Is the “Tesla Clause” a Good Idea?

Todays’ news is filled with discussion and analysis of Elon Musk’s aggressive response to the negative review of the Model S sedan in the New York Times.

• Stalled Out on Tesla’s Electric Highway (New York Times, 2/8/2013)
• A Most Peculiar Test Drive (Tesla Blog, 02/14/2013)

What makes Tesla’s response so ground breaking is that it involves releasing data, and lots of it.  There is some debate about the efficacy of Tesla’s response, and even more interest in the level of data collection that Tesla employs.

However, what I find most fascinating is the position Tesla is taking, in general, around data privacy for it’s users.

When is it OK to share user data?

Most modern websites and social networks have clear, articulated terms around the privacy protection they provide their users.  In general, these are encoded in both the user agreement that customers accept when they join the site, and the privacy policy that is provided for the site.

Tesla has, to my knowledge, staked out a new and interesting position around user data privacy:

After a negative experience several years ago with Top Gear, a popular automotive show, where they pretended that our car ran out of energy and had to be pushed back to the garage, we always carefully data log media drives.

The Tesla Privacy Policy has this to say about information sharing:

…we may share such information in any of the following circumstances:

* We have your consent.

* We provide such information to trusted businesses or persons for the sole purpose of processing personally identifying information on our behalf. When this is done, it is subject to agreements that oblige those parties to process such information only on our instructions and in compliance with this Privacy Policy and appropriate confidentiality and security measures.

* We conclude that we are required by law or have a good faith belief that access, preservation or disclosure of such information is reasonably necessary to protect the rights, property or safety of Tesla Motors, its users or the public.

So the question to be asked here, is which term is being used to justify the sharing of the journalist’s driving data?  I’m not a lawyer, but my guess is that Tesla would argue the third term covers this as necessary to protect Tesla Motors.

The Tesla Clause

Typically, the more specific and transparent a privacy policy is, the better.  Elon Musk is on the record as stating:

“While the vast majority of journalists are honest, some believe the facts shouldn’t get in the way of a salacious story.”

So the next question is, should web services reserve this right more generally?  Should it be explicit that the company reserves the right to reveal user data if deemed necessary to directly refute claims published publicly about the user’s experience with the product?

Will other web services implement the equivalent of a “Tesla Clause” in their privacy policies?

Keep Journalists Honest, Dampen Critique, or both?

If justified, this would dramatically increase the risk that journalists would take when publishing a product review of a web service.  For example:

• How aggressive would you be reviewing Google vs. Bing if you knew either company could reveal how your past browsing history affected your results?
• Would you critique Facebook’s new photo features aggressively if there was a risk that your photos might be included in a public response?
• Is it fair game to respond to a review criticizing the battery life of the iPhone 4 by publishing the the specific apps and services that journalist had running?

Alternatively, the “Tesla Clause” could prove extremely valuable:

• Forces journalists to more thoughtfully consider how their own usage patterns affected their results, and report that openly and honestly when applicable.
• Prevent journalists from cherry picking data and screenshots to support a pre-determined conclusion (or more likely, headline).
• Sets a marginally higher bar for web services to justify their rebuttals to negative product reviews.