First a disclaimer, my name is Kim, I’m not a lawyer – more importantly I’m not your lawyer and I am not a lawyer in the United States of America. Nothing following it to be taken as personal legal advice, it certainly does not form a lawyer-client relationship and please do not take legal advice off random bloggers.

So, a lot of people have been posting screenshots of the new Terms of Service (“XTos”) on X nee Twitter (“Xitter”), but I haven’t seen many people doing much of an analysis into what they actually mean. So I decided to look into it before 15 November 2024, when all these changes take effect.

While some of the changes have been, on the surface, a little alarming most of it is fairly banal when taken in isolation. When looked at a whole, it paints a rather grim picture for the platform, those who continue to make use of it, and the those who are not on there but are directly impacted by the activities there.

It’s bad, but to truly understand how bad, we need to have a good look at everything and see the overall picture that it paints.

The Summary (provided, not mine)

The summary includes, pretty much all the standard stuff you would expect to see – except the last paragraph includes this summary that while you do have remedies and right to redress, they will be limited to not more than $100 or the amount you paid in the last six months.

Keep that in mind, they fuck you over and the absolute maximum they expect you ask for is either a refund for the last six months, or $100 US. For immediate context there, many places like Australia and New Zealand have consumer protection laws that usually cover you for twelve months. So this is half the bare minimum there.

We’re not off to a great start.

Outside Europe

There are two sets, one for people who live in the EU, EFTA States, or UK; but they start with the one for everyone else (including the USA) so let’s look at that one.

What do you mean “you”?

The first section “Who May Use The Services” specifies that you can only use the services if you:

• Can form a binding contract; and
• Are not a person barred from receiving services under the laws “of the applicable jurisdiction”; and
• You are at least 13 years or older

Interestingly while it takes the time to clarify who “you” is, it does not clarify how it will decide which jurisdictions are applicable – so it seems we could have a repeat of the Brazil incident.

The “CONTENT”

Traditionally on most platforms this is a fairly chunky section, laying out the rules of what you can and can’t say in order to make sure that their advertisers still want to work with them. This one does start with the usual disclaimer that the content posted by the users is not endorsed by the platform, and then it takes a dark turn.

After running into the usual “You understand you might run into bad content” disclaimer that includes a disavowal of editorial control or responsibility (which is standard since Stratton Oakmont, Inc v. Prodigy Services Co,¹ Stratton Oakmont, Inc v. Prodigy Services Co 23 Media L. Rep. 1794; 1995 WL 323710; 1995 N.Y. Misc. LEXIS 229 thanks Jordan).

(Strangely his contribution to fucking up the Internet was not in the movie)

Then they state they may take down some content, and the examples are:

• Copyright or Trademark issues
• Impersonation
• Unlawful conduct
• Harassment (attacking individuals, violent event denial, unwanted graphic imagery, insults, deadnaming)

That’s it! Now, it does link to the Report a Violation page which currently has only a few additional items:

• Sale or promotion of counterfeit goods
• Privacy towards children (i.e. please snitch out anyone under 13)
• Child sexual exploitation
• Pornography (in profile photos and/or header photos)
• Private information posted on X (this thankfully does include doxxing and revenge porn via the current policy)
• Spam and system abuse (malware/hacks)
• Violations of the ads policies

What isn’t covered in there, anywhere, which have been issues:

• Use of slurs (the only word Elon considers a slur is “cisgender”, and he’s wrong)
• Spreading of general hateful conspiracy theories (other than violent event denial)
• Political manipulation through the deliberate spread of harmful misinformation
• Promotion of individuals or groups who happen to be advocating for violence, etc
• Active misrepresentation that isn’t impersonation

Then there’s how to get in touch over a copyright complaint, for more information on why US companies care about copyright so much I highly recommend this great piece on the history of copyright and the Internet by Sarah Jeong, complete with WinAmp skin style presentation. It really whips the llama’s ass.

Your Rights

Immediately afterwards is the customary disclaimer about your rights regarding your own content. It starts with the obvious disclaimer, what’s yours is yours. Slipped into the middle of the usual, necessary, disclaimer that you give the site that you want to show your content the right to show your content, is:

For clarity, these rights include, for example, curating, transforming, and translating. This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for us to (i) analyze text and other information you provide and to otherwise provide, promote, and improve the Services, including, for example, for use with and training of our machine learning and artificial intelligence models, whether generative or another type;

So essentially they want everything on the platform to be available to train Grok, possibly in the hopes that by using the content of just the demographic who are comfortable staying and positing regularly, they will be able to make it less “woke” than the OpenAI dataset currently makes it.

This should be of particular concern to visual artists, musicians, and video content creators since it means you are basically having your work exploited without compensation. Also, while normally a change like this is not retroactive, Elon has not got the greatest record with compliance so its anyone’s guess if he’ll consider historical content fair game.

The one upside to all of this is that the contract which is the XTos includes this almost immediately after:

We have an evolving set of rules for how ecosystem partners can interact with your Content on the Services. These rules exist to enable an open ecosystem with your rights in mind.

So, despite not really covering what they may be, Xitter does acknowledge that you do have rights, and they have a duty to keep them in mind.

Using the Service

Immediately after telling you that they will only do very specific types of content moderation, you are now directed to “the rules” and told it is your responsibility to be aware of them and “all applicable laws”. (Keep the pin in that)

There’s the usual stuff about how they will do everything that have to under law to not get raided by cops. Fair enough.

Notably the usual paragraph about their right to limit or refuse service etc specifically claims “reclaim usernames” so I guess Elon’s planning to steal more handles in order to promote reactionary politics.

It then covers all the specific areas with their own terms of service such as paid members, developers, security researchers, and advertisers.

The following sections are all very banal, “Your Account” “Your License to Use the Services”, “Misuse of Services” and “Ending These Terms” are all things the lawyers clearly

Strangely, the “Your Account” doesn’t mention the bit about how Elon can just take your username. Rather it simply starts with the standard disclaimers that you should keep your password safe and use two-factor authentication, and if you stop using a phone number you gave them its your job to remove it. Makes sense.

The “Ending These Terms” covers that you can request your account deactivated and X can deactivate your account for you for the usual reasons (rules, legal exposure, inactivity, etc) and “our provision of the Services to you is no longer commercially viable”, and there’s information for your appeal process.

Disclaimers and Limitations of Liability

Okay, so we into the real lawyer stuff, what Xitter is NOT liable for. There’s the usual boiler-plate blanket statement intended to operate as a general shield to any and all events.

Then it restates that the absolute maximum you can claim for is:

• $100 US; or
• A refund of up to the last six months of what you paid Xitter

Immediately after this, in the “Liquidated Damages” section is the infamous double standard, where, because protecting their user data and system resources is so important, that in addition to all other legal remedies available to them, they can charge you $15,000 US per million posts you look at within a single 24 hour period.

Further, they specify that by agreeing to these terms:

1. You agree this is “a reasonable estimate of damages” (note, they don’t clarify how this damages them); and
2. Not a penalty (🤣); and
3. This is not the limit of their legal rights, and they can still claim more damages and or equitable relief (reversal of contracts, injunctions, etc)
4. Repeated violations will irreparably harm and thus entitle Xitter to injunctive or other equitable relief as well as money.

Note, nothing about this was mentioned in “using the service” and again, they don’t specify how this damages them, but perhaps looking into Musk’s many lawsuits could give us some insight.

You might also remember that after he started suing media watchdogs for watching the media, he also had the incident where accessible data showed that not only was he wrong about Xitter having the least antisemitic content of any platform, it actually had the most.

In fact, there is more evidence to support this idea coming up – but what I want you to keep in mind is Elon’s current, ongoing dud lawsuit against Media matters:² X Corp. v. Media Matters for America, 4:23-cv-01175, (N.D. Tex.)

• Struggled to find anything resembling a cause of action; and
• Is believed by many to be only surviving dismissal because it is before Judge Reed O’Connor, who refused to let it be dismissed for lack of jurisdiction and/or failure to state a claim; and
• When Elon filed an antitrust lawsuit against a collection of some of the biggest former advertisers on Xitter, he did so in the same forum and so initially had the same judge (until he recused himself without comment)
• Appeals in this forum go to the Fifth Circuit, who are controversial due to their rulings frequently being in opposition to other circuits, common law, US constitutional law and God.

General Terms

Blah blah usual rights to change terms in future, and:

The laws of the State of Texas, excluding its choice of law provisions, will govern these Terms and any dispute that arises between you and us, notwithstanding any other agreement between you and us to the contrary. All disputes related to these Terms or the Services, including without limitation disputes related to or arising from other users’ and third parties’ use of the Services and any Content made available by other users and third parties on the Services, will be brought exclusively in the U.S. District Court for the Northern District of Texas or state courts located in Tarrant County, Texas, United States, and you consent to personal jurisdiction in those forums and waive any objection as to inconvenient forum.

What does this mean?

• Even though Texas might normally use a different region’s laws in its normally appropriate to do so (usually because the wrong doing took place in another jurisdiction) you can’t ask them to do that; and
• No promise from Xitter overrides this, Elon can swear to you upon the souls of his children (or alternatively something he actually cares about) that if it goes to dispute he’ll let you use your local laws, sign it in blood and it doesn’t count. That’s what “notwithstanding any other agreement” means in law.
• It will be brought exclusively in the court where they are likely to draw either Judge Reed O’Connor immediately (for federal) or if they push it to federal (for say, it being about a matter of $75,000 or more – so basically claiming you looked at 5 million posts in less than five days).
• You waive your right to claim this is unfair even if you’re physically or legally unable to take action in that court (yeah, inconvenient doesn’t just mean “I don’t like it” it can literally mean “I can’t afford it and I’m currently in prison in another country.”)

Now, in the current terms it has a lot of this wording but with Fresno County, in the State of California, which Elon has been famously getting pwn’d by and is generally understood to be far more likely to make reasonable rulings, and be supported in doing so by law makers. This is, presumably why Xitter moved to Texas.

Immediately following this:

Without prejudice to the foregoing, you agree that, in its sole discretion, X may bring any claim, cause of action, or dispute we have against you in any competent court in the country in which you reside that has jurisdiction and venue over the claim.

So yeah, “applicable law” above means:

• You can only take legal action against Xitter in a specific court where Elon really likes the main federal judge, and the appeals court is known for being bonkers; but
• Xitter can, entirely on its own discretion, take legal action against you in any court in the country you live – this is important because in many countries, there are split court systems. If I still lived in Brisbane, Queensland, Australia and this article committed trespass to Elon’s feels, he could sue me in Perth, Western Australia – 3,606 kilometers (2,241 miles) away. Just moved back to Canada and admitted your French has gotten terrible due to lack of practice, get read to be sued in Quebec.
• Xitter can also sue you in the Northern District of Texas, get a judgement by default when you don’t show up, then use that judgement from a “superior court” as proof in an enforcement action in your own jurisdiction. This is not 100% reliable for them, but challenging it will require you to retain a lawyer and fight it in court.
• Xitter can just decide whether Texas law, US federal law or whatever they propose your local laws to be is what decides if they should or should not ban you.

Also you waive the right to a class action, “to the extent permitted by law”, so whatever that means.

There is an acknowledgement that Federal States in the US can’t be bound by this, which really they didn’t have a choice in.

Oh, also regardless of your usual statutory limitations etc, you have to bring your action within 1 year of the event or the discover of the facts giving rise to the dispute.

Otherwise, to the extent permitted by applicable law, you forever waive the right to pursue any claim or cause of action, of any kind or character, based on such events or facts, and such claims or causes of action are permanently barred.

So unless you’re either a) rich, or b) a resident of Tarrant County, Texas, you’re probably not going to have the ability to get things going in time and are basically double exposed and they’re going to argue that you’re only entitled to $100 anyway so the court shouldn’t even hear it as anything other than small claims.

There is then the standard disclaimer that in the event any of this turns out to be unenforceable, they’ll waive only the parts that aren’t enforceable.

The Other Version

So what’s the version for the EU and friends like?

Well the main differences is instead of 15,000 US Dollars you’ll be on the hook for 15,000 Euros (about 8% more at time of writing) and you will be in “a competent court in Ireland without regard to conflict of law provisions” and governed by Irish Law.

At this point I should note that of these regions, Ireland is one of the few that uses the Common Law system rather than the Civil Law, and it is where Xitter keeps its headquarters so this one kind of makes sense. What is telling is that there is no attempt to put it before a particular court.

And yeah, they can still take it to you any time they like, or choose to sue you in Ireland if they prefer.

Analysis

Xitter’s new terms and conditions aim to minimize its obligations to act in the way we’ve come to expect social media platforms where it comes to managing abuse, toxicity and harmful misinformation. This comes, ironically, around a time when Australia (and presumably other places) are looking to pass laws to prevent platforms from getting away with this.

This coincides with them rendering the block button ineffective in a way no other platform does, likely in an attempt to effectively remove it without being removed from Apple and Google’s app stores.

Taken together these changes essentially:

• Disempower vulnerable or marginalized users, who must essentially sacrifice their voice in public forum in order to gain basic protections; and
• Empower reactionary and hateful users, who can act with impunity for the most part and count on moderator discretion when they mess up; and
• Presents legal obstacles and hurdles to anyone who is harmed by the above, to the extent that only the wealthy will have access to redress and then will likely have to go through an unnecessary ordeal to approach it; and
• Enables Xitter, while hiding behind a choice of law clause, to still target individuals in their home jurisdiction; and
• Creates a framework for Xitter to raise spurious lawsuits against any watchdogs or parties who claim they have done an analysis of the content, which is effectively all you need in most cases to scuttle them; and
• Intends to use the remaining userbase who will thrive in this kind of environment to train an AI, which presumably has the goal of making “currently woke” Grok even more racist than Tay could ever become. This is particularly worrying given recent events; and
• Anyone who acts up can be memory holed for not being commercially viable.

I should also note that while many other jurisdictions take a dim view of trying to use click-wrap contracts or incredible broad terms in contracts – the US generally takes the view of letting people agree to whatever and then making it an uphill fight to prove otherwise. Probably the best illustration of this was the recent Disney lawsuit over a food allergy causing a wrongful death.

Overseas Judgments

I worry that I’m understanding the potential use of these, so I’m going to elaborate further upon them.

Common Law

Under the common law, in the absence of a local law that validates external judgments – a judgment from a “superior court” (one that deals with nation-wide issues) can be taken as proof of damages (ie money owed) and used in a local action against the party.

What that means is, suppose you make a post that points out something unpleasant going on Xitter disagrees with you whether it happened on their platform but an advertiser agrees and suspends buying ads. Xitter sues you in Northern District of Texas for what they estimate you cost them, and succeeds by default.

Federal court in the US is considered a superior court.

Xitter could then take this judgment and and apply for a judgment in your local area, for the amount that the Texas court assigned. The onus is then on you to find a basis why this shouldn’t be applied, and its quite possible there might not be one. General reasons are:

• You never submitted to the jurisdiction of the foreign court, ie you were never properly served; or
• The foreign court was clearly the incorrect forum to hear this, and should have known it (note: Xitter wants you to waive this one); or
• Some aspect of the judgment is so incompatible with your local laws, to such a degree that it would be fundamentally unjust or shock the conscience of your local population.

Obviously, even if you succeed, this costs money and induces a great deal of stress on you as well as the general risk that the judge of the day might make an error in ruling, and then it’ll go to appeal. The whole thing can easily end up costing you the price of a luxury car to get back to status quo.

Upon third parties

This one is particularly sinister when you think about who is likely to draw the ire of Xitter. In the current era pretty much every major commentator on politics, social issues, etc has some sort of funding platform to allow them to take the time do the work of providing that commentary. YouTube revenue, Amazon, KoFi, Patreon, Ghost, etc.

Pretty much all the main sources are based primarily in the US, and that means they are vulnerable to legal action in the US.

So suppose you’re a small time essayist outside of the US, and you’re reliant on YouTube ads, Patreon memberships, Ghost subscriptions and Amazon royalties – guess what? If a judgment against you in the US, Xitter can start demanding they get your money instead and the court will agree with them.

So yeah, they can absolutely use it to starve their critics on the platform, quite literally for people who are dependant upon that income.

Can’t you stop it?

Well yes, you can via a variety of remedies, but frankly the way the US courts tend to prioritize wording in contract and the general complications of such mean that again – only the wealthy will have access to justice in this scenario.

Conclusion

It’s time to go.

I am sympathetic to everyone who is still on Xitter due to business reasons, reach, inability to transfer your audience across, standing up on principle, etc. but at this point the ship is sinking and the dangers of staying on board are going to rise exponentially.

The change has already triggered a massive migration of users and activities onto other platforms, and the predictable outcome is that its going to become less and less viable for genuine business. It’s going down in flames, and it’s going to burn anyone who stays close to it.

If nothing else, remember that if you’re using Xitter for business – in the event that something it does crashes your business, either through negative associations (you’re in a screenshot with a pro-hate crime post), becoming the victim of a decentralized hate campaign, or just being deleted because you’re no longer commercially viable – they’ll argue in court the absolute most you deserve is $100 US.

Do you really want to keep doing business with someone who considers your livelihood and your life’s work to be capped at a value of $100 US?

Do you really want to keep being actively present on a platform where they actively devalue you down to $100 while specifically reserving the right to cost you a small fortune in legal fees through forum shopping?

Personally, I don’t plan to delete or private my account, but I am going to refrain from sharing anything of value on it and continue to reduce the frequency with which I check in.

Assuming I don’t get banned for being commercial non-viable or something.

• 1
  Stratton Oakmont, Inc v. Prodigy Services Co 23 Media L. Rep. 1794; 1995 WL 323710; 1995 N.Y. Misc. LEXIS 229
• 2
  X Corp. v. Media Matters for America, 4:23-cv-01175, (N.D. Tex.)