3 ms·

Don't many services require you to waive your rights to sue, instead directing disputed to private mediation?

CaptArmchair 5y ago
Waiving your rights to sue often comes down to an defining an exemption from liability. It means that you can start a civil lawsuit, but that the court will find the exemption enforcable. Typically, you'll find such waivers on playgrounds, theme parks, public venues and such where the venue can be exempt from liability in case of injury through negligence. Just because you signed a waiver doesn't mean you don't have a case. The court might find that the waiver is trumped by violations in public policy, or it ends up being entered with the intention of effecting an illegal or amoral agreement. In the U.S., such waivers aren't necessary since digital services are well protected by Section 230 providing immunity from liability for providers of an "interactive computer service" who publishes information provided by a third party. The majority of the cases in that Verge article was lost by the plaintiffs over Section 230. https://en.wikipedia.org/wiki/Section_230 https://en.wikipedia.org/wiki/Section_230 A typical argument used by opponents of these services is "freedom of speech" and "censorship". Legally speaking, these only apply in the relationship between the state and members of the public. It means being prosecuted and getting convicted for something you said. A landmark case here is "New York Times Co. v. United States" in which SCOTUS allowed newspapers to publish the then-classified pentagon papers under First Amendment right without censorship or punishment by the government. https://en.wikipedia.org/wiki/New_York_Times_Co._v._United_States https://en.wikipedia.org/wiki/New_York_Times_Co._v._United_S... These do NOT apply when it comes to civil lawsuits between private citizens and private legal entities. When you get banned from Facebook, Twitter, Instagram, Vivaldi's e-mail service, none of your constitutional rights where violated. You weren't thrown in prison or convicted by a judge. All that happened was a private service cutting you off. It's the exact equivalent of a host of a private party having security escort you to the exit. Property laws and constitutional laws give the host legal backing to do exactly that. Banning people from digital services is merely an extension here. Lawmakers in Florida and Texas, though, are currently trying passed laws which would which makes banning people from digital services "based on their viewpoints" illegal. The idea is to undermine the fundamental laws and rights you have. https://www.theverge.com/2021/9/9/22661626/texas-social-media-law-hb-20-signed-greg-abbott https://www.theverge.com/2021/9/9/22661626/texas-social-medi... In Florida, that law has already been blocked by a judge pointing out inherent inequalities through exemptions, and the fact that it directly challenges federal law - Section 230 - as well as the First Amendment. https://www.theverge.com/2021/9/9/22661626/texas-social-media-law-hb-20-signed-greg-abbott https://www.theverge.com/2021/9/9/22661626/texas-social-medi... Complex as all of this may sound, it's really simple though. You are a private individual engaging in the market place between competing e-mail providers. You are not forced by a governement or the state to use a particular service. If you disagree with the terms of service from a particular provider: don't use that provider. You are even entirely free to start your own e-mail service if you wish to do so. That's what you have. So, what's the problem then? Well, what about markets where consolidation has led to a monopoly of a handful of players? What about social media markets where you're compelled to use Facebook or Twitter because your entire social network exclusively communicates through the infrastructure of these private entities? Getting banned from those has a severe impact on a private citizens life, right? Here things become hairy. There's a difference between your legal freedoms and rights you have, and the de facto affordances provided by the marketplace or the commons to actually enforce them as a private citizen e.g. consumer choice, fair pricing, etc. It's very hard to prove that the existence of a monopoly is violating your legal or constitutional rights as a private individual. (Again, all of this pertains to the relationship between private persons and private legal entities. Not a public government!) Private monopolies tend to thrive where there are gaps in a legal framework which ensures that private citizens don't end up at a disadvantage in the marketplace. That's where the legislative branch of government ought to come in to assert that the marketplace isn't behaving in a way which benefits the citizen represented by that government, and take affirmative action through new legislation. That's why Big Tech was brought before several Congressional hearings earlier this year. Personally, I feel that the freedom to ban people from a community is a fundamental necessity to keep that community healthy. On a basic human level, there's no point in having people who can't go through the same door confront each other over and over again. However, I do feel there's a major public issue when a ban ends up in de facto ostracizing of members of the public because the entirety of society - millions of people - have become secluded in digital walled gardens. Even though I fundamentally disagree with the views others may harbor, this level of centralization, well, that's not the kind of Internet I'm okay with.

Waiving your rights to sue often comes down to an defining an exemption from liability. It means that you can start a civil lawsuit, but that the court will find the exemption enforcable. Typically, you'll find such waivers on playgrounds, theme parks, public venues and such where the venue can be exempt from liability in case of injury through negligence. Just because you signed a waiver doesn't mean you don't have a case. The court might find that the waiver is trumped by violations in public policy, or it ends up being entered with the intention of effecting an illegal or amoral agreement. In the U.S., such waivers aren't necessary since digital services are well protected by Section 230 providing immunity from liability for providers of an "interactive computer service" who publishes information provided by a third party. The majority of the cases in that Verge article was lost by the plaintiffs over Section 230. https://en.wikipedia.org/wiki/Section_230 https://en.wikipedia.org/wiki/Section_230 A typical argument used by opponents of these services is "freedom of speech" and "censorship". Legally speaking, these only apply in the relationship between the state and members of the public. It means being prosecuted and getting convicted for something you said. A landmark case here is "New York Times Co. v. United States" in which SCOTUS allowed newspapers to publish the then-classified pentagon papers under First Amendment right without censorship or punishment by the government. https://en.wikipedia.org/wiki/New_York_Times_Co._v._United_States https://en.wikipedia.org/wiki/New_York_Times_Co._v._United_S... These do NOT apply when it comes to civil lawsuits between private citizens and private legal entities. When you get banned from Facebook, Twitter, Instagram, Vivaldi's e-mail service, none of your constitutional rights where violated. You weren't thrown in prison or convicted by a judge. All that happened was a private service cutting you off. It's the exact equivalent of a host of a private party having security escort you to the exit. Property laws and constitutional laws give the host legal backing to do exactly that. Banning people from digital services is merely an extension here. Lawmakers in Florida and Texas, though, are currently trying passed laws which would which makes banning people from digital services "based on their viewpoints" illegal. The idea is to undermine the fundamental laws and rights you have. https://www.theverge.com/2021/9/9/22661626/texas-social-media-law-hb-20-signed-greg-abbott https://www.theverge.com/2021/9/9/22661626/texas-social-medi... In Florida, that law has already been blocked by a judge pointing out inherent inequalities through exemptions, and the fact that it directly challenges federal law - Section 230 - as well as the First Amendment. https://www.theverge.com/2021/9/9/22661626/texas-social-media-law-hb-20-signed-greg-abbott https://www.theverge.com/2021/9/9/22661626/texas-social-medi... Complex as all of this may sound, it's really simple though. You are a private individual engaging in the market place between competing e-mail providers. You are not forced by a governement or the state to use a particular service. If you disagree with the terms of service from a particular provider: don't use that provider. You are even entirely free to start your own e-mail service if you wish to do so. That's what you have. So, what's the problem then? Well, what about markets where consolidation has led to a monopoly of a handful of players? What about social media markets where you're compelled to use Facebook or Twitter because your entire social network exclusively communicates through the infrastructure of these private entities? Getting banned from those has a severe impact on a private citizens life, right? Here things become hairy. There's a difference between your legal freedoms and rights you have, and the de facto affordances provided by the marketplace or the commons to actually enforce them as a private citizen e.g. consumer choice, fair pricing, etc. It's very hard to prove that the existence of a monopoly is violating your legal or constitutional rights as a private individual. (Again, all of this pertains to the relationship between private persons and private legal entities. Not a public government!) Private monopolies tend to thrive where there are gaps in a legal framework which ensures that private citizens don't end up at a disadvantage in the marketplace. That's where the legislative branch of government ought to come in to assert that the marketplace isn't behaving in a way which benefits the citizen represented by that government, and take affirmative action through new legislation. That's why Big Tech was brought before several Congressional hearings earlier this year. Personally, I feel that the freedom to ban people from a community is a fundamental necessity to keep that community healthy. On a basic human level, there's no point in having people who can't go through the same door confront each other over and over again. However, I do feel there's a major public issue when a ban ends up in de facto ostracizing of members of the public because the entirety of society - millions of people - have become secluded in digital walled gardens. Even though I fundamentally disagree with the views others may harbor, this level of centralization, well, that's not the kind of Internet I'm okay with.