

For materials you post or otherwise provide to Microsoft related to the MSN Web Sites (a "Submission"), you grant Microsoft permission to (1) use, copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, translate and reformat your Submission, each in connection with the MSN Web Sites, and (2) sublicense these rights, to the maximum extent permitted by applicable law. Microsoft will not pay you for your Submission. Microsoft may remove your Submission at any time. For each Submission, you represent that you have all rights necessary for you to make the grants in this section.

there seems to be a misimpression that the change was recently made. In fact, the current AIM Terms of Service was last updated in February 2004 and has been in place for more than a year. The prior terms of service had very similar language reserving the same rights.

You're definitely right about that. I got the impression from the /. post that the change was recent, and only noticed when I read Greg Yardley's post just now (since that's where you came from) that the change was old. I'd noticed that the TOS said Feb 5, but since /. claimed the TOS were "new" I assumed it must have been Feb 5 of this year. Yet more reason to disrespect /.

The second sentence of that same paragraph -- and the related section of the AIM Terms of Service -- is apparently causing the confusion.

The second sentence of that paragraph isn't confusing at all. It says if you make information about yourself public, other people will have access to it. That's obvious. No big deal.

The related section of the Terms of Service is called "Content You Post" and, as such, logically and legally it relates only to content a user posts in a public area of the service.

It isn't clear that "content you post" only refers to content you post publicly on, for instance, a message board. That's why I quoted one portion of the TOS that lumps chats together with message board posting under "content you post", and chat along with message boards under "AIM Products":

You are responsible for any materials you post or make available on or through the AIM Products, including message board posts, chat participation and homepages.

When the critical portion of the TOS refers to "Content that you post to any AIM Product", there is every reason to believe that chat is lumped in with that given the language elsewhere in the TOS. At the very least it's certainly not clear that chat is not lumped in with that, and that "logically and legally it relates only to content a user posts in a public area of the service". In addition, given the statement that "you waive any right to privacy" with regard to "Content" you post on any "AIM Product", whatever the privacy policy says about it is expressly irrelevant.

In comparison, the MSN TOS clause is very clear that it's only applicable to "MSN Web Sites":

For materials you post or otherwise provide to Microsoft related to the MSN Web Sites

Of course, that may include things like Hotmail as well, so that's a separate concern, but I don't use any MSN products anyway.

In short, AIM user-to-user communication has been and will remain private, the AIM TOS was not changed, and the TOS includes a standard clause on publicly posted material.

Andrew Weinstein
Spokesman, America Online

Andrew, I give you credit for reacting to this and reaching out to the community. I'd recommend that you clarify the TOS to make it clear that we "waive any right to privacy" only with regards to content posted to public areas of AOL's products.