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How to Amend Your App's Terms of Service for Federal Agencies

Brady Dale
Brady Dale / August 12, 2014

Unless you’ve gone out of your way, odds are, Federal agencies and their employees can’t even consider using your startup's service. Even if it’s free. Even if it would save some group of Federal workers loads of time. The reason is legal: your terms of service (TOS) just won’t fly with Federal law. That’s potentially a huge base of users that you’re missing out on, not to mention organizations that could give your startup much needed credibility if you could tell people that they were using it.

So what exactly do you need to amend in your TOS to let Federal agencies legally access your app? To learn, we spoke with representatives from three companies that recently joined a list of less than 75 companies with a federal-compatible TOS.

Steps to Amend Your TOS

Negotiated Terms of Service Agreements digital.gov screenshot

Your company will need a special TOS agreement just for Federal agencies. There are two ways to go about this, as spelled out on this page from the General Services Agency, the giant division of the government that tries to take care of much of the back-office work for the Federal agencies.

The two approaches are as follows:

  1. A special TOS posted on your website. When a user clicks on the TOS, they would see the one that applies to everyone else, with a link up top that said, “The terms for agencies in the US Federal Government can be found here,” which would lead to a slightly different document.
  2. An individually negotiated TOS between your company and each agency that would like to use your service.

“Best advice: amend your own terms of service,” Ben Balter, Government Evangelist at GitHub told us. He negotiated GitHub’s Federal TOS with the Government.

This method saves individually negotiating with agency upon agency. It’s a quicker route to being good with a broader array of officials. Agencies still have latitude to say that your TOS doesn’t fly if they want, but from the people we spoke to it sounds like once your amendments have been approved by the GSA, you’re probably going to be all right with more agencies than you knew existed.

Once you make your amendments to your TOS, send the first draft to the GSA to this email address: socialmediaapps@gsa.gov. They also want you to include some other information with that message: the name of your service, it’s basic description, a point of contact for questions and specific examples of how using it could benefit Federal agencies.

You may end up having some back and forth with attorneys at the GSA, but you’ll know you’re TOS is good to go when it makes this list, which already includes Facebook, Foursquare, Flickr and over 68 other companies.

For Github, it meant a nice boost in users.

“To date we're seeing just shy of 150 US Government organizations on GitHub, and about 5,000 US Government employees," Balter told us. "The rate of adoption expanded exponentially once the amended ToS was signed.”

What’s Wrong with Your Existing Terms of Service?

Amendment to Twilio Terms of Service Applicable to Government Users screenshot

So why is it no big deal for big companies, universities and celebrities to accept TOS while the Federal government is such a stickler? Aren’t these just boring pages of text that no one ever reads anyway?

The Federal Government of course has to be considerably more careful. Everything it does is under intense scrutiny, both from a political perspective as well as one of national security.

The truth is that to craft a Federal friendly TOS for your specific service, you’re probably going to need to bring in legal counsel. There’s no quick and easy guide to amending TOS out there. A lot of it depends on what your service does, after all. There may be aspects of services that raise red flags for the government, particularly around how deeply it reaches into the government’s IT architecture or how much the public is likely to come to rely on it.

A few points that tend to stand out, however:

  • Entity - Most terms of service tend to construct themselves as between the person who signs up and the company that provides it. The government wants it to be clear that the agreement with the government isn’t with one of its employees. It's with the government itself.
  • Indemnification and Dispute Resolution - If a problem arises between the government and the service provider over the way the service is used by the agency, it needs to go to the courts. The service provider does not get to wash their hands of it. Similarly, many TOS agreements require disputes to be dealt with via arbitration. To be Federal friendly, that has to be waived for the government so it can go to court.
  • Federal Information Security Management Act - Government data is very sensitive, naturally, and a special law has been passed to keep that information secure. A TOS needs to acknowledge that obligation to keep the data safe.
  • Endorsement - Services can’t make it look like the government has given them a special endorsement as a superior service. If agencies are even listed as customer somewhere in the services materials or on its site, it needs to be done in a way that every customer appears to be equal.

What if It’s Not Free?

If you look through the aforementioned page on the GSA's website, you’ll see frequent reference to free services. That’s not to say that services with a paid version can’t possibly work with the Federal government. Another company we spoke with, Twilio, is a freemium service provider. Twilio makes it easy for your website to interact with every kind of telecom, using cloud-based software. With the service, you can run call centers, text, voicemail and more without ever having to think about whether or not your users are on Verizon, AT&T or Sprint.

Twilio’s amended Terms of Service for government workers addresses the issue of cost. It acknowledges the free levels of its service and then commits to contacting any Federal agency before its level of service accrues costs.

This kind of conversation would be addressed over the course of the negotiation process. That said, Brett Michaels of Apigee, who managed the TOS amendment for the company, told us that adoption of their service has been limited and none of it has resulted in conversion of any agencies to paying customers. He also said that his company didn’t find it had to do any negotiation after sending in its draft amended TOS.

Remember, it's a Government Contract

One other provision in the Twilio TOS amendment that may be of interest to startup founders is “G: Access and use.” Twilio had to agree to waive the right to terminate service at any minute, for whatever reason, because its use could generate considerable citizen engagement, and once the people are using a service to interact with their government, they can’t just be cut off. It’s one way to illustrate that while there may be significant opportunities in opening your service up to government agencies, but it's also going to become a user like no other.

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