Another FUD-bomb has been thrown into the web 2.0 mix, this time based on indemnity. According to this report, the state of Colorado is recommending all agencies, including Higher Ed, cease their use of Facebook immediately. The reason is an indemnity clause in Facebook's terms of service. Specifically, it says that if someone sues Facebook as a result of your actions, you will compensate Facebook for any loss. But, according to the article, the Colorado state constitution prohibits any such clause, because only the state controller can approve any 'contract'. Well. At first this sounds reasonable. But if you apply the logic more broadly it means that state agencies would have to cease using pretty much every piece of software, hardware, appliances and utensils until the state had negotiated their indemnity clause with them. From where I sit, you can't interpret terms of service as contracts (oh yes, I know you would like to, but you can't). Because you can't simply waive by fiat any liability or responsibility. Terms of Service can at best be an opening position in a court action. But they don't overrule common law, statute, rights and state constitutions.
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