However, Weinsteins stance that user-to-user IM communications are exempt from the controversial clause isnt sitting well with legal experts. Rob Hyndman, a technology lawyer based in Ontario, pointed out that the terms of service covers the entire AIM product and does not explicitly exclude instant messaging."To be fair to them, I think the errors are innocent, and more the result of sloppy drafting and a reflexively heavy-handed approach to drafting TOS," he said. Hyndman also took issue with Weinsteins explanation that the heading "Content Your Post" and the use of the word "post" automatically exclude IM conversations. "They seem to say that using that verb means their privacy language only applies to contributions to public forums, i.e. where one posts. But if thats true, why do the TOS use the verb post when referring to all AIM products, if not all AIM products can or do post?" he asked. In addition, he pointed to the very last line in the terms of service, which reads: "The section headings used herein are for convenience only and shall not be given any legal import." That line, Hyndman asserted, renders Weinsteins explanation weak. "Many lawyers natural tendency, especially when drafting to the retail market, is to put as much oomph in the TOS as possible from their clients perspective. They make it as broad as possible, essentially. Until quite recently, there really was no way for customers to respond to this," Hyndman added. Public impugnment of AOLs privacy policies could have serious ramifications for the companys attempts to monetize its instant messaging network. AOL uses the AIM@Work service to hawk business-related tools like Identity Services to allow the use of corporate e-mail addresses as AOL screen names. It also offers premium services like voice conferencing and Web meetings. Editors Note: This story was updated to include comments from Rob Hyndman. Check out eWEEK.coms for more on IM and other collaboration technologies.
"I think the AOLs of the world dont take the impact their TOS [terms of service] have on users seriously enough, generally because they have market power and the customer doesnt," Hyndman told eWEEK.com, arguing that the AIM terms of service appears all-encompassing.