There have been some developments in the AIM story, which I’d better report here for completeness’ sake, since I’ve been shooting off my mouth about it.

First of all, AOL will be bringing out a revised TOS. Ben Stanfield is claiming vindication, both on his blog and in an e-mail to me.

Ben points out that lawyers agree with his position on ownership and content: essentially, the terms of service permit exactly what Ben says they do (e.g. here and here). Fair enough: point conceded. But that doesn’t mean that AOL was lying when it said it wasn’t monitoring communications. As their spokesman said, the offending passages of the TOS were only intended for public posts. From the CNet article:

That unfortunate wording was intended to apply to an AIM feature called “Rate-a-Buddy,” spokesman Andrew Weinstein said. Like the classic HotOrNot.com site, Rate-a-Buddy permits AIM users to post photographs publicly so others can rate them on how “cute” and “interesting” they seem to be.

The Rate-a-Buddy language was “wrapped into” the AIM terms of service, and that “inartfully” worded phrase has been deleted from a new version that will be made public Tuesday, Weinstein said. “It’s going to make it very clear that this section applies to public areas.”

In other words, they goofed. What they intended was not what ended up in the legal language. (As someone who once edited laws and regulations, I can tell you that that happens all the time.) So we’re not talking about a change in policy, only a change in legal wording to better reflect AOL’s intent, which has not changed. This is the legal equivalent of correcting a typo, though, granted, mistakes in this context have a much greater impact. (You think this is bad? Imagine this kind of confusion happening in, say, criminal law, and you will understand why lawyers are expensive.)

There were two separate questions in this controversy: what was in the terms of service; and what plans AOL had for our data. Ben and those who agreed with him focused on the first question; I and others focused on the second. Neither of us was wrong, but neither of us was really answering the other’s question: the TOS did not mean that AOL was lying; and AOL’s statements did not explain away the problematic clauses in the TOS.