Privacy Digest reports that an update to AOL’s Instant Messenger Terms of Service includes an explicit waiver of privacy. From the subsection “Content You Post” (emphasis added):
Although you or the owner of the Content retain ownership of all right, title and interest in Content that you post to any AIM Product, AOL owns all right, title and interest in any compilation, collective work or other derivative work created by AOL using or incorporating this Content. In addition, by posting Content on an AIM Product, you grant AOL, its parent, affiliates, subsidiaries, assigns, agents and licensees the irrevocable, perpetual, worldwide right to reproduce, display, perform, distribute, adapt and promote this Content in any medium. You waive any right to privacy. You waive any right to inspect or approve uses of the Content or to be compensated for any such uses.
UPDATE: AOL has responded to this issue, stating that not only has this particular TOS been in place for over a year, but that the terms of service do not imply that the company has the right to use private IM communications, and the section quoted in the original Slashdot article applies only to posts in public forums — a common provision in most online publishers’ terms of service. However, it matters not when this particular TOS when into effect or whether AOL is currently actively monitoring communications – it still has the hidden clause “You waive any right to privacy.” How might a court interpret this clause if a disupute arises? How aware are users of its existence? Why should a TOS require that I give up my right to privacy?