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The ‘Terms and Conditions’ Reckoning Is Coming

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Re: The ‘Terms and Conditions’ Reckoning Is Coming

#181
post #160

Yes. There are two separate issues here, I think. 1. When corporations "negotiate" with consumers, this is an abuse of the legal system. Contract law was conceived for situations where both parties have at least some amount of negotiating power. Handing a consumer some long contract written by a set of well-paid lawyers, and asking them to sign it or walk away from any benefit from a product, is not the kind of contr…

Standard form contracts have long been given greater scrutiny by the legal system: https://en.wikipedia.org/wiki/Standard_form_contract

Re: The ‘Terms and Conditions’ Reckoning Is Coming

#182
post #180

I think the legalize issue is a bit exaggerated. Yes, many (too many) sites and companies have a lot of legalize in their terms...but there are also many that do not. Nevertheless, as far as I've seen people aren't any more likely to read the latter, or any more likely to understand them if they do read them. I think there are two main factors that make people not read these things. First, as Joel Spolsky noted in hi…

I mean, you could rewrite the same contract in plain english ("heads we win, tails you lose") and it wouldn't make it any less exploitative. The legalese is not the real issue there.

Re: The ‘Terms and Conditions’ Reckoning Is Coming

#183

Earlier quoted context omitted.

> Do you think allowing programs to be specified in plain English is a good idea? The difference is that one is expected to consent and be beholden to something they could not reasonably understand without paying a large amount of money to a specialist. That I write my code in brainfuck is of no consequence to someone, unless that brainfuck is potentially going to incarcerate them.

> That I write my code in brainfuck is of no consequence to someone, unless that brainfuck is potentially going to incarcerate them. If you write software to control medical equipment in Brainfuck, it's potentially of consequence to a great many people. Same for autonomous driving routines. Trying to make things clearer is a good cause. Expecting that everything can be made clear enough for the average person is a fo…

[deleted]

Re: The ‘Terms and Conditions’ Reckoning Is Coming

#184
post #72

True of legalese in contracts, but also Law in general has multiplied like Gremlins. Hammurabi's code of laws, was written in common language, and was brief enough every subject could understand them. It makes no sense that we should be subject to a volume of law that we could never even read, let alone understand. Musk is correct in insisting that laws should expire, and it should be easier to remove a law than add…

Do you think allowing programs to be specified in plain English is a good idea? We have "legalese" for the same reason we have programming languages. Terms have specific, sometimes slightly different or more narrow meanings to promote better understanding of intent in languages meant to specify a set of rules. Specifying laws in "plain English" makes about as much sense to me as programming in English. You'll quickly…

The issue is that the law is something everyone must live by or face dire consequences. Given this, is it better to have programming for law that is specific but which only few can use (and normally to their advantage), or to have a more ambiguous medium that is accessible to the majority?

The ideal, a specific language everyone is proficient in, is best, but it isn't possible.

Re: The ‘Terms and Conditions’ Reckoning Is Coming

#185

Earlier quoted context omitted.

Wheat grown by a farmer for his own consumption, not bought or sold, not carried across state lines, can be regulated by Congress as it affects "commerce ...among the several States." See Wickard v. Filburn.

If you don't want to look it up but still want to understand it, the gist is that by growing your own wheat, you're not buying wheat from farmers, which lowers the price of wheat that may be grown by out-of-state farmers. By growing your own wheat, you're impacting inter-state commerce. At least that's the logic of the court.

This is the sort of loophole that allows it to apply to everything. By going on a date with person A, you reduce their willingness to spend money on certain products associated with people who don't go on dates, and increase their willingness to spend money on certain products associated with going on dates. Therefore, the federal government can make laws about who you date, and dating becomes considered a commercial venture (so freedom of association wouldn't apply, same reason freedom of association doesn't allow people to bypass minimum wage laws).

This is stretching the law beyond any reasonable interpretation, done so by the same government who gains a lot of power by doing so.

Re: The ‘Terms and Conditions’ Reckoning Is Coming

#186

Earlier quoted context omitted.

> When you upload pictures, you have to give us the right to make as many copies of the pictures as we want, modify them however we'd like, and send those copies to whoever we want anywhere in the world. But isn't it precisely what the legalese means? I mean, unless otherwise restrict by some law other than the copyright laws, Imgur can use those images for anything. The statement does not limits the use to "reasonab…

It's precisely what the legalese means, and carries connotations which are absolutely nothing like what Imgur intends. They claim unlimited rights not because they don't want to be bothered to restrict them, but because the structure of the Internet makes it impossible to write a simple description of when copies will be made. They could try going into detail: > We can send copies of your image to anyone who, followi…

>They claim unlimited rights not...

The reason doesn't matter if they are claiming those rights. So the given layman terms version is still true.

Re: The ‘Terms and Conditions’ Reckoning Is Coming

#187

Earlier quoted context omitted.

> Certainly there are improvements but you will never fit it all into one short book that a layperson could read. However, the law could still certainly be shortened and simplified. The GDPR is written in plain English.

Yet GDPR is so vague that most companies I talk to about it have each taken very different things from it. "Except as required for security purposes" is a big exception.

It's not as big exception taking into account that the requirements are not about pieces of data that you can get and store, but about particular uses of this data.

If you previously had some private data in your core databases that you used for all kinds of things, finding an exception that allows you to store this data for security purposes doesn't allow you to continue business as usual - it won't permit you to use it for marketing purposes, for example, just as an exception that allows you to require and store some data that's needed to execute the service won't permit you to sell that data to third parties as was common practice earlier - for that you'll need to (try to, likely unsuccessfully) obtain the user's consent.

Re: The ‘Terms and Conditions’ Reckoning Is Coming

#188

Earlier quoted context omitted.

Wheat grown by a farmer for his own consumption, not bought or sold, not carried across state lines, can be regulated by Congress as it affects "commerce ...among the several States." See Wickard v. Filburn.

If you don't want to look it up but still want to understand it, the gist is that by growing your own wheat, you're not buying wheat from farmers, which lowers the price of wheat that may be grown by out-of-state farmers. By growing your own wheat, you're impacting inter-state commerce. At least that's the logic of the court.

Seems like a poor conclusion.

If a started a business that picks peoples noses among multiple states, would Congress be able to regulate nose-picking by individuals on their own private property?

Re: The ‘Terms and Conditions’ Reckoning Is Coming

#189
The basic law relating to online terms and conditions has been stable for some years now and should remain so. It certainly is not headed for a "reckoning."

When private parties transact business in a free society, the law of contracts steps in to provide rules enabling them to do so in a well-defined and orderly manner. Contract law has some fundamental principles that anchor it and, beyond those, has a vast number of intricacies that potentially can come into play in individual circumstances. Concerning fundamentals, for most executory contracts to be enforceable, you need to have mutual consent and some exchange of consideration. That is, a meeting of the minds on material terms and an exchange of value. When these elements exist, the law considers a contract to be binding and imposes legal consequences for any breach or failure to perform. In order to avoid chaos, it further stipulates that the core principle (meeting of the minds) is not based on purely subjective factors but on what a reasonable person would believe in the circumstances. This objective standard enables commercial transactions to proceed without endless second-guessing about what the parties might have desired or meant when they contracted in any given transaction. Because of this, while it can easily become messy in any given case, most contract situations can be legally evaluated with a fair degree of certainty and parties can plan their affairs and determine their rights accordingly.

The above describes what might be called a very high-level summary the central tenets of the common law of contracts in the Anglo-Saxon legal tradition. If someone reasonably can be said to have consented to a given transaction involving some exchange of value, legal rules applied to govern how that exchange took place and what would happen if some breached his or her agreement.

When it comes to terms and conditions in online commerce, the law generally applies this body of contract law but does so via what might be called the fiction of mutual consent between the contracting parties. It is well known that the vast majority of persons do not bother to read such terms and conditions when they click on the "Agree" button. Nonetheless, the terms and conditions are legally binding upon such persons. Why? Because it is assumed that the person read and understood them in clicking. And that assumption is what makes it a fiction. In effect, the law says, "we will pretend that the person read through the terms and knowingly agreed to them." Given that this legal fiction effectively substitutes for a true consent, the law can proceed along its merry way and treat this contract as it would any other, i.e., treat it as binding and enforceable upon the "contracting" party. In effect, to preserve orderly rules of contract in such transactions, the law effectively says that the terms and conditions are legally binding if they are such that a reasonable person who had taken the time to read through them would have understood them to have a certain meaning (that is, the "reasonable person" meaning that the law will enforce upon the person doing the clicking).

This fundamental approach to terms and conditions in online transactions has not changed one bit in some years and is under no risk of being changed. Because, without it, you could not practically have any semblance of legal orderliness in online transactions.

Moreover, while it is often said that dense legalese is undesirable in such situations, courts generally enforce such legalese without hesitation, even if a complaining consumer says until he is blue in the face that it could have been put in easier-to-understand plain English. There is no legal rule that requires contractual language to be put into plain English and there are some types of contracts where an attempt to express the legal requirements in that way would cause a loss of precision or lead to other problems. Whether something is expressed in plain English or not, then, typically does not affect its enforceability in online transactions.

Again, nothing pervasive is happening in the law affecting online transactions so as to require use of plain English to make terms and conditions enforceable.

None of this is to say that there are no protections in existing law when people try to use weasel language to defraud others or use language that is so imprecise as to mislead consumers or use language that is so ill-defined or vague as to leave important matters uncertain to the other contracting party. In all such cases, existing common law has remedies of varying kinds to say that such contracts are unenforceable or that some remedy applies in favor or an aggrieved or defrauded consumer. But, in practice, these are edge cases, the ones that wind up in dispute or in court. The vast bulk (99%+) of the commerce that occurs is covered by the general contract rules and proceeds in an orderly way because the rules are known and predictable.

Against this background of the common law contract rules, it is possible for persons to want to modify the existing rules on grounds that such rules are unfair to the consumer and or are not based on true consent by that consumer or for some other public policy ground.

This is where special public-policy-driven enactments come in to modify the standard contract rules. Legislatures can adopt special laws dictating outer bounds to how businesses can use the private data of consumers as such data may entrusted to them. In this area, perhaps, a form of "reckoning" may occur if it is determined that companies such as Facebook ought not to be able to sell or misuse private data to the detriment of their users. This is an important development and serious changes may be afoot affecting such special areas. But this does not affect the general principles by which online contracting occurs.

There could also be proposals mandating that plain English be used in terms and conditions or requiring this or that form of mandated disclosure to help ensure greater consumer understanding but all such proposals come with decided trade-offs that typically make them impractical. The reason for the fiction of legal consent in the current system is the supreme utility that comes from allowing millions of online transactions to occur every day without incident based on orderly rules known to all. You can change all that through legislative enactments saying that public policy requires a different system that is more fair to consumers. But at what price? That is why the current system is and remains solidly in place.

To underscore the importance of utility, I have been legally trained and have years of experience such that I could easily read through and comprehend the legalese that is found in most online terms and conditions. Yet, with rare exceptions, I am just like everybody else and will click "Accept" or "Agree" without reading anything and without a second thought. As a lawyer, I can't say that I am proud of this but I can say this is human nature. The issue is not primarily that legalese or plain English will make a difference in understandability. It is that we take the path of least resistance when not much is at stake and we don't want to be bothered. Try as we might, no law will solve that problem.

Re: The ‘Terms and Conditions’ Reckoning Is Coming

#190

Earlier quoted context omitted.

Some laws, like that one, should be enacted with an expiration date. Some laws even are - e.g. a lot of the post-9/11 surveillance state laws need periodic reauthorization. Plenty of other taxes are enacted as temporary, too, despite how routinely they're extended. But not all laws should expire. Having, say, the crime of murder expire would be quite unhelpful.

> But not all laws should expire. Having, say, the crime of murder expire would be quite unhelpful. I'm pretty sure that laws like that one would be renewed before expiration anyway -- and the current context would allow re-evaluation of penalty as well, which might be something useful to reconsider every couple of decades.

It would be an excuse for political and legislative brinkmanship on a schedule. They can always make changes to the details without a clock adding artificial urgency. It's clear it's the kind of law we want on the books, and to have a penalty on the books, indefinitely. Unlike, say, the chicken tax.
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