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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]

#21

Post by handoflixue »

dataflow wrote: post #4

Fundamentally, 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 eac…

>> You'd think a case hinging on a crucial email being sent into spam would at least mention that fact more than once?!

> Broad did not locate the Oct. 2023 Notice until January 2024, when she affirmatively searched for the email and found it in her spam folder.

I think it's rather relevant that she affirmatively searched for and found the email?

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#22

Post by EarthAmbassador »

hsbauauvhabzb wrote: post #16

The email account I cannot access because google decided to ask me for a captcha for which I have no knowledge of, and the don’t have a human help desk that I can contact to prove ownership by providing ID documents? Got it.

Exactly.

I don't understand how a community such as this, as connected as it is, can't back channel a message to Google brass to do something about these lockouts, which occur frequently and are unnecessary. There is no way Google doesn't know about them.

Gmail is an essential piece of pervasive personal infrastructure, upon which hundreds of millions of people rely. People are losing irreplaceable data for lack of care on the part of Google. The cost of providing a way to prove identity while maintaining security ought to be part of the cost of doing business for Google as it provides Gmail.

Surely there are some Google employees lurking who can chime in on this frustrating neglect.

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#24

Post by bradley13 »

IMHO the problem is allowing changes to terms and conditions for existing contracts. If I have a contract with a company, that contract was made under existing T&C. The company should not be able to change those conditions without my explicit permission. Denying me service if I disagree should not be a valid option.

I get this periodically on our overly-computerized car: Here are new T&C, click yes to agree. You can make the screen go away temporarily, but there is no options to say "no, I disagree".

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#25

Post by handoflixue »

chrismorgan wrote: post #20

> In October 2023, Tile sent to all accountholders […] an email with the heading “Updated Terms of Service and Privacy Policy” […] to the email address provided by accountholders during registration, […] “[i]f you continue to use any of [Life360 and Tile’s] apps, or access our websites (other than to read the new terms) on or after November 26, 2023, you are agreeing to the [Oct. 2023 Terms].” > Broad did not locate…

The argument seems to be that for Broad, there was clear receipt of the email, even if it was delayed by being in the spam folder - we know she found it eventually.

Doe is a bit more interesting, since she re-downloaded the app, and they're saying that in-and-of-itself is sufficiently clear intent/consent to the current Terms of Service

("Doe unambiguously manifested assent to the Oct. 2023 Terms by downloading the Tile App in March 2024 and using the Scan and Secure feature in attempting to locate her alleged stalker’s Tile Tracker.")

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#27

Post by nozzlegear »

michaelteter wrote: post #10

US 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.

It's just an appellate court ruling, not the summary execution of Bernie's last faithful warrior. It can't even set precedent since the opinions are unpublished.

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#28

Post by jmward01 »

Hm. It seems that use actually goes two ways. They continue to use my information even when I leave their platform. Does this mean I can email info@google.com updated TOS, since I am a party to it I guess, and if they keep selling my info they accept it?

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#29

Post by handoflixue »

bradley13 wrote: post #24

IMHO the problem is allowing changes to terms and conditions for existing contracts. If I have a contract with a company, that contract was made under existing T&C. The company should not be able to change those conditions without my explicit permission. Denying me service if I disagree should not be a valid option. I get this periodically on our overly-computerized car: Here are new T&C, click yes to agree. You can…

If you decline the new contract, you're entirely welcome to continue on the old T&C.

Worth noting, the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke.

Also worth noting, the old T&C you agreed to probably included a clause about these sorts of updates, too.

So, right there, you've already explicitly agreed to a contract that can be terminated if you don't accept updates.

> The company should not be able to change those conditions without my explicit permission.

The legal argument is that (a) you were explicitly notified of these changes, (b) your rights to use the service under the previous contract have been revoked, and (c) you're continuing to use the service.

So, either you're stealing their service, or you did in fact explicitly agree to the new contract - "“Parties traditionally manifest assent by written or spoken word, but they can also do so through conduct.” Berman, 30 F.4th at 855."

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#30

Post by tastybberries »

In summary, the Ninth Circuit applied California law to determine that users received sufficient notice. Are other states' laws on notice similar enough to California law for this ruling to be applied broadly? I understand that the order is unpublished so the ruling has little precedential value regardless but I wonder whether the three-factor test is used in other states.
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