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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]

#81

Post by kotaKat »

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.

The jackasses at Ring provide a clickwrap forced EULA consent in their app update changelogs.

https://play.google.com/store/apps/details?id=com.ringapp

They slip "By using this app, you agree to Ring’s Terms of Service (ring.com/terms). You can find Ring’s privacy notice at ring.com/privacy-notice." into their app update changenotes for every update.

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

#82

Post by user3939382 »

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…

My Apple TV started doing this. New Terms, agree or “not now”. Ok how about never?

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

#83

Post by shevy-java »

How do they ensure that the email reaches the destination though?

I have had emails never delivered to me, not due to my own fault but the service provider filtering it away before I could do anything. It is also dangerous to assume "use implies consent". I am sure there are other ways to ensure terms of use to be changed; if it is a web-application then one could only resume using it if the services were accepted before.

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

#84

Post by stinkbeetle »

danlitt wrote: post #59

The entire notion of being allowed to enforce arbitrary terms of service is absurd. There are probably a handful of terms everyone agrees are reasonable (no attempted hacking, rate limits, do not break laws) and everything else should be unenforceable. Especially garbage like what you're allowed to do with the stuff you get from the service even while not using the service , or about setting up competing products. It…

> The entire notion of being allowed to enforce arbitrary terms of service is absurd. There are probably a handful of terms everyone agrees are reasonable (no attempted hacking, rate limits, do not break laws) and everything else should be unenforceable.

Why? Why should a government prohibit private parties from agreeing to anything other than those 3 things?

> Especially garbage like what you're allowed to do with the stuff you get from the service even while not using the service, or about setting up competing products. It's like McDonald's selling you a burger and telling you how to eat it.

It is vaguely like that, but but I'm not sure the analogy facilitates understanding of this subject. McDonalds shouldn't tell you how you can eat your burger, therefore... companies must not enforce any terms on their services aside from those things. Why?

I'm not saying any term should be enforceable. Contract law has a long history against that. I just wonder how and where you draw the line and what existing law is insufficient.

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

#85

Post by noirscape »

nickff wrote: post #31
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…

Unless the user’s e-mail was controlled by their counter-party, what folder the message ended up in seems to be irrelevant to me. The user is the one who selected the e-mail inbox service provider, and has some degree of control over message categorization.

That does sound like there's an exploitable element there isn't it?

Statistically speaking, most people use one of the biggest email providers, which use their own models to detect spam (or even quietly drop messages). If you're doing an unpopular TOS change, why not set the mail up to still be RFC compliant but in such a way where the mail isn't going to be allowed through by any of the providers. Then you can just claim the problem is userside.

For example, the Message-ID header is technically not required (SHOULD rather than MUST), but as a spam detection measure, Gmail just drops the message entirely for workspace domains: https://news.ycombinator.com/item?id=46989217

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

#86

Post by shevy-java »

victorbjorklund wrote: post #69
impossiblefork wrote: post #64

Earlier quoted context omitted.

Here in Sweden the thing that makes something a contract is that you can't change it-- that it has definite provisions that have been agreed and that both parties actually expect the other to hold up their part. The US breaking its contract law to treat non-contracts as contracts is one of the most insane things I've seen a legal system do to itself.

This is not true. It is 100% possible to write a contract in Sweden where one of the paragraphs says that you can change it in this and that way. And if we're talking about business to business contracts, it will probably in almost all cases be enforceable, even if you're writing that one party can just announce changes. In fact, I think most business to business contracts have some kind of clause specifying that it…

I am not sure that is correct. At the least it sounds to be a violation of EU laws if this were possible in Sweden; but, even aside from it, I do not think a contract can be changed willy-nilly without offering termination of the service in due time.

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

#87

Post by quietbritishjim »

thaumasiotes wrote: post #51
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…

> The court seems to be completely disregarding that it was misdelivered into spam. Spam categorization isn't a delivery issue. The delivery is the same whether you, upon taking delivery, toss the message into a bin labeled "spam" or one labeled "inbox".

I guess it's an instance of a more general principle: sending an email doesn't guarantee it gets to the user's inbox, never mind that it gets read.

Even if you are OK with the idea that a user can be presented updated TOS with no option to disagree (I don't, but put that aside for a moment), it should still require a mechanism that actually guarantees (or at least verifies) that the user has seen that the terms are updated. Email is not that. (An unskippable notice on login to a web service would be.)

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

#89

Post by Joker_vD »

Well, just one step more, and we'll have "TOS may be unilaterally updated by publishing the new terms on the firm's web site, it is entirely the user's duty to keep himself up to date, continued use implies unrevocable consent and giving up the right to re-negotiate" legal as well.

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

#90

Post by torben-friis »

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…

There is a strange phenomena where introducing tech makes people suddenly blind or numb to established rules.

Can you imagine buying a car in the seventies and a month later finding a technician under your parked car making adjustments to it? You’d kick them out and call the police. But put an internet connection in between and it’s ok.

Same goes for wiretapping (compare Nixon vs current state), unlicensed hotels and cabs being ok when booked by an app, and so on.

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