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> “I agree,” I pressed. We had now made a binding agreement, the app and I. I hate this whole premise. We have to agree to an incomprehensible text wall of vag

> “I agree,” I pressed. We had now made a binding agreement, the app and I. I hate this whole premise. We have to agree to an incomprehensible text wall of vague legal nonsense, that very often violate our own laws (as in this case), in order to install an app. These illegal contracts are completely void of any meaning, and it should not matter that you "agreed" to be screwed over like that. Being screwed over like this is illegal, so those who do this, should not stay safe just because you clicked "I agree".

MaxBarraclough 6y ago
> Being screwed over like this is illegal More precisely, these agreements generally aren't legally binding in Europe, but generally are legally binding in the US.
- bjarneh 6y ago
  True; although who knows what would hold up in court if anyone was to file a lawsuit based on some of these "digital contracts" we agree to every time we click "I agree".
  - mgamache 6y ago
    I have a feeling that a judge would want to find them invalid, but what happens if he/she rules that they are non-binding? The chaos it would cause for US B2C businesses would be large. This alone may sway the courts to make them binding.
    - bjarneh 6y ago
      > This alone may sway the courts to make them binding. I'm afraid you are correct, but hasn't the whole system collapsed if: - Is this good for our businesses? is is part of your consideration when you are trying to find out if something is illegal or not?
    - Red_Leaves_Flyy 6y ago
      Customers should have the legal footing to negotiate every line in every contract with someone holding the status to negotiate on behalf of the company. If I can't negotiate my cell phone contact I'm placed in an impossible scenario where I either agree under duress or endure the impossible life of someone that refuses to sign contracts. Essentially, there are 4-6 contracts I'm capable of negotiating in my life out of tens of thousands I've agreed to under duress. Those 4-6 are: apartment lease (keep the Wi-Fi take off $50), groundskeeping (days, times, work to be done, breachs), trash (when, where). These negotiations are only possible because these companies have sole proprietors who will get on the phone to keep a customer. Let's move every company closer to this model by requiring every contract to be negotiable or, if online, optout no guarantees, no warranty, no liability, no tracking except for carefully and explicitly outlined exceptions.
    - matheusmoreira 6y ago
      > The chaos it would cause for US B2C businesses would be large. Literally who cares? Let them deal with it. It doesn't matter how much money they lose. They should have considered the consequences of abusing people's trust and violating their privacy under questionable consent. Corporations are vastly more powerful compared to individuals. Courts obviously need to favor the latter in the vast majority of cases. To do otherwise is injustice.
      - mgamache 6y ago
        It was not a value judgement, just a prediction. Some judges do look at the impact of a ruling. I personally don't think they should be legally binding (as I suspect most HN readers do). "doesn't matter how much money they lose" -- of course it does, these companies employ people and generate lots of government revenue (even if they skirt corporate taxes).
        wizzwizz4 6y ago
        And if they fold due to privacy violations, another company will usually take their place.
        matheusmoreira 6y ago
        > these companies employ people and generate lots of government revenue (even if they skirt corporate taxes). There are political and economic concerns, not judicial. The fact the company is important does nothing to remedy the fact that it exfiltrated private information to foreign intelligence agencies.
    - alisonkisk 6y ago
      The often are non-binding. Read up on "contracts of adhesion". Business doesn't fall apart because at the end of the day it mostly doesn't matter if you obey TOS. This has nothing to do with privacy though, since there's (in most cases) no law against what the companies are doing with the day.
  - gzer0 6y ago
    The TOS of any European company cannot supersede the law of the European Union. Example; how one individual singlehandedy forced the hands of Spotify to reverse an API decision they made blocking the export of your playlists. Note how Spotify thinks their TOS supersedes the GDPR. It does not. Otherwise, we would have corporations directly creating laws. [1] https://news.ycombinator.com/item?id=24764371 https://news.ycombinator.com/item?id=24764371
    - mattmanser 6y ago
      The trouble with the GDPR seems to be that it relies on government enforcement. For example the UK's enforcement arm, the ICO, recently found that the adtech industry was in violation of the GDPR, then did nothing: https://www.openrightsgroup.org/blog/the-ico-must-fix-the-adtech-industry/ https://www.openrightsgroup.org/blog/the-ico-must-fix-the-ad... As far as I know, I can't personally sue these companies for this, and if the ICO does nothing then what's the law is meaningless. The follow up from the Open Rights Group is here: https://www.openrightsgroup.org/blog/parliament-must-hold-the-ico-to-account/ https://www.openrightsgroup.org/blog/parliament-must-hold-th... If you care about privacy in the UK, please donate to ORG, I started a direct debit years ago and have always been impressed with their work and focus: https://www.openrightsgroup.org/join/ https://www.openrightsgroup.org/join/
      - karlp 6y ago
        > As far as I know, I can't personally sue these companies for this, and if the ICO does nothing then what's the law is meaningless. Couldn't you sue ICO then?
        plett 6y ago
        Yes. That's what the Open Rights Group are doing, and they want donations to help with it. https://action.openrightsgroup.org/help-us-protect-your-data-illegal-ads https://action.openrightsgroup.org/help-us-protect-your-data...
- deleted 6y ago
  [deleted]
- Moru 6y ago
  Usually there is a few lines at the end stating that wherever this is illegal, these parts are not binding. (Or something more legalese ofcourse)
  - davvolun 6y ago
    That's kind of the thing though. > Signer agrees to become contract murderer unless pre-empted by local laws and regulations. I'm over-exaggerating, and I get the value when it's prohibitively expensive to write a TOS when it's essentially impossible to pre-emptively vet the legality of all possible clauses internationally as laws constantly change. But if the clause I wrote is technically valid, then what's the point? Just write a short phrase saying "We're going to do whatever we like, unless it's prohibited by law. Accept? Y/N"
    - alisonkisk 6y ago
      The TOS is about what you can do, not what the company can do.
      - buckminster 6y ago
        This is pedantically true, but the TOS are usually bundled with other agreements that purport to give the company permission to do things.
      - danarmak 6y ago
        "We'll do whatever we like, and you're not allowed to do anything, except as required by applicable law".
  - bigwavedave 6y ago
    > Usually there is a few lines at the end stating that wherever this is illegal, these parts are not binding Personally, this is what I detest the most. There's always a bit in the boilerplate that's akin to "you agree to everything here, even the unenforceable bits. If we're ever challenged on the unenforceable parts after the fact, you still agree to be bound by everything else here." IA[very_much]NAL, but to me this always sounds like "We can and will stick whatever nonsense we want in this contract, whether the terms are illegal or not, and you will be bound by them for as long as we can get away with it. If you do ever discover the illegal bits, that doesn't void anything else (including any other illegal bits you haven't found yet!) and you can't sue us- you've given up that right and can only use a mediator from our approved list. May the odds be ever in your favor."
dalbasal 6y ago
As people, we like to think categorically... especially "contracting" in the philosophical and legal sense. Whether its a medieval oath or a standard employment contract, the concept of "binding agreement" sorts out moral issues of consent and creates a platform for further relations. Reality is generally less fussy about categorical boundaries. It likes spectrum. Linnaean classification is an approximation. Biology isn't strict about species, or even organism barriers. It's the same with a lot of cultural stuff. On one end of the spectrum, we can have a business agreement negotiated diligently and in good faith between equal partners. On the other end, we have take-it-or-leave it agreements: The T&Cs stack a bank hands you when you take a loan. The wall of incomprehensible legalese we consent to when we use an app or website. An employment contract is somewhere on that spectrum. Employees may be able to submit "red line corrections" depending on their seniority and confidence, but generally its written by employers and treated as under their control. In philosophy, contracts (including rhetorical ones like "moral contracts) are a popular mechanism for problem solving. They certainly are in law. In normal human life, norms are much more common.
- martamorena9182 6y ago
  I legitimately have no clue what you are trying to say. But it sounds very educated, so that's good I guess?
  - laszlokorte 6y ago
    In short: contracts are only as valid as you want them to be or as a powerful entity can force them upon you.
  - dalbasal 6y ago
    What isn't understandable?
    - martamorena9182 6y ago
      Being able to read the words doesn't mean the comment makes sense. Reading it over and over again, yeah sure I can understand it, but I don't see any "point" or relation to the original comment. Some people just seem to feel "smart" by wording things as convoluted as possible, using fancy words and references. The truth is, it is much harder to express thoughts clearly with simple, yet elegant words. Mostly because that makes everyone understand it, and everyone able to see through the facade. Meaning that whatever you say will need to hold up to much more scrutiny and you can't hide behind a facade of "fancyness" that scares off readers. It's similar to coding. Writing simple code for complex programs is much much harder than writing complex code for complex problems, or even worse complex code for simple problems, which many people like to do.
loa_in_ 6y ago
You as a user can choose to uninstall it immediately and try alternatives until successful. Most people of course, akin to how paying with card makes you overspend because you don't see the money, agree to anything because it's just a button on the screen not a potentially predatory human person.
- shuntress 6y ago
  Those two things are not equivalent. In the case of overly vague terms of service, people agree to them because there are essentially no options or alternatives. Sure, it does not help that people agree to them without thinking about it. Which is somewhat similar to people spending money without thinking about how much they have.
- swiley 6y ago
  You know full well there are plenty of situations where that's not an option and that almost no one fully appreciates what happens when they press agree. The whole culture around closed smart phone apps is completely rotten.
mistermann 6y ago
I wouldn't over worry about such things. If it was that big of a deal, the government would be "on it". After all, is Democracy not the best mechanism possible for executing the aggregate will of the people? And would the will of the people not be to not be tracked in this manner? I predict this undesirable situation will be eliminated in less than one year - or, in case it is more complicated than it seems (and therefore takes more time to resolve), will at least have significant attention from both the government and the media until it is resolved to the satisfaction of voters. I will keep my eyes open for an upcoming entry for this matter on the "Top 10,000 Concerns of the General Public" KPI tracker where we monitor matters of public concern like this, and I will use 10 of my monthly allocated voting units to express my level of concern.
- tleb_ 6y ago
  This has been going on and known for a few years now, why would it change in the upcoming year?
  - mistermann 6y ago
    Well if it was important, wouldn't an initiative to rectify it be underway then? Or, might there be a flaw in one of my premises? I only hold these because they seem to be the same premises advertised by other people.
- mdpopescu 6y ago
  I do hope that you're being sarcastic.
m463 6y ago
> We have to agree When you install an iphone it's even worse They have a screen describing privacy. You can click and see the privacy policy. And then the privacy policy is actually pages and pages and pages of pointers to individual sub-privacy policies. and there is no "I agree", they just show you all this. You can opt out of some things later, but already they're a token gesture.
- bjarneh 6y ago
  > When you install an iphone it's even worse It can always get worse... > .. pages of pointers to individual sub-privacy policies. At this point expecting someone to have read them is just nuts. The "lawsuit culture" in the US, where you have to guard yourself from possible lawsuits all the time, have made these legal contracts comically bad. They have always been strange, since you typically get to read them after you unpack the phone/computer etc.
cleverpatrick 6y ago
In the past I've used a text or html editor to change that text before clicking "I Agree," and then saving off a local copy. Seems as reasonable a way to negotiate the contact as the way it was presented to me in the first place.

MaxBarraclough 6y ago

> Being screwed over like this is illegal More precisely, these agreements generally aren't legally binding in Europe, but generally are legally binding in the US.

bjarneh 6y ago
True; although who knows what would hold up in court if anyone was to file a lawsuit based on some of these "digital contracts" we agree to every time we click "I agree".
- mgamache 6y ago
  I have a feeling that a judge would want to find them invalid, but what happens if he/she rules that they are non-binding? The chaos it would cause for US B2C businesses would be large. This alone may sway the courts to make them binding.
  - bjarneh 6y ago
    > This alone may sway the courts to make them binding. I'm afraid you are correct, but hasn't the whole system collapsed if: - Is this good for our businesses? is is part of your consideration when you are trying to find out if something is illegal or not?
  - Red_Leaves_Flyy 6y ago
    Customers should have the legal footing to negotiate every line in every contract with someone holding the status to negotiate on behalf of the company. If I can't negotiate my cell phone contact I'm placed in an impossible scenario where I either agree under duress or endure the impossible life of someone that refuses to sign contracts. Essentially, there are 4-6 contracts I'm capable of negotiating in my life out of tens of thousands I've agreed to under duress. Those 4-6 are: apartment lease (keep the Wi-Fi take off $50), groundskeeping (days, times, work to be done, breachs), trash (when, where). These negotiations are only possible because these companies have sole proprietors who will get on the phone to keep a customer. Let's move every company closer to this model by requiring every contract to be negotiable or, if online, optout no guarantees, no warranty, no liability, no tracking except for carefully and explicitly outlined exceptions.
  - matheusmoreira 6y ago
    > The chaos it would cause for US B2C businesses would be large. Literally who cares? Let them deal with it. It doesn't matter how much money they lose. They should have considered the consequences of abusing people's trust and violating their privacy under questionable consent. Corporations are vastly more powerful compared to individuals. Courts obviously need to favor the latter in the vast majority of cases. To do otherwise is injustice.
    - mgamache 6y ago
      It was not a value judgement, just a prediction. Some judges do look at the impact of a ruling. I personally don't think they should be legally binding (as I suspect most HN readers do). "doesn't matter how much money they lose" -- of course it does, these companies employ people and generate lots of government revenue (even if they skirt corporate taxes).
      - wizzwizz4 6y ago
        And if they fold due to privacy violations, another company will usually take their place.
      - matheusmoreira 6y ago
        > these companies employ people and generate lots of government revenue (even if they skirt corporate taxes). There are political and economic concerns, not judicial. The fact the company is important does nothing to remedy the fact that it exfiltrated private information to foreign intelligence agencies.
  - alisonkisk 6y ago
    The often are non-binding. Read up on "contracts of adhesion". Business doesn't fall apart because at the end of the day it mostly doesn't matter if you obey TOS. This has nothing to do with privacy though, since there's (in most cases) no law against what the companies are doing with the day.
- gzer0 6y ago
  The TOS of any European company cannot supersede the law of the European Union. Example; how one individual singlehandedy forced the hands of Spotify to reverse an API decision they made blocking the export of your playlists. Note how Spotify thinks their TOS supersedes the GDPR. It does not. Otherwise, we would have corporations directly creating laws. [1] https://news.ycombinator.com/item?id=24764371 https://news.ycombinator.com/item?id=24764371
  - mattmanser 6y ago
    The trouble with the GDPR seems to be that it relies on government enforcement. For example the UK's enforcement arm, the ICO, recently found that the adtech industry was in violation of the GDPR, then did nothing: https://www.openrightsgroup.org/blog/the-ico-must-fix-the-adtech-industry/ https://www.openrightsgroup.org/blog/the-ico-must-fix-the-ad... As far as I know, I can't personally sue these companies for this, and if the ICO does nothing then what's the law is meaningless. The follow up from the Open Rights Group is here: https://www.openrightsgroup.org/blog/parliament-must-hold-the-ico-to-account/ https://www.openrightsgroup.org/blog/parliament-must-hold-th... If you care about privacy in the UK, please donate to ORG, I started a direct debit years ago and have always been impressed with their work and focus: https://www.openrightsgroup.org/join/ https://www.openrightsgroup.org/join/
    - karlp 6y ago
      > As far as I know, I can't personally sue these companies for this, and if the ICO does nothing then what's the law is meaningless. Couldn't you sue ICO then?
      - plett 6y ago
        Yes. That's what the Open Rights Group are doing, and they want donations to help with it. https://action.openrightsgroup.org/help-us-protect-your-data-illegal-ads https://action.openrightsgroup.org/help-us-protect-your-data...
deleted 6y ago
[deleted]
Moru 6y ago
Usually there is a few lines at the end stating that wherever this is illegal, these parts are not binding. (Or something more legalese ofcourse)
- davvolun 6y ago
  That's kind of the thing though. > Signer agrees to become contract murderer unless pre-empted by local laws and regulations. I'm over-exaggerating, and I get the value when it's prohibitively expensive to write a TOS when it's essentially impossible to pre-emptively vet the legality of all possible clauses internationally as laws constantly change. But if the clause I wrote is technically valid, then what's the point? Just write a short phrase saying "We're going to do whatever we like, unless it's prohibited by law. Accept? Y/N"
  - alisonkisk 6y ago
    The TOS is about what you can do, not what the company can do.
    - buckminster 6y ago
      This is pedantically true, but the TOS are usually bundled with other agreements that purport to give the company permission to do things.
    - danarmak 6y ago
      "We'll do whatever we like, and you're not allowed to do anything, except as required by applicable law".
- bigwavedave 6y ago
  > Usually there is a few lines at the end stating that wherever this is illegal, these parts are not binding Personally, this is what I detest the most. There's always a bit in the boilerplate that's akin to "you agree to everything here, even the unenforceable bits. If we're ever challenged on the unenforceable parts after the fact, you still agree to be bound by everything else here." IA[very_much]NAL, but to me this always sounds like "We can and will stick whatever nonsense we want in this contract, whether the terms are illegal or not, and you will be bound by them for as long as we can get away with it. If you do ever discover the illegal bits, that doesn't void anything else (including any other illegal bits you haven't found yet!) and you can't sue us- you've given up that right and can only use a mediator from our approved list. May the odds be ever in your favor."

dalbasal 6y ago

As people, we like to think categorically... especially "contracting" in the philosophical and legal sense. Whether its a medieval oath or a standard employment contract, the concept of "binding agreement" sorts out moral issues of consent and creates a platform for further relations. Reality is generally less fussy about categorical boundaries. It likes spectrum. Linnaean classification is an approximation. Biology isn't strict about species, or even organism barriers. It's the same with a lot of cultural stuff. On one end of the spectrum, we can have a business agreement negotiated diligently and in good faith between equal partners. On the other end, we have take-it-or-leave it agreements: The T&Cs stack a bank hands you when you take a loan. The wall of incomprehensible legalese we consent to when we use an app or website. An employment contract is somewhere on that spectrum. Employees may be able to submit "red line corrections" depending on their seniority and confidence, but generally its written by employers and treated as under their control. In philosophy, contracts (including rhetorical ones like "moral contracts) are a popular mechanism for problem solving. They certainly are in law. In normal human life, norms are much more common.

martamorena9182 6y ago
I legitimately have no clue what you are trying to say. But it sounds very educated, so that's good I guess?
- laszlokorte 6y ago
  In short: contracts are only as valid as you want them to be or as a powerful entity can force them upon you.
- dalbasal 6y ago
  What isn't understandable?
  - martamorena9182 6y ago
    Being able to read the words doesn't mean the comment makes sense. Reading it over and over again, yeah sure I can understand it, but I don't see any "point" or relation to the original comment. Some people just seem to feel "smart" by wording things as convoluted as possible, using fancy words and references. The truth is, it is much harder to express thoughts clearly with simple, yet elegant words. Mostly because that makes everyone understand it, and everyone able to see through the facade. Meaning that whatever you say will need to hold up to much more scrutiny and you can't hide behind a facade of "fancyness" that scares off readers. It's similar to coding. Writing simple code for complex programs is much much harder than writing complex code for complex problems, or even worse complex code for simple problems, which many people like to do.

loa_in_ 6y ago

You as a user can choose to uninstall it immediately and try alternatives until successful. Most people of course, akin to how paying with card makes you overspend because you don't see the money, agree to anything because it's just a button on the screen not a potentially predatory human person.

shuntress 6y ago
Those two things are not equivalent. In the case of overly vague terms of service, people agree to them because there are essentially no options or alternatives. Sure, it does not help that people agree to them without thinking about it. Which is somewhat similar to people spending money without thinking about how much they have.
swiley 6y ago
You know full well there are plenty of situations where that's not an option and that almost no one fully appreciates what happens when they press agree. The whole culture around closed smart phone apps is completely rotten.

mistermann 6y ago

I wouldn't over worry about such things. If it was that big of a deal, the government would be "on it". After all, is Democracy not the best mechanism possible for executing the aggregate will of the people? And would the will of the people not be to not be tracked in this manner? I predict this undesirable situation will be eliminated in less than one year - or, in case it is more complicated than it seems (and therefore takes more time to resolve), will at least have significant attention from both the government and the media until it is resolved to the satisfaction of voters. I will keep my eyes open for an upcoming entry for this matter on the "Top 10,000 Concerns of the General Public" KPI tracker where we monitor matters of public concern like this, and I will use 10 of my monthly allocated voting units to express my level of concern.

tleb_ 6y ago
This has been going on and known for a few years now, why would it change in the upcoming year?
- mistermann 6y ago
  Well if it was important, wouldn't an initiative to rectify it be underway then? Or, might there be a flaw in one of my premises? I only hold these because they seem to be the same premises advertised by other people.
mdpopescu 6y ago
I do hope that you're being sarcastic.

m463 6y ago

> We have to agree When you install an iphone it's even worse They have a screen describing privacy. You can click and see the privacy policy. And then the privacy policy is actually pages and pages and pages of pointers to individual sub-privacy policies. and there is no "I agree", they just show you all this. You can opt out of some things later, but already they're a token gesture.

bjarneh 6y ago
> When you install an iphone it's even worse It can always get worse... > .. pages of pointers to individual sub-privacy policies. At this point expecting someone to have read them is just nuts. The "lawsuit culture" in the US, where you have to guard yourself from possible lawsuits all the time, have made these legal contracts comically bad. They have always been strange, since you typically get to read them after you unpack the phone/computer etc.

cleverpatrick 6y ago

In the past I've used a text or html editor to change that text before clicking "I Agree," and then saving off a local copy. Seems as reasonable a way to negotiate the contact as the way it was presented to me in the first place.