If you think they're "very clearly laid out", can you quote the relevant sections, and definitions, from the terms that make it so? I've been searching, and asking, and not seen them yet.
The very first paragraph of "Apple Developer Enterprise Program License Agreement":
"Your company, organization or educational institution would like to use the Apple Software (as defined below) to develop one or more Internal Use Applications (as defined below) for Apple- branded products running iOS, watchOS, tvOS, and/or macOS, and to deploy these Applications only for internal use within Your company, organization or educational institution or for limited use as expressly set forth herein."
While I've seen other potentially-applicable sections quoted elsewhere, a traffic-research app used by paid contractors of a company would seem to meet both the "Internal Use Application" definition, and the "Permitted Users" definition.
Further everyone's points about a form 1099 and how paying consumers doesn't make them a contractor, I also want to add that people as young as 13 were being targeted by these programs. Everyone under 18 is unable to sign a contract and therefore can't be a contractor, anyway.
Do you have a source for these stories you keep reporting happened? Because I haven't seen a single link supporting this narrative.
Additionally, the minimum age for non-agricultural workers is 14 anyway, so even then they're in the wrong and can't legally hire 13-year olds as contractors or employees. There's also several other rules in the FLSA pertaining to workers under 18 including minimum wage. I have a sneaky suspicion $20 per whatever period it is (unless said period is a few hours) is going to be under that wage.
Not to mention there's a whole lot more can of worms being opened specifically around minimum wage and recording hours that I highly doubt either Facebook or Google were actively managing.
They're not even producing goods or services for Google. They're selling access to data. They're selling rights.
I've never seen that relationship result in anyone being called a contractor and I've signed too many film contracts. I don't know where OP is getting this notion.
A contractor can be paid for piecework: compare Mechanical Turk. (And, the actual labor required to install the app, and answer any questionnaires, was probably on the order of "minutes" rather than "hours" – and thus compensated at far above "minimum wage".)
Here you can see a VentureBeat reporter – and one who is actually a member of the California State Bar of Attorneys – raise some of the same questions as I have:
Facebook's statement: "Key facts about this market research program are being ignored. Despite early reports, there was nothing ‘secret’ about this; it was literally called the Facebook Research App. It wasn’t ‘spying’ as all of the people who signed up to participate went through a clear on-boarding process asking for their permission and were paid to participate. Finally, less than 5 percent of the people who chose to participate in this market research program were teens. All of them with signed parental consent forms."
1099s are only required if more than $600 is paid in a year.
You are a "contractor" if you are providing services under a contract. A contract exists whenever there is a definitive agreement to exchange valuable considerations – even in the absence of a written, signed contract.
But the sign-up for these apps might have included an explicit "signing" phase! (It's even possible that FB/Google asked for participants' SSNs, just in case any payments went over $600.)
Apply some common sense here. A contractor charges money for their time. $20/mth is what I’ve read they were paid. That means anything more than 2 hours of work is breaking minimum wage laws.
And it could easily be less than 2 hours of effort per month to install/update the app and answer occasional questionnaires. But even if, outlandishly, a minimum wage violation, if they’re being paid under a contract, they’re ‘contractors’.
(And if they’re under any sort of confidentiality agreement or other conditions on their app usage, they fit under the Apple terms’ concepts of “Permitted Users” and “Internal Use” even better.)
Because that's a contrived interpretation, especially when the data wouldn't even exist unless the monitoring software was there to create it.
The panelists are selling their effort in installing/maintaining the software, and renting out their devices' processor-time/memory/bandwidth to run the monitoring app, and being compensated for any risks/delays such monitoring introduces. In some cases, they're also spending time answering questionnaires! That is, being paid to provide a service – where the delivery of the end-product of that service happens to be data.
But even if they were selling rights to data that they normally generate in private, they're still doing it under the terms of a contract, in return for payment, which makes them a contractor for the duration of the time they're delivering the data.
For comparison, consider a services company which installs phone-trackers & cameras in a retail location, then provides the resulting data about customer paths/visits to the retailer. That company isn't primarily "selling rights to data". They're selling a service, requiring their equipment and time, where that data is created and delivered. And they're doing it under a contract, and they too are a contractor, not a mere "data vendor". And it's the same with natural persons who enter a legal agreement with FB/Google to run FB/Google's software on their own devices, occasionally answer questions & update that software, obey the other terms of the legal agreement, and report back the resulting data to the corporate contractee.
> especially when the data wouldn't even exist unless the monitoring software was there to create it.
The data does exist, in transit. It's google's own code which creates new metadata from it; that's not anything each individual vendor/user is doing other than providing access to the data for google to collect. You're a developer; this should be apparent to you.
I'm not really here to debate the legal merits with someone when neither of us are qualified to do so (you're not a lawyer, I'm not a lawyer, and existing lawyers have already commented on this to no end and disputed endlessly the idea that anyone in this arena would be considered a contractor). I'm just seeing how much you're willing to flesh out your novel legal theory in association with your public name on the internet.
Which lawyers have said they're not contractors? (I haven't noticed anyone responding to my queries who's reported legal expertise – but I have quoted a legally-trained reporter who advances the same interpretation.)
In what way does a person under contract to perform certain duties, on their own devices, being compensated, in accordance with a legally-enforceable contract not fit this dictionary definition of a 'contractor'?
Compensated research panelists meet all these definitions.
Did you know that Nielsen restructured its payments to its similarly monitored panelists, because it knew it'd otherwise have to 1099 them, like any other natural person receiving compensation for services under a contract?
You realize the debate is whether all counterparties to a contract are considered "internal" to Google, right? You're still missing that.
Vendors, Contractors, etc. are all counterparties to Google in their agreements. Vendors are not considered internal to any company unless explicitly stated.
It's so fascinating watching the machinations in your mind trying to justify that all of these folks are somehow internal to Google.
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Anyway, it's settled. Google agrees with the notion that the app should not have been operated under Apple's program, which itself is a tacit agreement with the premise that this app is not an internal app by any stretch of the imagination.
> "The Screenwise Meter iOS app should not have operated under Apple's developer enterprise program. This was a mistake, and we apologize."
You claimed: "existing lawyers have already commented on this to no end and disputed endlessly the idea that anyone in this arena would be considered a contractor"
But now there are... none? So you hallucinated their comments?
And you can't identify any way the panelists don't meet the multiple 'contractor' definitions I've provided?
And you've apparently forgotten that the Apple terms explicitly allow the enterprise's contractors, as part of the definition of "Permitted Users".
I've stated elsewhere that the apps may have violated another aspect of the Enterprise Terms, about the use of the "Network Extension Framework". And further that even if the use was OK by the current terms, Apple has the power to change them.
And both Apple and Google would rather this go away, so Google isn't going to go-to-the-legal-mat with their best arguments unless this platform cold war gets a lot hotter. (In particular, some of the best anti-competition arguments that could be made about Apple's behavior are arguments Google wouldn't want made against its own behaviors elsewhere.)
So no, Google's admission of error is strategic kiss-and-make-nice rather than dispositive on the terms, and especially doesn't hinge on your insistence that these contracted workers aren't 'contractors'.
"A Vendor, in contrast, is just a contractor who provides goods and/`or services to the recipient so the recipient can accomplish the project’s purposes. Selected terms and conditions might be passed through to the vendor."
It's an inappropriate reference, anyway, since it's specifically talking about the lingo of federal grants, not more general agreements. But if you're imagining lawyers-in-the-conversation who aren't here, and supplying links that explicitly refute your claim of a bright-line vendor/contractor distinction, I think we're done. Good day, sir!
> But now there are... none? So you hallucinated their comments?
I linked one on the open web. I've linked others in my past comments...
> And you've apparently forgotten that the Apple terms explicitly allow the enterprise's contractors, as part of the definition of "Permitted Users".
It actually doesn't. The constraint is employees or persons who are obligated to protect the internal use application from unauthorized use. Screenwise Meter has no NDA or other substantive clause (from what I can google) binding its users to protect it from unauthorized use per the definition of Permitted Users apple put down on paper. Should be noted that this is also one of the general distinctions between most vendors v. most contractors producing work for hire.
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Google admitted to a mistake you're still saying they didn't make, in contradiction to "go-to-the-legal-mat with their best arguments unless this platform cold war gets a lot hotter." They just went on the record saying what they were doing was wrong. Which gives them a mighty hard time in the public arena trying to repeat it.
> I think we're done. Good day, sir!
So you're right, we're quite done. I still wouldn't have taken the position you took up with your name attached to it on the open internet, but you do you.
You're looking for the "Apple Developer Enterprise Program License Agreement" — I found it in ten seconds. The only production applications allowed on the cert are internal applications ("Internal Use Applications developed for macOS can be distributed under this Agreement using an Apple Certificate or may be separately distributed.") Or applications under development (2.1 Permitted Uses and Restrictions, Program Services). Also outlined are explicit unpermitted uses and a general declaration that anything outside of 2.1 won't fly (2.6 No Other Permitted Uses, specifically "You may not use the Apple Software, Apple Certificates, or any Services provided hereunder for any purpose not expressly permitted by this Agreement,").
Edit: for anyone who wants to spare themselves the chain, OP is missing the distinction between vendors, contractors, and other service providers and is interpreting the presence of any contract as rendering a person as a contractor. In this case, it's likely (IANAL) that each individual user of the service would be described as a vendor selling access to their data. The data itself is not created for Google's (or Facebook's in that previous case) consumption.
The link to the developer agreement is helpful, thanks. (The previous link someone had sent me couldn't be viewed by me, even as a paid-up member of the Developer program.) But none of what you quoted specifically restricts use by a company's contracted research panels.
--
Added in response to edit: The links to Quora/StackExchange, however, miss the point. Anyone who's entered a contract to provide a service in return for compensation is a 'contractor', both in legal terms, and in layman's terms. Facebook's description of their on-boarding, especially, suggests there was sufficient "meeting of the minds", mutual agreement, and exchange-of-valuable-considerations as required for a contract to exist:
"Key facts about this market research program are being ignored. Despite early reports, there was nothing ‘secret’ about this; it was literally called the Facebook Research App. It wasn’t ‘spying’ as all of the people who signed up to participate went through a clear on-boarding process asking for their permission and were paid to participate. Finally, less than 5 percent of the people who chose to participate in this market research program were teens. All of them with signed parental consent forms."
> Google’s private app was designed to monitor how people use their iPhones, similar to Facebook’s research app.
Googling this, I don't see references to 1099, W2, or Corp to Corp contracts which might help anyone say it's "internal." Paying someone for a service does not make them a part of internal operations of a company.
It's this Screenwise Meter app which got the certificate nixed, and with it, any other apps on that cert were shattered. The aforementioned app was a non-internal app used in a production capacity, which falls out of the bounds of test/dev/internal apps enforced by the contract.
Tl;Dr: Google had in service a production application using a developer/internal cert. This caused the cert to fall in scope for revocation.
I know that's the fuzzy reasoning that's being reported. But the actual terms of Apple's agreement seem to allow "Permitted Users" who are "contractors". Contractors aren't just those issued 1099's: it's anyone "under contract".
If the mechanism for bringing participants into "Screenwise Meter" involved a contracted payment, it plausibly matches some of the expressly permitted uses, in the Apple Enterprise terms. (If it included an express written contract that limited the participants' use of the app, it further matches certain explicit requirements of the Apple terms.)
(There's another clause about using a specific "Network Extension Framework" that seems like a bigger problem for Facebook/Google, depending on what they likely did with that API and the info retrieved. But these clauses, about "internal use" and "permitted users", seem fully compatible with an internal-research-program using a panel of compensated research-subjects.)
That's false: minors can enter a contract with parental permission, and some of the coverage has Facebook saying they had parental permission for all underage participants.
But further, even if it was a violation if minors were involved, that'd leave open the question of whether use by contracted adults was compliant under the terms. (And supposedly the Google app wasn't offered to minors.)
And, paid research subjects meet the legal definition of contractor, as outlined here or elsewhere:
In this case, it's likely (IANAL, nor are you) that each individual user of the service would be described as a vendor selling access to their data. The data itself is not created for Google's (or Facebook's in that previous case) consumption. The users of the service were selling rights and were not producing anything for hire.
Except as set forth in Section 2.1, You may not use, distribute or otherwise make Your Internal Use Applications available to Your Customers or to any third parties in any way (excluding Your Internal Use Application that is for use on macOS)
Thanks! But note that section 2.1 expressly allows deployment to "Permitted Users", and "Permitted Users" is defined to include "contractors... who have written and binding agreements with You or Your Permitted Entity to protect Your Internal Use Application from unauthorized use".
Compensated members of these apps' research panels are quite literally "contractors" of FB/Google, and possibly even under written contracts that explicitly limit the apps' use as Apple requires. So what you've quoted doesn't demonstrate a violation.
"Internal Use Applications or Passes shall not be . . . distributed or made available to . . . contractors (except for contractors who are developing the Internal Use Application or Pass for You on a custom basis and therefore need to use or have access to such Internal Use Application or Pass)"
But that "shall not" is prefixed by "Except as expressly set forth herein", and other sections clearly mark many "contractors" as "Permitted Users" who are expressly allowed to use such Apps/Passes.
The only provision I see that's close to what you're talking about is the definitions section, which provides that Permitted Users include "contractors . . . who have written and binding agreements with You . . . to protect Your Internal Use Application from unauthorized use"
It's quite the stretch to say that this language, which by its text limits contractors to authorized uses, somehow expands the scope of authorized use. Even if you could get to that conclusion, it would not be "expressly set forth."
"Internal Use Applications or Passes developed using the Apple Software may only be deployed to and used by Your Employees or Permitted Users for internal use purposes or for limited use by Customers on Deployment Devices on Your (or Your Permitted Entity’s) physical premises or in other locations
when the use is under Your (or Your Permitted Entity’s) direct supervision and physical control as set forth in Section 2.1(f)."
Is it being used by "Permitted Users", which is elsewhere defined as including "contractors"? Yes.
Is it for "internal use purposes"? An internal customer research program, which is a cost-center and involves compensated research subjects, where the data is kept internal-confidential – and where perhaps even the research-subjects are under various kinds of NDA – is pretty "internal use" from my perspective. So, yes.
There's the "express authorization" that the following sentence doesn't revoke.
(Even the 2.1(f) allowance for customer use might be satisfied if the app has a central monitoring/disabling switch that counts as "direct supervision and physical control". But that's a little murkier, and the 2.1(f) allowance isn't strictly necessary for this use by compensated research subjects.)
> "Is it being used by 'Permitted Users', which is elsewhere defined as including 'contractors'?"
It is not defined elsewhere as including contractors. It is defined elsewhere as including contractors who use it for authorized purposes. The bootstrapping you're attempting here is circular reasoning.
Here's Apple's Enterprise terms definition of "Permitted Users":
“Permitted Users” means employees and contractors of Your Permitted Entity who have written
and binding agreements with You or Your Permitted Entity to protect Your Internal Use
Application from unauthorized use in accordance with the terms of this Agreement.
If the research panel subjects were under a written agreement to only use the app in the manner it was intended – such as keeping aspects of its use confidential, or disabling it when other non-compensated others were using their devices – doesn't that match the definition? Or are you claiming some other "circular" bootstrapping of extra fuzzy limitations on what "Permitted Users" are?
Look you're welcome to continue arguing this but ultimately this is a Terms of Service, not a contract. Apple can clarify this point at their discretion and even Google has now admitted in the wrong.
The Apple Developer Enterprise Program License
Agreement, linked from https://developer.apple.com/terms/ (Apple ID login required), makes it VERY clear that the Enterprise Program is intended "for in-house, internal use applications". This point is reiterated multiple times throughout the introduction, and is later made more explicit:
> "Internal Use Application" means a software program (including extensions, media, and Libraries that are enclosed in a single software bundle) that is developed by You on a custom basis for Your own business purposes (e.g., an inventory app specific to Your business) for specific use with an Apple-branded product running iOS, watchOS, tvOS, and/or macOS, as applicable, and solely for internal use by Your Employees or Permitted Users, or as otherwise expressly permitted in Section 2.1(f). Except as otherwise expressly permitted herein, specifically excluded from Internal Use Applications are any programs or applications that may be used, distributed, or otherwise made available to other companies, contractors (except for contractors who are developing the Internal Use Application for You on a custom basis and therefore need to use or have access to such Application), distributors, vendors, resellers, endusers or members of the general public. For the sake of clarity, Internal Use Applications do not include third-party applications even if some customization has been done.
There's other damning bits later in the license agreement, including:
> You must provide clear and complete information to users regarding Your collection, use and disclosure of user or device data, e.g., a description of Your use of user and device data in the Your Internal Use Application.
and
> Notwithstanding anything to the contrary in Section 3.3.9, You and Your Internal Use Application may not use the Network Extension Framework, or any data or information obtained through the Network Extension Framework, for any purpose other than providing networking capabilities in connection with Your Internal Use Application (e.g., not for using an end-user's Internet traffic to serve advertising or to otherwise build user profiles for advertising).
I don't see the definition of "Internal Use Application" as clearly prohibiting app usage by these research panels – paid contractors of FB/Google. And, the disclosures to panel members may have met the "clear and complete information" clause.
But the limits on the "Network Extension Framework" usage might be a violation. I suspect FB/Google were effectively building "user profiles for advertising" with this data... though perhaps they could make a case that these specific networking hooks were walled away to a separate, non-prohibited purpose.
> specifically excluded from Internal Use Applications are any programs or applications that may be used, distributed, or otherwise made available to other companies, contractors (except for contractors who are developing the Internal Use Application for You on a custom basis and therefore need to use or have access to such Application), distributors, vendors, resellers, endusers or members of the general public.
Even if you make the argument that the users of this app are paid contractors of FB/Google, they are not contractors who are "developing the Internal Use Application for You on a custom basis and therefore need to use or have access to such Application", so it still seems pretty clear cut.
The "specifically excluded from..." section you quote is preceded by "Except as otherwise expressly permitted herein".
And, other sections of the terms (just before that) expressly enable "a software program… for Your own business purposes… and solely for internal use by Your Employees or Permitted Users" – where, as noted, "Permitted Users" also was defined to include "contractors".
What makes them a contractor here? You seem pretty fixed on this point.
They're being paid for a product (their data). By what I'm gathering, I could define Netflix as my contractor for delivering my team streamed movies for $n per month... which isn't true unless a more specific relationship e.g. a c2c is put in place.
A person who enters an agreement to provide something of value (here, data) for something else of value (here, a small monthly payment, perhaps as gift cards) has entered a contract, and is a contractor.
(Yes, when Netflix agrees to provide you with something in return for your payment, you've entered a contract with them, and they are your contractor. If somehow you were an US entity with 50+ netflix subscriptions for different offices, and thus paid them more than $600/year, you technically might be on the hook to file a 1099.)
> (Yes, when Netflix agrees to provide you with something in return for your payment, you've entered a contract with them, and they are your contractor. If somehow you were an US entity with 50+ netflix subscriptions for different offices, and thus paid them more than $600/year, you technically might be on the hook to file a 1099.)
Source. Now. Because I highly doubt this is accurate. I have never heard of someone having to file a 1099 for purchasing services, of any kind. Hell, half of everyone's time would be spent filing 1099s because as a society we spend far more than 600 dollars with any one company over the course of a year literally all the time.
I forgot that all payments to C-Corps or S-Corps are exempt from 1099 filings, so yes, as long as Netflix remains a C-Corp, there's no need to file. (That's a matter of 1099 tax law, though - it's still a contracted relationship. And so while it is uncommon to think of them as a 'contractor', that's what Netflix is, when delivering a service for payments under the terms of a contract.)
I don't know how many people have to keep explaining this to you. "Contractor" is a term of art that has specific meaning with regard to employment and contract law.
You're using what is known as a "cute trick".
Judges are rarely amused by "cute tricks". Like a Sovereign Citizen believer you can keep claiming to be correct all the way to a loss in court, followed by denied appeal after denied appeal.
Separate from tax and employment regulation, ‘contractor’ is also plain language meaning “someone under contract”. If these people weren’t paid what they were promised, they could sue for breach-of-contract.
There’s no trickery here: that’s the ordinary legal meaning, and it is those who insist on only the far narrower regulatory/tax ‘contractor’ category who are playing semantic tricks.
It doesn't matter how many people "explain" falsehoods, like the idea that minors can't enter contracts (even with parental permissiion), or that a person being paid by a company under the terms of a contract is not a 'contractor'. They're wrong despite their multitudes.
Compare this account from a reporter at VentureBeat – who also happens to be a member of the California State Bar – who makes similar points as I have, about how compensated panelists are “arguably limited purpose ‘contractors’ providing data solely for the developer’s research purposes “:
Not really disingenuous; from looking at his resume, I hadn't noticed his bar membership had expired. (And, it's interesting that his resume reports him as active through 2017.)
But still, a legal degree, one-time certification, and some legal practice are kind of relevant, compared to anonymous commenters who are just insisting by repetition "but that's not a 'contractor'!"
Is it your reasoned argument that an individual receiving payment for services rendered to a corporation, under the terms of a mutually-agreed contract, is not a "contractor" in the eyes of the law?
> Not really disingenuous; from looking at his resume, I hadn't noticed his bar membership had expired.
Ok, I'll remove you from the disingenuous. He stays though because he should definitely mention it on his CV.
> a legal degree, one-time certification, and some legal practice are kind of relevant
Yep, he's definitely probably got more standing than anonymous commenters. But that's a low bar. He didn't practice contract law (it was transactional IP) and it was 14 years ago - it's an almost certainty he isn't au fait with current contract or employment law.
> Is it your reasoned argument
I don't have one knowing nothing about US contract or employment law. My layperson viewpoint is that it's quite clear they weren't Facebook contractors in the terms of the Apple agreement.
"Quite clear" is not an argument, it's an empty assertion.
IANAL, but I know the rough outlines of US contract and employment law as a frequent party to contracts, occasionally to disputes, and as a US person who has both contracted others and been a contract worker.
If you have a contract (which doesn't even have to be written), you're a contractor. Full stop. And, an agreement to provide payment in return for performing certain actions (like installing an app, leaving it running, answering questionnaires, maintaining confidentiality, etc) is a contract, even if it's a clickthrough agreement. Ergo, compensated research panelists are 'contractors' in the eyes of the law.
Yes, and I explicitly said I didn't have an argument but only my "layperson viewpoint".
> IANAL, but I know the rough outlines of US contract
Great. I don't care. Argue with other people about that. All I wanted to do was correct the perception that the journalist was a member of the bar and had some kind of legal standing.
There's a lot more in the program agreement I didn't include. These are just a few of the highlights I happened to notice.
> ...though perhaps they could make a case that these specific networking hooks were walled away to a separate, non-prohibited purpose.
They could not. The primary purpose of the Facebook and Google research apps was not to provide a VPN service; as such, using VPN services was a violation of the program terms. The use cases mentioned -- "to serve advertising or to otherwise build user profiles for advertising" -- are examples of prohibited use cases, not the full extent of the prohibitions.
The terms are very clear. Apple wants to control distribution of apps, the enterprise program is only supposed to be for employees or for end users using under the direct personal supervision of an employee as part of an in office test. The conditions are clearly defined.
They could, but that would be even dumber than the stupid crap they've already pulled. "Oh, you're a contractor, but we don't have a 1099 on you, oh and you're too young to work in your state"
Ah yes, but at what point does paying someone for work make them an employee?
Given that the users of the app in question were being paid by Google, one could argue they are employed... or at least are contractors.
On the other hand, given the users did not have the rights generally associated with being an employee or a contractor... and they were not even getting minimum wage...
But at that point IANAL and courts would need to decide
Google or FB isn't going to touch that with a 10 foot pole, and no there is no need for courts to decide, they don't want these users considered employees or contractors in any way. Also monetary compensation is very common in some research industries without said people being contractors or employees. Simply put Google and FB F*up big time in violating the TOS.
On the Apple Developer Enterprise Program webpage [1], the first big feature (of four) is "Deploy In-house Apps" -- "within your organization", "to your employees' devices".
I'm not sure how it could be much clearer that this is not intended to be used to distribute apps to customers.
But the people using these research apps are not, in their role as app-users, "customers". They're contractors, being paid for a service rendered. And other provisos of the agreement specifically define "Permitted Users" to include "contractors".
I'm fairly sure that neither Google nor Facebook actually want to consider them contractors, as that would likely mean that Apple ToS isn't the only thing they broke.
