Terms of Service: FAQs - Web Content Managers Forum

1. What are these Terms of Service (TOS) amendments?

A coalition of federal agencies, led by GSA's Office of Citizen Services, began working with a broad range of providers of no-cost social media products to develop amended Terms of Service (TOS) agreements that reflect the needs of federal users.

GSA led this effort because the existing standard Terms of Service on most social media sites do not comply with federal law and in many ways are not compatible with agency expectations and practices. Working with providers to amend their standard TOS for federal users eliminates those problems.

Providers who want to offer, for the federal government's consideration, free social media products under federal-friendly Terms of Service can do so through Apps.gov.

If an agency chooses to use various social media sites and tools to accomplish its mission, the agency won't have to start from scratch in negotiating with the providers if federal-friendly Terms of Service are offered on Apps.gov. However, each agency must first consider its own policies for the use of social media, its specific needs, expectations and practices, along with a legal review, before signing the agreement.

While these TOS amendments resolve the major legal issues of the sign-up process, clarify expectations, and set the stage for productive use of these services, agencies must still comply with laws and regulations on security, privacy, accessibility, records retention, ethical use, and other specific agency policies and requirements when they use the tools. This is why we recommend you seek the advice of your agency counsel on whether the TOS is legally appropriate for use by your agency.

Because these products and services are free and don't involve agency appropriated funds, the agreements are not considered to be government contracts nor are they procurements under the Federal Acquisition Regulation (FAR). In contrast, fee-based products fall under all federal procurement rules and regulations, and are not part of the line-up of social media products on apps.gov.

2. What if I want to use a free social media in my agency?

If you're an employee at a federal agency and identify a business need for a product or service, you should follow these steps to coordinate within your agency:

· Go to Apps.gov to find free social media providers that now offer federal-friendly terms of service for government consideration.

· Once you find the app you are interested in, you must "enroll.”

· To enroll, fill in the required information including a brief justification explaining how your agency will use the app.

· Submitting your request will automatically send an email to your agency POC who will know if your agency has already signed an agreement with that provider.

· If approved (or rejected), you will receive an email from your agency POC. If approved, the agency POC can also tell you how to proceed with each app provider to initiate the service.

· Your agency POC can tell you if your agency is already using the product or service; if there's a signed Terms of Service in place; and how you can coordinate efforts within your agency.

If you're at a sub-agency within a cabinet department (for example, CDC or FDA), you should work with contacts at the cabinet department-level (that is, HHS). This is important since, in most cases, a single agreement is being negotiated and signed for the entire department.

If you have questions that your POC can't answer or if you have questions about appointing a POC, please contact Andrea Sigritz.

3. What about state or local agencies?

At this time, these TOS amendments only cover federal agencies as they were written to comply with federal law. The National Association of State Chief Information Officers (NASCIOs) has told GSA it is working with states to develop a template that appropriately addresses general state requirements, so that NASCIO can begin discussions with individual providers on behalf of states.

4. How can I tell if my agency has already signed—or plans to sign—an agreement?

We've included the point-of-contact (POC) for major federal agencies so you can contact them with questions. In most cases, the POC is the agency's representative on the Federal Web Managers Council. If you're at a sub-agency or bureau within a cabinet department, you should work with the person who is the designated POC for the department.

If you have questions that your POC can't answer or if you have questions about appointing a POC, please contact Andrea Sigritz.

5. Can agencies negotiate their own Terms of Service?

Yes, agencies can negotiate their own agreements if the provider is willing. No single agency has government-wide authority to sign these agreements on behalf of other agencies, or to impose an answer on another agency that may have unique needs calling for a specially tailored agreement.

That said, Apps.gov offers a process where the ultimate goal – whenever possible – is to develop an amended TOS for each provider that satisfies the needs of most, if not all, federal agencies. This saves time and money for both the government and the providers. Understandably, in the absence of monetary incentives, social media providers may not want to negotiate different TOS's with dozens (or hundreds) of different agencies, since that would be a costly effort. It's also not efficient for the government to negotiate dozens of different agreements.

In cases where a social media provider has not yet signed an agreement with any agency, one agency may wish to take the lead in negotiating the TOS agreement. The starting point for negotiating should be the model agreement available at http://go.usa.gov/liM, which incorporates the experience of two-dozen previous negotiations. Agencies who are taking the lead on negotiating a new TOS are encouraged to contact Andrea Sigritz at GSA (socialmediaapps@gsa.gov), since GSA wants to track these efforts can be tracked and share the results across agencies.

GSA is available to assist agencies as they work through terms of service agreements and implementation. GSA and federal agency points of contact will share information with each other as their agencies consider products and agreements, and will work together on agreements when multiple agencies want to use the same product.

6. What if I am a company that has a free social media product I want to offer the government – one that is not yet on the list of completed TOS amendments?

GSA welcomes expressions of interest from Providers who want to offer, for the federal government's consideration, social media products that are free of charge. If you are such a Provider, please send an email to socialmediaapps@gsa.gov and include the following information.

1. Explain what free social media product you have that you are offering for the federal government's consideration. Include name of product, product description, logo, and which sub-category of social media apps your product fits in on Apps.gov

2. Provide specific examples of how the government could use your free product to meet their mission objectives (including information on any federal agencies already using your product); and

a. Make sure your terms of service comply with federal law. To determine whether your Terms of Service are compatible with federal law (are "federal friendly") please refer to the model template at http://go.usa.gov/liM . It lists the points, issues, and concerns that typically arise in standard terms of service and are problematic for federal agencies. This model agreement suggests replacements that would be acceptable to most federal agencies.

b. If your general Terms of Service are already federal-friendly, include a link to those general terms.

c. If your Terms of Service need to be amended to make them federal-friendly, please tell us how you will accomplish this. Options include:

i. The quickest and easiest way to get to a point where federal agencies can legally use your product is for you to incorporate these federally-appropriate clauses into your standard/general Terms of Service. You can do this by express revisions within the document (by way of example, you could indicate in the existing clause on law and jurisdiction, that if the user is a federal agency, federal law and federal courts will be used). Or you can do this via a link ("Use by federal agencies will follow the terms found here [link]") Either of these choices will allow many agencies to sign up via the automated, labor-saving "click-through" process.

ii. If you prefer to draft a "side-letter" amendment for consideration by federal agencies, please include in your email (or attach) a first draft of an Amended Terms of Service Agreement for use by Federal Agencies. This is the document that will be reviewed by each agency who would like to consider using your product. You can replace this document with updated versions as you negotiate with agencies.

3. List contact information so that interested agencies can contact provider.

4. Provide any specific instructions you need to give federal agencies that would use your product under a signed agreement.

GSA will then post to apps.gov, in a timely fashion, your product name and related information, if you have provided all the requested information. When we have a queu, we will prioritize requests to accomodate an agency that has identified they are ready to use the product. Once you are on apps.gov, you will be seen by potential agency users as a Provider who offers free products and who is willing to agree to federal-friendly terms of service. Agencies will review the products to see if they meet their business needs, and also review the terms that the provider offers as being federal-friendly (either your general terms or a proposed amendment for federal agencies, as described above) to see if they meet agency programmatic and legal requirements.

If your interaction with federal agencies results in changes to your initially-submitted federal-friendly Terms of Service, you must send the updated terms to GSA at socialmediaapps@gsa.gov. GSA will post your latest offered terms on apps.gov for subsequent agencies to review.

7. How can I get a copy of the agreements?

A list of providers offering federal-friendly Terms of Service for free social media products is available on the GSA Cloud Storefront at Apps.gov.

8. What are the issues you've negotiated in the agreements?

Prior to 2009, the government generally could not use social media tools for mission-related purposes, such as public outreach, citizen engagement, personnel recruitment, training, and idea generation. This was because Web 2.0 providers as a general matter required potential users, before opening an account, to agree to the company's standard Terms of Service (TOS), which contained provisions federal agencies by law could not agree to. To lift this roadblock, GSA and other agencies began negotiating with Web 2.0 providers for free service under amended terms and conditions that respect the unique status and needs of the federal government.

GSA has developed a model template at http://go.usa.gov/liM listing the points, issues, and concerns that typically arise in standard terms of service and are problematic for federal agencies. This model agreement suggests replacements that would be acceptable to most federal agencies.

If you have questions that your POC can't answer or if you have general questions please contact Andrea Sigritz at socialmediaapps@gsa.gov

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