Google, GSA hit Web 2.0 minefield

Internet users have grown accustomed to seeking videos on YouTube, but the federal government is having a tougher time getting its content there.

The White House’s counsel had to issue a special waiver to allow YouTube to set persistent cookies on users’ computers so President Barack Obama could post his weekly video addresses there. The cookies are small data files that gather information about the users’ activities on the site, and rules normally forbid them on government sites. The YouTube feed is embedded on the WhiteHouse.gov Web site.

Now the clash of technological realities and government policies is hampering negotiations between the General Services Administration and YouTube. The negotiations center around altering the terms-of- use agreement to make it possible for federal agencies to freely use the site for posting videos.

Neither GSA nor YouTube responded to requests for comment on the specific issues in contention, but government lawyers are likely concerned about dispute resolution, said Gary Kibel, an attorney at the New York City law firm Davis and Gibert. YouTube’s terms of service stipulate that a state court in San Mateo County, Calif., would decide disputes, a condition likely to be unacceptable to the federal government, he said.

When a user clicks on the button to accept a site’s terms of service, “you’ve just entered into a contract,” Kibel said.

Government officials need to at least be aware of what they’ve agreed to, he added.

YouTube’s terms of service specify that once a video is on YouTube, all registered YouTube users can display the video embedded on their own Web sites. That means government content could end up displayed on objectionable Web sites. Although government content is usually freely available, it is technologically possible to display videos without allowing other sites to embed them. Videos on YouTube don’t have that protection under the standard terms.

Agencies should also consider nonlegal matters, said Thomas Folsom, a law professor at Regent University.

“To make it look like the government is favoring one commercial provider over others might lead some agencies to put a disclaimer on their material saying they don’t endorse, back or sponsor YouTube,” Folsom said. “It might be appropriate for an agency to double or triple post the same material on more than one such site.”