Podcast

ethan

Welcome to the social media law cast I'm your host Ethan Wall world traveling social media lawyer along with my friend and co-host Sean Depasquali. Sean what are we talking about today.

Shawn

Hello. Well Ethan we are and so formal Ethan we're here today to discuss the matter of Zoom. Are you familiar with Zoom. Yeah, so everybody loves zoom.

ethan

Ah, look it.

ethan

I have used it once or a thousand times.

Shawn

Everyone's on Zoom hospitals are using it. Doctor's offices. Ah hollywood is using it for writers rooms. Everybody's using Zoom right? We're all having intimate conversations, business conversations, confidential lawyer conversations. Ah and then earlier in the week Zoom updates their terms of service. To say? Oh we're now allowing ai training on customer data. This is I'll give you the full story. Okay, everyone goes ah no like people freak out. Ah, because they're like we got private conversations facial recognition like this is this is crazy. People are canceling their Zoom accounts. Um, people are upset. There's no transparency of what's going on there these these are just like in the updated terms. There's no like big like you know. Horn tut of like hey we're changing their terms and some new stuff's going to happen. Ah everyone everyone. Everyone goes goes crazy. Um, you know and and and other questions how what is the scope of data usage. You know what is the security of this data that they're a million things. Okay. So they say okay in the terms of service that the updated ones right? they say that ah that service generated data meaning like um information about.

Shawn

Like which features user use or like your geographic location or how long a meeting went right? All of these things are already being done with Ai is basically what Zoom says and that the. Customer content the stuff that like people are doing audio recordings video content chat transcripts like any of that stuff that is the customers unless they decide to consent and opt in so this is the company makes a clarification now to say oh. Hold on nobody freak out. We're not going to do anything unless you opt in to do this and it's going to be a very clear mechanism that shows you that you're opting in and please don't be mad at us and you know they're also the you know. We're really sorry and we're going to you know, ah kind of rejust some of the language in the terms of service to be a little more clear that you have to opt in and presumably everybody has now panic has subsided but it brought up a lot of interesting. Questions and ah I decided to ask them to you in a public forum because you have a podcast a long dormant podcast that I think we could make better by. Ah.

ethan

Ah.

Shawn

Plumbing the depths of your legal knowledge for your take on interesting things. So.

ethan

Yeah, we're climbing down to the cliffs of morea and we are bringing this podcast back up from the depth along with ah Gandalf's body yeah

Shawn

Um, yeah, yeah, yeah, and it is rough looking. Ah.

ethan

Ah, the podcasts are organd both.

Shawn

Both um, okay, so let's start with big picture right? and then and then what I want to do is I would like to then talk about the legal ah side of things right? purely legal. What. What laws could they have potentially broken what lines could they have crossed legally what kind of trouble are they are they not in what all the legal stuff and then I want to talk about the moral implications of all this so big picture. Pretty bad at first right to kind of just Trojan horse this into your newly updated terms and not really make a big to do about hey there's some shit you should read? What do you think.

ethan

Yeah I mean look from a legal perspective every website app technology platform that you're going to use is going to have legal terms and conditions. That's the fine print plugged in on the bottom of any website or app that guess what? no one reads but me and other lawyers.

Shawn

Ah.

ethan

Why because we just want to go ahead and use the service and Zoom has become ubiquitous with every single household in the world that has internet connection since the pandemic and we just use it as a chat platform and so. We don't read the terms and conditions. But these things are essentially a binding legal contract between Zoom and people who use their platform and sometime apparently a couple months ago Zoom updated their terms then a few months later sent a notice saying hey we updated our terms including a b and c but. Did not mention that elsewhere in the terms was this update about collecting user data in order to train their Ai models and that's what's gotten people really pissed off. It's not that I think Zoom is collecting certain types of data and using it because. Let's face it literally all websites and app. Do it I downloaded a level to hang this picture behind me and it's free, but you know what it does it collects a bunch of data from me and how I use a darn thing and great I get to use a level. It's fine I think the problem here is that Zoom seemed to hide this bombshell and in it. A day and age where people are scared of Ai. They're scared of robots. They're scared of what it's doing to collect their data people feel violated and Zoom was not super forthcoming when they were doing it.

Shawn

It's true I would just like to go on record though as I am not scared of robots I welcome our robot overlords and I fully believe that they will do a much better measured. Fair job of ruling our planet than our human overlords have so if robots are listening to this or some ai intelligence is scraping this off of the internet I just wanted out there that me Seandi Pisquali loves you? Thank you.

ethan

Yes, like you love robots. But 1 thing you don't love is Ai especially as a writer out in hollywood and how Ai has the ability to source content and use it without your permission and other people are not liking Ai in a way for these particular reasons of.

Shawn

I Think we need to define though for for just a quick second ai what we're talking about here right? is machine learning artificial intelligence right? So it's it is it is um, not.

ethan

Yeah.

Shawn

Ai like skynet right? from terminator. It is it needs to be trained on a data set that data set in this case for Zoom's purposes is whoever opts into this thing right? It is then trained on that data set. Um.

Shawn

I think the problem that hollywood has for example with it is the way in which these companies are acquiring these data these massive data sets right? The the ah creatives who are. Now unwillingly training this learning algorithm. Ah aren't being compensated and now they're looking at it as oh. Okay, so something I wrote is now going into like some artificial slurry and being spit back out for somebody else. But those words wouldn't exist. In those orders without all of our contributions. So I think that that specific type of Ai this this. What we're currently dealing with is. I think it's important to identify it as what it is and separate it from all forms of Ai or artificial intelligence because there's a lot of stuff that works that's already out there that we interact with every day that a computer just does Google searches for example are done and by an artificial intelligence an algorithm. That is sorting things and figuring out what you want. So um, sorry so I just wanted to clarify because I think it's an important distinction when we're talking about this and and if we are not talking about an Ai that needs to learn off of stuff that already exists.

Shawn

Right? Then then it's a different scenario right.

ethan

Yeah, I'm not saying that the ai situation with Zoom is analogous. What's happened with the writers. What I'm saying is the words Ai now are triggering fear in people and this is a specific situation where that's happening. The reason I say that is because every single freaking website or app. Out there collects data either actively or passively and it uses it for certain business or operational reasons every app has what's called a privacy policy. You need to have a privacy policy in order to comply with federal laws and to have your app uploaded to the Google or Apple app store.

Shawn

Um, within.

ethan

And in that privacy policy. It tells you what information does the app collect. How does it use that information and how can people potentially opt out of having their information being used if they want to go ahead and use the app and so from the dawn of apps apps are collecting information from people and using it for business. Marketing and operational purposes and we seem to be okay with that in this situation I'm just saying tempers have seemed to flare not because Zoom is collecting this information and using it for its own internal operational administrative tools. But because it's connected to an ai feature and I think ai. Is kind of both a really cool tool but also one that is bringing people's radars off of of oh no, you're using it to train models and computers without my particular permission where I think people have been fine with people with apps taking their data and using it for other reasons. Um for for many.

Shawn

Well, yeah I mean I think advertising as like probably the largest example, right? Most websites are taking your data and using it for advertising purposes most everyone is taking your data and using it for advertising purposes. At this point right. And I think yes as a society we have sort of opted into the idea that like in exchange for what?? What's the phrase. Um, if you are not paying for the Product. You are the product right? because if it's free then someone's got to pay for it and guess what you are. Now, you're not consuming anymore you are being consumed. Um, So yeah, you know I think you're right people do um, consent to a certain amount of data being taken um on a certain level too because we also have to be clear.

Shawn

Learning my demographic age my gender my name you know these what websites I visit is very different from listening in on my entire conversation and watching my entire video and learning. Everything about my Mannerisms face facial features the way I speak the way I talk ah the way I move terrifying? Yeah yeah.

ethan

Yeah I would say 2 things right one that would be terrifying too. It's not what's happening here. But I think it was the fear of what um think was the fear of what people had and I think it was due to Zoom not being transparent. In what information they're collecting how they're collecting it and making that known to people to me this feels like very similar to the Cambridge analytica Facebook conundrum that occurred during the election if you recall there was an app called Cambridge analytica that was doing. Online surveys and telling people they were using it for research purposes. But really it was a tool that was purchased by I believe a republican candidate republican national committee some consulting company. It was working with a political company which is basically using this data to help craft messaging.

Shawn

Yeah.

ethan

For political parties and so it wasn't the fact that people clicked the data it was whoa I thought this thing did 1 thing and you lied you're using it for another and I think here this isn't a situation of Zoom lying. This is the situation of Zoom making an update to an app that was buried deep within the terms and conditions of the app that didn't.

Shawn

Correct.

ethan

Transparently and properly explained to people what this app was going to be doing and as a result of it people got afraid of the fear of Ai and say you're listening to everything I'm doing. You're taking my hipaa data you're taking attorney client privilege information. You're taking my. Look and feel and how my mannerisms are and you're going to use that to train robots when really what I think the situation was is zoom said look we're trying out a new ai feature if you opt into this ai feature. You agree, you have to agree to.

Shawn

Um.

ethan

Allow us to collect certain data and we're going to use that data to help to create things like meeting summaries transcripts. You know, helping to create the gist of your meeting and kind of spit it back to you to have these helpful and useful notes this I think could all have been avoided if zoom said hey we're updating our terms and conditions and as part of it. We're going to use certain data if you expressly opt in to help train our Ai models which will help you by doing the following you know, creating meetings, summaries, etc to be clear. We're not listening to your conversations. Actively, we're not collecting any of your video or audio this is is not being done. You don't have to accept this tool by default but they didn't do that instead. It came out in the news that someone saw the update on the terms and conditions dug in and said whoa. What is that hiding down there. What is Zoom doing there an evil enterprise and all of our data is going to be stolen. We're going to leave Zoom and it it resulted in this big reputational risk that Zoom had to come out and say well whoa whoa hey sorry it's not what we're doing. So are this being misconstrued. We're going to go ahead and fix it but they had to be reactive rather than proactive and as you said a lot of damage has been done to Zoom's reputation as a result of it and it might be something that's repairable or irreparable time will tell but could have been clearly avoided by.

ethan

Being more transparent when they updated their terms with service.

Shawn

So do you think that? um the opt in of it all solves the problem entirely.

ethan

It depends it depends upon operationally how it's done so I use a different old than Zoom like I use Zoom when people send me a Zoom link but I have another service. It's called dialpad it's like a Zoom competitor I've been using them for years and they're dope. No this isn't a sponsored post. But yes and bought lots of money. But um.

Shawn

Um, right? sure.

Shawn

No, but if they want to.

ethan

Just I like the tool. It's easy to use and in knowing that we were going to discuss this today I was like wait am I having data collected through my Ai tools on my different platform and I saw hey there's an ai tool I looked in the privacy policy and it says if you use the ai tool then you can collect. We're going to collect certain information to help us train the tool. Similar to what's going on with Zoom and so for me as a consumer and also a lawyer I think that I want both I want 2 things to happen. They're both the same I want there to be transparency and that if I turn this tool on. And I have to agree to the terms I want it to be clear about what it is that you're doing and so I think that it's 1 thing if Zoom changed their terms of service and just started collecting this data from people without having people actively accept. That feature and the result and consequences of what it was going to be to use that feature such as training their ai tool and it's a different thing. Um, if you have to manually go ahead and accept it which my understanding of reading through the situation is that's what it is but.

Shawn

I mean it is I think there are you know? Okay, if you're my boss and you decide to hold a meeting and you opt in to using these ai tools right now I need to be at that meeting. But I don't want my data collected and I don't want to be part of any call that's already been opted in so where does that put me and if now my data is collected because I attended this meeting where does that put Zoom. Later on if I decide hey I didn't consent to that like I had to be at this meeting for work.

ethan

Yes, that's actually a real shitty situation for you because at least in my understanding as of recording the podcast today the opt in for shared meetings is done by the administrator. Only.

Shawn

Um, right.

ethan

The administrator chooses whether to opt in or opt out and the and the participants thenself on the call. Don't have the ability to accept or or modify that so I think that that's a really poor model of how this is going to work. Depending upon how it's executed. So let me let me talk to you about dialpad service that I use and again this isn't a war between dialpad and Zoom I don't care but I can record my meetings in dialpad I can record the audio and it can spit out an Ai generated transcript which is great because I use another tool called Rev who's awesome.

Shawn

Look okay. Chair.

ethan

I send my videos to them for a dollar a minute they transcribe it this could potentially save me some money and but when I go to record a meeting I press a button and this robot lady says this meeting is recorded and so it puts everybody on notice so that if someone objects to it. They could say well wait a minute hold on what's going on here.

Shawn

Guess.

ethan

It would be certainly a poor practice on my behalf to just hit the button without letting people know if I'm going to be recording something I'm going to say hey do you mind if I record this meeting I say that one because it's polite but 2 there are federal laws that prohibit me from recording other people's communications without their notice, especially if it's going to be.

Shawn

Um.

ethan

Something that is perceived to be a private conversation and so like this one um and still yeah ah so I think the tool does that it tells you this is being recorded because it's required to under the law and so I don't know sitting here today. How Zoom's

Shawn

Right? like this 1 right? Totally private. Awesome.

Shawn

But.

ethan

Tool Works does it notify everybody hey you're being recorded and this is being used for ai purposes or not but that could certainly be a concern if that is not happening and I can see the situation that you're talking about or unwilling participants in the meeting.

Shawn

Are.

ethan

Don't know that they're being recorded and that their information is being used in some way even if they accepted Zoom's termed and conditions by downloading the platform and joining the meeting.

Shawn

Yeah, or literally in a situation where they're like well I I have to attend this meeting or I'm going to lose my job and the boss and Zoom have let me know that this meeting is using ai and my ai is my you know data is going to be collected. Ah, but I don't want that so now. What do I do you know.

ethan

Yeah I mean that's a personal practical situation. A little bit in a way. It's certainly one we get this all the time between like what's what's right? legally and what's like unfair for people and sometimes that's a different question between legality and Morality. You know from ah from a legal perspective. Um, if.

Shawn

Yeah, does a person have a right to opt out of this eve from a even in a request of a meeting for example, like for example, like your recording example.

ethan

I mean yeah, you're asking me a question I don't know the answer to so we could delve into that if you want but what I was going to say is that from ah from a legal perspective. Um Zoom has the ability to have this tool if it's written in their terms and conditions. Once they made an uptic to the terms and conditions. They should have clearly conspicuously disclosed what the material updates were fixing a typo iss not material collecting data for ai machine learning is pretty material so should have let people know about these things and that's all Zoom users right.

Shawn

Um.

ethan

Because you're going to receive that email from Zoom saying hey we updated our terms of service and continued use of our app means acceptance of these new terms and if people didn't click on it like that employee in that particular circumstance. Kind of it's on the employee but really what it sounds like Zoom didn't do and they should have done is when they made that email update saying here's the summary of the major changes to the rules and here are here's our privacy policy with any opt out procedures. Ah, because it sounds like there are procedures for people to be able to opt out of this. But again it certainly wasn't made clear at the time that this was done and that's why this is creating a big reputational moral dilemma to people.

Shawn

Yeah I mean I think that sums it up pretty nicely. Um, is there anything else you want to add? do you think it? yeah.

ethan

Well yeah I mean really the the purpose of this again. It's not a shit on Zoom although I don't think that they made all the right moves here and they're having to kind of backtrack and deal with it. What does this mean for you. It means if you're a business.

Shawn

Yeah, yeah.

ethan

If you are a website if you are an app we use these situations as learning lessons for the future. So what should you learn a if you have a website or an app you have to have terms and conditions and you have to have a privacy policy. These things are not just legal fine print on the bottom. They're very important. They're the contract between you and other users and they are the terms to comply with various federal privacy laws. So you have to have terms and conditions that accurately disclose these types of things and 2 if you update your terms and conditions. You need to let people know that you updated them and it's certainly a good breast practice to summarize what those key updates are or else you might find yourself in a situation like this one where it feels like your privacy rights have been zoomed right? off of you I do ha.

Shawn

Ah.

ethan

And you're caught like in a situation of a surprise and now you're going to lose Subscribers. You're going to lose Business. You're going to have negative publicity and you're going to have to distract yourself from doing whatever it is that you're doing in business to apologize and make changes and backtrack and we say in the law once the Bell is wrong. It can't be unrung meaning there are vibrations from this. That are going to create consequences that certainly could have been avoided through transparency so just learn from this lesson and use it in the future.

Shawn

Ethan Ethan if I wanted terms and conditions for my website for my business who would I turn to.

ethan

Yes, Ah, certainly the purpose of this podcast. But yes at the social media law for me draft terms and conditions for website to app all the time. Yes, like you know.

Shawn

Oh what? that's crazy I listen in that's not I don't even work for the social media law firm I am just a client. No wait. What is it I'm I'm not not only am my client I also own the company.

ethan

Not only do we read them. We write them. But that's.

ethan

Um, you.

Shawn

And anyway it doesn't matter the point is ah yes, this is a thing that whether you go to Ethan's law firm or a law firm that specializes in this it is important to Ethan's point to probably probably important I would say to have a lawyer look at your terms and conditions because. I've had friends that have made websites that copy pasted terms and conditions from other websites into theirs and like you know, fine. But I think if you're like serious and about protecting you know your your business and your website like you probably got to do it right? Yes, yeah.

ethan

Yeah,, that's like yes because it's a few reasons you copy somebody else. It's copyright Infringement. You're probably not going to get sued for that. But what's what's really the problem is if there is a problem down the line and you try to enforce your contract and it doesn't have terms to protect. You. Your S O L And that's really the issue. It's like an insurance policy. Sometimes we get really low cost car insurance because we don't want to pay a lot of money and then we get into an accident and realize we don't have coverage that's going to protect us and we have to come out of pocket a whole bunch of money and it's the same thing with these terms and conditions. We think we could just copy these things online.

Shawn

Ah.

ethan

Use them on our website. It was enough to get onto the app store. Great. But then there's a problem and then you look at the terms and you realize these things aren't protecting me because they weren't reviewed by an attorney or drafted by attorney or more particularly they weren't tailored to our business and now you're really stuck and you think to yourself man. Saved a few bucks on the front end but this is a disaster on the back end and it's very similar to kind of an insurance situation. So you obviously don't want to spend you know millions of dollars on lawyers when you're a startup at the outset to draft like the perfect legal treatise. But your house ought to be smart and weigh your risk and reward and I think having at least.

Shawn

Definite and do.

ethan

Basic terms and conditions that are tailored to your business is worth that investment kind of like an insurance ah properly curated insurance policy just so that you can avoid the big damages that happen later.

Shawn

Awesome! Well listen I think that ah this ah experiment in a new format of this podcast was a stunning success. We brought this in at a sweet 26 minutes um

Shawn

I however, this is my first day on the job. So I have no idea what kind of ah plugs you have to do or things you have to say at the end of your podcast to wrap it all up. So I'm going to throw it back to you.

ethan

You know like subscribe follow do all the things This is like the time of the podcast where you're probably not listening anymore anyway which is cool. But if you like what we're doing subscribe if you want more legal tips as it relates to social media and the law follow us on the social media law firm on you guessed it social media.

Shawn

Yeah.

ethan

Instagram Youtube tiktok Linkedin Facebook I'm not really on x or Twitter um, and yeah, hope you enjoy it if you got questions let me know if you agree awesome tell me, we're great tell me Sean's great if you don't agree, let me know in the comments and we'll get into a heated discussion about it and you'll probably win the argument but it'll help with the algorithm. So.

Shawn

Yeah, and if you call for my firing I will find you so know that know that and my lawyer was here when I said it So it's perfectly legal for me to threaten you like that all right good night.

ethan

Go nuts.

ethan

Thanks. John.