US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]
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US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]
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Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]
#2US law fails to recognize real world practice. It's bad engineering at its finest.
Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]
#3[deleted]
Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]
#4Fundamentally, the court seems to be treating this identically to a scenario where the user was ignorant and failed to read their inbox. The court seems to be completely disregarding that it was misdelivered into spam. The word "spam" doesn't even appear more than twice in the ruling (one of which is in an irrelevant footnote)!
Why the heck is the court completely oblivious to that fact when weighing the facts on each side? You'd think a case hinging on a crucial email being sent into spam would at least mention that fact more than once? (!) The court certainly seems to take into account common practices in every other aspect of the case except that most crucial one... why?! No explanation whatsoever? Would this really survive on a hypothetical appeal?
> As Tile users, each Appellee provided an email address during account registration, and should have expected to receive relevant updates there while the account was active.
Well yes, they did, but:
> Because “there is very little empirical evidence regarding” Internet users’ expectations, the focus of this inquiry is “on the providers, which have complete control over the design of their [apps and] websites and can choose from myriad ways of presenting contractual terms to consumers online.”
...Tile should've expected that its email might go into spam, right? Shouldn't the court at least mention this, even if it doesn't lend it any weight?
> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” and we do not hold that notice by mass email establishes inquiry notice in every case.
At least they say their ruling doesn't generalize...
Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]
#5By both sides?
Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]
#6By both sides?
worth a shot
Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]
#7US law fails to recognize real world practice. It's bad engineering at its finest.
The analysis isn't great. In particular, they say "this is a three-factor test, two of the factors are in favor, one is against, two is more than one, so Tile is fine". Normally you'd expect some kind of analysis of how much weight each factor contributes.
That said, they do also say this:
> we determine that Appellees received inquiry notice of the Oct. 2023 Terms. Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” Godun v. JustAnswer LLC, 135 F.4th 699, 710 (9th Cir. 2025), and we do not hold that notice by mass email establishes inquiry notice in every case.
So the HN headline is misleading at best.
(They also note that, while they should consider how normal internet users behave, they can't do this because "there is very little empirical evidence regarding" the question. So they substitute a discussion of how reasonable they find Tile's actions in the abstract.)
Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]
#8[deleted]
Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]
#9US law fails to recognize real world practice. It's bad engineering at its finest.
The analysis isn't great. In particular, they say "this is a three-factor test, two of the factors are in favor, one is against, two is more than one, so Tile is fine". Normally you'd expect some kind of analysis of how much weight each factor contributes. That said, they do also say this: > we determine that Appellees received inquiry notice of the Oct. 2023 Terms. Evaluating whether inquiry notice has been establis…
Naturally this does not apply in every case. But the comment is fair, I updated headline to be clearer.
Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]
#10US capitalism (aka, powerful financial entities driving policy).
To be fair, not all people in business or government prioritize "the all-mighty dollar" over everything else. Unfortunately, those who don't usually have principles; those who do often are willing to break rules. This is not an even match.