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Why Do We Blindly Sign Terms Of Service Agreements?
September 2, 2014 9:30 PM   Subscribe

NPR interviews Omri Ben Shahar, teacher of contract law at the University of Chicago and co-author of the book, "More Than You Wanted To Know: The Failure Of Mandated Disclosure." His advice: "You shouldn't bother reading those terms and conditions. Don't even try. You don't have enough time in the year. Don't feel guilty about it. What you should do is follow some of these watchdog and watch groups that circulate information about particularly annoying new practices."
posted by paleyellowwithorange (40 comments total) 39 users marked this as a favorite

 
My favorite was a bike share machine agreement. 72 pages, displayed on a unreadable 8 line monochrome LCD, just to borrow a bike. Ridiculous.
posted by miyabo at 9:41 PM on September 2 [9 favorites]


I read somewhere about a developer who buried some text deep near the bottom of his apps license agreement. It said something like "we know nobody reads this far in the license. But you did. So call Joe at this phone number (XXX) XXX-XXXX, tell him you saw this and if you're the first person to call, we'll give you $1000 cash."

The money was never claimed.
posted by charlie don't surf at 10:10 PM on September 2 [10 favorites]


To answer the lede, because the idea that your average citizen is considered an equal party to a multimillion or multibillion company is laughable. Want a product? Too bad unless you sign away all your rights. Don't like it? Well the competition has the same terms so much for competition.
posted by Carillon at 10:12 PM on September 2 [35 favorites]


To answer the lede

Heh. They managed to foil proponents of Betteridge's law of headlines and generate proper discussion!
posted by paleyellowwithorange at 10:24 PM on September 2 [2 favorites]


What lets this scam work is an insane SCOTUS interpretation of the Federal Arbitration Act and binding arbitration clauses in every single agreement a consumer is likely to ever sign. You can't even access the courts to plead your case that the agreement was ridiculous. And even if you arbitrate and win, your victory is private and is of no use to anyone who has the same problem.
posted by 1adam12 at 10:29 PM on September 2 [30 favorites]




I read somewhere about a developer who buried some text deep near the bottom of his apps license agreement.

Did you see the one about the harvesting of souls?
posted by pompomtom at 11:11 PM on September 2 [4 favorites]


When we were opening a bank account we got handed a piece of paper with terms and conditions to look at. My husband turned it over and read the second side too. The bank teller said that no one in her experience had ever turned that piece of paper over before. Ever.

Similarly, our mortgage broker hated us a lot. He'd set up a 30 minute appointment, and hand over a stack of documents with hundreds of pages of small print, and ask us to sign. And then sit there while we actually read all the pages, and asked questions about the bits we didn't understand.

But terms and agreements for online services? Nah, I don't bother.* I read "By clicking here you agree to..." and think "Make me".

______
* I used to, but it turns out that a lot of the time it says, "click here to read our terms of service" and the link goes to a broken page.
posted by lollusc at 11:28 PM on September 2 [5 favorites]


I read the Newegg terms of service when I bought a laptop a couple years back. I'm pleased to announce that I knowingly agreed to binding arbitrage for disputes.
posted by Zalzidrax at 11:38 PM on September 2 [2 favorites]


Carillon: "To answer the lede, because the idea that your average citizen is considered an equal party to a multimillion or multibillion company is laughable."

Maybe that's why you don't read them. My reason is much more prosaic: Because they're really long!
posted by Bugbread at 12:48 AM on September 3 [2 favorites]


Back in high school after doing a project on them I read all my EULAs for a couple years. As far as I can tell, I didn't sign away my soul, but I can't sue anyone anymore, and all legal actions I get invovled in will be somewhere in the US (Usually Washinton, DC), except for one thing that I did a double take on when I saw Ottawa.
posted by Canageek at 12:54 AM on September 3 [1 favorite]


Has any American alive today ever successfully done ANY business with a company online WITHOUT signing away all their rights through a Terms Of Service Agreement?

There have been stories of companies who took these to an absurd/abusive/illegal extreme, like the now-disappeared vendor who "charged customers $250 for even threatening to publicly complain about a purchase or file a chargeback request with their credit card issuers."
posted by oneswellfoop at 1:09 AM on September 3


Terms of Service; Didn't Read is a pretty nifty site.
posted by el io at 1:47 AM on September 3 [25 favorites]


What lets this scam work is an insane SCOTUS interpretation of the Federal Arbitration Act and binding arbitration clauses in every single agreement a consumer is likely to ever sign.

Sanity of the court notwithstanding, surely this would be the point where a sane legislature enacts consumer protection provisions similar to most of Europe's.
posted by delegeferenda at 1:53 AM on September 3 [8 favorites]


Terms of Service; Didn't Read is a pretty nifty site.

I used to use EULAlyzer, but it's been a few years. Is there any kind of consensus about which of these kinds of tools is the best?
posted by paleyellowwithorange at 1:56 AM on September 3 [1 favorite]


paleyellowwithorange: "His advice: "You shouldn't bother reading those terms and conditions. Don't even try. You don't have enough time in the year. Don't feel guilty about it. What you should do is follow some of these watchdog and watch groups that circulate information about particularly annoying new practices.""

Well, I am glad to know that my approach to this issue is confirmed by science.
posted by chavenet at 2:59 AM on September 3


Oh, absolute not - don't even try. You don't have enough time in the year. Don't feel guilty about it. What you should do is follow some of these watchdog and watch groups that circulate information about particularly annoying new practices, like the one that you mentioned that Facebook is launching. And in the past, this kind of consumer pushback has led Facebook and Google and others to scale back their aggressive data harvesting practices. To the extent that something truly upsets a large number of consumers, we see that this - the mechanism forces businesses to respond to consumer demand.
The most important part of the pull-quote was elided... the message Ben Shahar is trying to sell is that the market is solving this problem for us: don't bother with the fact that your right to sue to redress grievances has been abrogated... big corporations are controlled by consumer demand so it will all work out in the end.

People like Ben Shahar have absolute contempt for anything that can't be made into a market relationship: a buyer and a seller, even the law itself. That's why they needed to invent a whole new academic discipline: Law and Economics. But because people can't be bothered to read and comprehend what they are saying...
posted by ennui.bz at 4:51 AM on September 3 [13 favorites]


I used to read some of these but stopped after noticing that most of them have a clause saying that they can unilaterally change the terms at any time without notice other than updating a web page somewhere.

Fixing this would require members of congress moving against very large businesses so it doesn't seem likely to change but a ban on binding arbitration would go a long way towards taming the abuse.
posted by adamsc at 4:54 AM on September 3 [4 favorites]


Oh those halcyon days when we all thought we owned the software we bought and expected it to actually do the thing it was intended to.
posted by tommasz at 5:16 AM on September 3 [2 favorites]


Contract law: he who writes the contracts makes the law.
posted by one more dead town's last parade at 5:21 AM on September 3 [1 favorite]


A right to unilaterally modify typically renders a contract void (technically there's no contract at all)
posted by jpe at 5:43 AM on September 3 [1 favorite]


I always have my fingers crossed. Suck it corporate weasels.
posted by Splunge at 5:53 AM on September 3 [3 favorites]


I'm actually one of those weirdos who DOES read the fine print whenever I sign something. Not for the seventy page software licenses, but for little things, like when I recently had to sign a waiver to take an archery class. Everyone else is lining up to shoot and I'm still trying to figure out whether or not I can sue if somebody shoots me in the ass with an arrow.

The thing about these sort of "sign your rights away" things is that they're not all that easy to back up in court. Some rights are "inalienable." You can't sell yourself into slavery, for instance. A company can trick you into signing away your right to press charges, but it is unlikely to stand up in court in the event that something tragic (like getting shot in the ass with an arrow) were to occur. Not everyone has access to good legal representation, of course, but these things are mostly a silly example of how lawyers create work for themselves by encouraging an excessively litigious culture where even a humble archery range is afraid of being sued so they have to hire some goon in a suit to write up a legal disclaimer instead of just saying "Hey, you might get shot in the ass, despite our best efforts. Just FYI."

(I'm not a lawyer, just the child of one.)
posted by deathpanels at 6:03 AM on September 3 [8 favorites]


I used to read some of these but stopped after noticing that most of them have a clause saying that they can unilaterally change the terms at any time without notice other than updating a web page somewhere.

Courts have frowned on this practice, and have held the unilateral changes unenforceable. I write terms of service for my clients, and assuming the site involves registration of some kind I always make sure they say that the service provider will attempt to inform users of any material changes (i.e. not fixing typos or what have you) via email or some other direct method.

While I write them, I also typically don't read them. Or at least not the whole thing. I usually skip to the sections about intellectual property ownership and use, arbitration, and the like.

Also, I do recommend people read privacy policies. They're usually far shorter and more human-friendly, and contain important information about how the provider collects and uses (and potentially sells) your information. So sure, skim the TOS, but read the privacy policy carefully.
posted by schoolgirl report at 6:10 AM on September 3 [3 favorites]


What are you going to do, not agree?
posted by rmmcclay at 6:17 AM on September 3


I agree to disagree.
posted by Foosnark at 6:21 AM on September 3


charlie don't surf: "I read somewhere about a developer who buried some text deep near the bottom of his apps license agreement. It said something like "we know nobody reads this far in the license. But you did. So call Joe at this phone number (XXX) XXX-XXXX, tell him you saw this and if you're the first person to call, we'll give you $1000 cash."

The money was never claimed.
"

Seems to be a true story except that the money was actually claimed after five months and 3,000 sales.
posted by octothorpe at 6:26 AM on September 3 [7 favorites]


It involved a credit card agreement rather than a "Terms of Service" click, but here's one guy who beat the bastards at their own game.
posted by Paul Slade at 6:41 AM on September 3 [2 favorites]


Sanity of the court notwithstanding, surely this would be the point where a sane legislature enacts consumer protection provisions similar to most of Europe's.

The same legislature that is wholly owned by corporations? And takes its legislative agenda exclusively from corporate lobbiests?
posted by T.D. Strange at 6:50 AM on September 3 [1 favorite]


I'm actually one of those weirdos who DOES read the fine print whenever I sign something. Not for the seventy page software licenses, but for little things, like when I recently had to sign a waiver to take an archery class. Everyone else is lining up to shoot and I'm still trying to figure out whether or not I can sue if somebody shoots me in the ass with an arrow.

The thing about these sort of "sign your rights away" things is that they're not all that easy to back up in court.


Yeah, I always read those things really carefully and people gawk at me. My husband is a lawyer and signs without reading because, as a lawyer, he doesn't really believe any contracts are enforceable.
posted by Mrs. Pterodactyl at 7:03 AM on September 3 [3 favorites]


All of these Terms of Service/Terms of Use "Agreements" are like a landlord providing a mandated fire extinguisher by bolting it to the ceiling.
posted by entropone at 7:23 AM on September 3 [1 favorite]


The thing about these sort of "sign your rights away" things is that they're not all that easy to back up in court.

Thanks to binding arbitration, they don't have to be.
posted by dirigibleman at 7:55 AM on September 3 [1 favorite]


No, I don't think that a sane legislature is the same that y'all have, sadly.
posted by delegeferenda at 8:19 AM on September 3


This is part of a bigger problem - which is the systematic removal of mechanisms that might effect significant change in the United States.

Whether it's the entrenched two party system, the criminalization of demonstrations and other forms of protest, the takeover of a large majority of the mass media by a tiny number of owners, or, as in this case, the removal of your rights to litigation, it's the same result - we can't change things.

It seems like a bad idea to me. I feel it's like duct taping the top onto a kettle, plugging the spout, and then putting it on the stove. I am not the only one who has wondered if the militarization of the police is intended for the day when the kettle finally bursts.
posted by lupus_yonderboy at 9:00 AM on September 3


Let us not forget Cory Doctorow's email signature:

READ CAREFULLY. By reading this email, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies (“BOGUS AGREEMENTS”) that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.
posted by Splunge at 9:46 AM on September 3 [7 favorites]


My great uncle was in contract law. When I was six or seven years old, he took me aside during Christmas, grabbed me by both shoulders and slurred Don't ever sign anything you haven't read and don't understand. That was thirty-something years ago, and it really stuck with me.
posted by Sphinx at 10:18 AM on September 3 [2 favorites]


Just curious, how much opportunity is there to cross out terms you don't agree with? Obviously there's no way to do this with an online agreement, but I wonder if anyone's done this, like on mortgage paperwork or in walk-in cell phone contracts.

The one common exception I'm familiar with is house rental contracts, since there's often negotiation that goes on there.
posted by crapmatic at 11:40 AM on September 3


Obviously there's no way to do this with an online agreement, but I wonder if anyone's done this, like on mortgage paperwork or in walk-in cell phone contracts.

I did this recently on my apartment lease.

They were shocked that I read the lease in the first place, let alone that I insisted on crossing out sections that had blanks in them that they didn't want to fill in.

Hillariously, one of these was the paragraph that limited the number of occupants of my apartment. There was a fill in the blank there and I wanted them to fill it in. They said, "we don't use that," and I said, "OK, lets cross it out then." In the process we crossed out the whole paragraph, which also included the language that says you can only live in the apartment and not use it for running a business or practicing a trade, so I am now free to do those things from my fourth floor walkup, I suppose.

They were totally incompetent though, as the lease also included a clause that it constituted the "entire agreement" unless modified by agreements signed by both parties. They then presented me with a series of "riders" that only I signed and they didn't sign... which are therefore at least arguably not part of the agreement. So why bother?
posted by Jahaza at 1:14 PM on September 3


I've edited a few academic volumes, which involves sending out contracts on behalf of the publisher to each contributor, and then forwarding them back to the publisher when they are returned. From doing this I have learned that a large number of academics just cross out bits of publishing contracts they don't like. Generally the bits that say "you may not put a copy of this paper on your own website". Sometimes even the bit that says, "you assign copyright to X publisher". Only once did a publisher comment on the changes, and in that case it was to open negotiations about the bits that were changed, not to refuse them outright.
posted by lollusc at 6:21 PM on September 3 [1 favorite]


"I did this recently on my apartment lease.

They were shocked that I read the lease in the first place, let alone that I insisted on crossing out sections that had blanks in them that they didn't want to fill in.
"

I've done this with several leases, not least because I grew up in a college town and it was common practice to include unenforceable and prohibited clauses under the idea that most people would pay for "carpet reconditioning" and what have you because it was in the agreement.

That's one of those things that I haven't kept up with from Michigan — Michigan used to be really great for consumer rights, thanks to Gov. Bill Milliken and the Consumer Protection Act of 1976, which included banning:
"n) Causing a probability of confusion or of misunderstanding as to the legal rights, obligations, or remedies of a party to a transaction.

(o) Causing a probability of confusion or of misunderstanding as to the terms or conditions of credit if credit is extended in a transaction.

And for a while, this was pretty zealously enforced by the Republican governor and Attorney General, long with another law that governs labeling in grocery stores — if a Michigan grocery scanner mischarges you, you're entitled to $5 or 10 times the difference, whichever is less, and if they balk at it, you're entitled to $250. I remember being so pissed off the first time I got overcharged in California and the manager basically told me that they'd mail me the difference and wouldn't change the scanner or the marked price.

But Michigan landlords still regularly try to get away with crazy illegal clauses and on some level I'm glad I had to deal with it, because it's made me entirely ruthless about striking them out from leases I sign.

I also have to regularly do that to rights agreements for freelance stuff, since a lot of the boilerplate there is insane in the rights that it wants to claim, especially in the realm of restricting similar works. If you want more than non-exclusive, limited duration rights, you're going to have to pay me more. Vice Magazine asks for fucking merchandizing rights on photos that they want you to give them for free, or at least they did in the contract they sent me over shooting a concert. Handily, I don't think anyone read it on their end when I returned an edited document, but it was still presumptive as all hell.
posted by klangklangston at 7:42 PM on September 3 [2 favorites]


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