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This will be a great test of the Terms Of Service that Facebook provides. Texas argues this was done without consent and Facebook will point at their TOS and s

This will be a great test of the Terms Of Service that Facebook provides. Texas argues this was done without consent and Facebook will point at their TOS and say “we can do what we like with the content people post”. This really needs to be challenged since nobody reads the TOS. Maybe someday we’ll actually get digital privacy reform in the US.

krapp 5y ago
>This really needs to be challenged since nobody reads the TOS. Maybe someday we’ll actually get digital privacy reform in the US. Or maybe that's now how contracts work and people should read the TOS before explicitly agreeing to be bound by those terms in exchange for an account. Otherwise, I should just tell Navient to cancel my student loans because I never bothered to read all those tiny words, lol.
- croes 5y ago
  You missed that part >Texas sued Facebook parent company Meta for exploiting the biometric data of millions of people in the state - including those who used the platform and those who did not. No contract, no TOS, no consent.
- RHSeeger 5y ago
  And everyone should drive safely. However, since neither of those is realistic by any definition of the word, it falls upon society to setup rules that make everyone better off.
  - krapp 5y ago
    But the rules are already in place and set up - the ones people want to ignore and pretend don't exist if they don't see them, even though they signed on the dotted line, as it were.
    - roblabla 5y ago
      "The rules" are in place, but we can change them if we, as a society, decide that they don't work, or don't reflect reality, or cost too much. Besides, if the vast majority of people ignores a rule, maybe it means that the rule is ripe for changing. That doesn't necessarily mean removing TOS entirely, mind you. There are a bunch of other solutions. We could enforce minimum standards for human-readable, short form presentation of TOS. We could enforce what they may and may not restrict, in order to allow users to accept with reasonable minimum expectations of what they're accepting.
    - piva00 5y ago
      Sure. Have you read in their entirety every single ToS you ever signed? If you didn't, why do you expect others to have? And if you don't expect others to have read stuff they agreed to, how fucking realistic is it that the rules say that everyone should abide by something that's simply impossible for a normal human being to do? The rules exist and they are fucking dumb. Or better if I say: not grounded in reality?
  - charcircuit 5y ago
    If someone doesn't drive safely there can be negative consequences. If people don't read the agreements they agree to there can be negative consequences.
- Fnoord 5y ago
  That sounds great, except: not everything in Terms of Service or End User License Agreement is legally enforceable. The law is above these. And that is often not tested by trial (in this case it is).
- BiteCode_dev 5y ago
  Amazon kindle TOS take 9 hours to read: https://inshorts.com/en/news/man-takes-9-hours-to-read-amazon-kindle-terms-and-conditions-1489663858404 https://inshorts.com/en/news/man-takes-9-hours-to-read-amazo.... That's if you understand it entirely, including the legalese, on the first read. That's for the kindle only, not for amazon the website, nor alexa or prime. I accepted 3 TOS last week, as a dev, it's almost part of my job description, but let's focus on normal people and say they don't accept TOS for Github, FIGMA or AWS, but only for stuff like youtube, gmail, msoffice, whatsapp, instagram, etc. Let's be _very_ optimistic and say you have 20 TOS (excluding IRL contracts such as the bank, insurance, etc) forced on you every year by services: Apple, Google, Microsoft, Mozilla, Telegram, Facebook all have different TOS for difference services. Then you have the TOS updates, that don't come as a diff of the previous one, but as a haystack with the changes as needles. So let's say 10 more to read, again. Let's average reading time to 5 hours (I'm being very generous), and assume you understand the implications (at this point, it's not generosity, it's abnegation). That's 30 * 5, or 150 hours, that you are supposed to spend each year on reading those ? What do you do, take 3 weeks of vacation just for that ? Also don't forget to sleep, eat healthy, exercise, educate yourself, and socialize. I hope you don't have a full time job or kids.
  - jevoten 5y ago
    And what if, after reading the ToS, they object to some clause? Their only recourse is not using the service. Object to more than a handful, and soon your only option is living in a cave. That, or push for legislation that limits what may be put into contracts, clickthrough or others. But since contracts are sacrosanct, and the highest purpose of society and the law is enforcing them, that option is off the table.
  - jdkjs 5y ago
    Then don’t use the services. I wouldn’t sign a contract without reading it. “Your honour, I had no time to read the contract, therefore it’s void” seems a bad excuse.
    - tapoxi 5y ago
      But could you claim that the contract is arbitrarily long and complex to knowingly discourage a reasonable person from reading it?
- 2pEXgD0fZ5cF 5y ago
  1. Most if not all ToS contain parts that contradict law and are thus not enforcable. ToS and contracts in general are not some magical trap cards you can "gotcha" everyone with with anything you want. 2. Pretending that ToS are written in a way that the average user without a law degree, or even technical competency in this example, can 100% understand them and interpret their future implications is just dishonest. In that sense: To any HN user, by replying to my comment you agree to the following terms: - Starting February 20th, 2022, you are obligated to upvote every piece of written text or submission created by user "2pEXgD0fZ5cF" appearing, now or in the future, on the website https://news.ycombinator https://news.ycombinator or any website that can be considered derivative of https://news.ycombinator.com https://news.ycombinator.com. These terms of interaction are subject to change at any point in the future. [1] [1]: I'm not a lawyer, and someone trained in law probably would've been able to create a version of this that is actually funny.
  - flerchin 5y ago
    You son of a gun. I'm in.
  - kevin_b_er 5y ago
    More and more TOS contain Mandatory Binding Arbitration. Once Mandatory Binding Arbitration is invoked, no other law matters. It supersedes other state and federal laws with respect to contracts. The contract will then be judged by arbiters who can be blacklisted by the company if they rule against them too often. State law is not permitted to prevent mandatory binding arbitration. The fairness, reasonableness, or conscionableness of the rest of the contract is then not reviewable or adjudicate by a court of law. The arbiter will decide the fairness. Due to clickwarp, you are not required to understand or perceive your loss of rights for them to be lost. Corporations love them. So, yes, they can be "gotcha"s
    - 2pEXgD0fZ5cF 5y ago
      I should've put my emphasis on the "anything" part, surely there will always be aspects that can't override established law. At least for now, who knows if in the future Zuckerberg sneaks some Droit du seigneur [1] clause into Facebooks ToS once Silicon Valley has successfully "disrupted" Bodily integrity. [1]: https://en.wikipedia.org/wiki/Droit_du_seigneur https://en.wikipedia.org/wiki/Droit_du_seigneur
- danielscrubs 5y ago
  Not at all. To dumb it down (just started studying this subject): There is a hierarchy to each law, sometimes it can be overridden by a TOS, sometimes not, sometimes even the standard the industry has set is above the TOS (and strangely enough some laws, for example when you pay on the buss no contracts are written for the trip because it is is deemed to be standard of the transport industry). It all depends. Here they are leaning on "Capture or Use of Biometric Identifier Act and the Deceptive Trade Practices Act".
tsatsawayy 5y ago
First line of the article: >Texas sued Facebook parent company Meta for exploiting the biometric data of millions of people in the state - including those who used the platform and those who did not. Some of us never accepted their TOS, but they still maintain profiles for us.
- binarymax 5y ago
  Indeed! If someone uploads a photo of themself at a party and I'm in the photo - I never gave consent, but the uploader did. This is an important question that the court will need to answer.
Throwawayaerlei 5y ago
Terms of Service are basically contracts of adhesion: https://www.law.cornell.edu/wex/adhesion_contract_%28contract_of_adhesion%29 https://www.law.cornell.edu/wex/adhesion_contract_%28contrac...

krapp 5y ago

>This really needs to be challenged since nobody reads the TOS. Maybe someday we’ll actually get digital privacy reform in the US. Or maybe that's now how contracts work and people should read the TOS before explicitly agreeing to be bound by those terms in exchange for an account. Otherwise, I should just tell Navient to cancel my student loans because I never bothered to read all those tiny words, lol.

croes 5y ago
You missed that part >Texas sued Facebook parent company Meta for exploiting the biometric data of millions of people in the state - including those who used the platform and those who did not. No contract, no TOS, no consent.
RHSeeger 5y ago
And everyone should drive safely. However, since neither of those is realistic by any definition of the word, it falls upon society to setup rules that make everyone better off.
- krapp 5y ago
  But the rules are already in place and set up - the ones people want to ignore and pretend don't exist if they don't see them, even though they signed on the dotted line, as it were.
  - roblabla 5y ago
    "The rules" are in place, but we can change them if we, as a society, decide that they don't work, or don't reflect reality, or cost too much. Besides, if the vast majority of people ignores a rule, maybe it means that the rule is ripe for changing. That doesn't necessarily mean removing TOS entirely, mind you. There are a bunch of other solutions. We could enforce minimum standards for human-readable, short form presentation of TOS. We could enforce what they may and may not restrict, in order to allow users to accept with reasonable minimum expectations of what they're accepting.
  - piva00 5y ago
    Sure. Have you read in their entirety every single ToS you ever signed? If you didn't, why do you expect others to have? And if you don't expect others to have read stuff they agreed to, how fucking realistic is it that the rules say that everyone should abide by something that's simply impossible for a normal human being to do? The rules exist and they are fucking dumb. Or better if I say: not grounded in reality?
- charcircuit 5y ago
  If someone doesn't drive safely there can be negative consequences. If people don't read the agreements they agree to there can be negative consequences.
Fnoord 5y ago
That sounds great, except: not everything in Terms of Service or End User License Agreement is legally enforceable. The law is above these. And that is often not tested by trial (in this case it is).
BiteCode_dev 5y ago
Amazon kindle TOS take 9 hours to read: https://inshorts.com/en/news/man-takes-9-hours-to-read-amazon-kindle-terms-and-conditions-1489663858404 https://inshorts.com/en/news/man-takes-9-hours-to-read-amazo.... That's if you understand it entirely, including the legalese, on the first read. That's for the kindle only, not for amazon the website, nor alexa or prime. I accepted 3 TOS last week, as a dev, it's almost part of my job description, but let's focus on normal people and say they don't accept TOS for Github, FIGMA or AWS, but only for stuff like youtube, gmail, msoffice, whatsapp, instagram, etc. Let's be _very_ optimistic and say you have 20 TOS (excluding IRL contracts such as the bank, insurance, etc) forced on you every year by services: Apple, Google, Microsoft, Mozilla, Telegram, Facebook all have different TOS for difference services. Then you have the TOS updates, that don't come as a diff of the previous one, but as a haystack with the changes as needles. So let's say 10 more to read, again. Let's average reading time to 5 hours (I'm being very generous), and assume you understand the implications (at this point, it's not generosity, it's abnegation). That's 30 * 5, or 150 hours, that you are supposed to spend each year on reading those ? What do you do, take 3 weeks of vacation just for that ? Also don't forget to sleep, eat healthy, exercise, educate yourself, and socialize. I hope you don't have a full time job or kids.
- jevoten 5y ago
  And what if, after reading the ToS, they object to some clause? Their only recourse is not using the service. Object to more than a handful, and soon your only option is living in a cave. That, or push for legislation that limits what may be put into contracts, clickthrough or others. But since contracts are sacrosanct, and the highest purpose of society and the law is enforcing them, that option is off the table.
- jdkjs 5y ago
  Then don’t use the services. I wouldn’t sign a contract without reading it. “Your honour, I had no time to read the contract, therefore it’s void” seems a bad excuse.
  - tapoxi 5y ago
    But could you claim that the contract is arbitrarily long and complex to knowingly discourage a reasonable person from reading it?
2pEXgD0fZ5cF 5y ago
1. Most if not all ToS contain parts that contradict law and are thus not enforcable. ToS and contracts in general are not some magical trap cards you can "gotcha" everyone with with anything you want. 2. Pretending that ToS are written in a way that the average user without a law degree, or even technical competency in this example, can 100% understand them and interpret their future implications is just dishonest. In that sense: To any HN user, by replying to my comment you agree to the following terms: - Starting February 20th, 2022, you are obligated to upvote every piece of written text or submission created by user "2pEXgD0fZ5cF" appearing, now or in the future, on the website https://news.ycombinator https://news.ycombinator or any website that can be considered derivative of https://news.ycombinator.com https://news.ycombinator.com. These terms of interaction are subject to change at any point in the future. [1] [1]: I'm not a lawyer, and someone trained in law probably would've been able to create a version of this that is actually funny.
- flerchin 5y ago
  You son of a gun. I'm in.
- kevin_b_er 5y ago
  More and more TOS contain Mandatory Binding Arbitration. Once Mandatory Binding Arbitration is invoked, no other law matters. It supersedes other state and federal laws with respect to contracts. The contract will then be judged by arbiters who can be blacklisted by the company if they rule against them too often. State law is not permitted to prevent mandatory binding arbitration. The fairness, reasonableness, or conscionableness of the rest of the contract is then not reviewable or adjudicate by a court of law. The arbiter will decide the fairness. Due to clickwarp, you are not required to understand or perceive your loss of rights for them to be lost. Corporations love them. So, yes, they can be "gotcha"s
  - 2pEXgD0fZ5cF 5y ago
    I should've put my emphasis on the "anything" part, surely there will always be aspects that can't override established law. At least for now, who knows if in the future Zuckerberg sneaks some Droit du seigneur [1] clause into Facebooks ToS once Silicon Valley has successfully "disrupted" Bodily integrity. [1]: https://en.wikipedia.org/wiki/Droit_du_seigneur https://en.wikipedia.org/wiki/Droit_du_seigneur
danielscrubs 5y ago
Not at all. To dumb it down (just started studying this subject): There is a hierarchy to each law, sometimes it can be overridden by a TOS, sometimes not, sometimes even the standard the industry has set is above the TOS (and strangely enough some laws, for example when you pay on the buss no contracts are written for the trip because it is is deemed to be standard of the transport industry). It all depends. Here they are leaning on "Capture or Use of Biometric Identifier Act and the Deceptive Trade Practices Act".

tsatsawayy 5y ago

First line of the article: >Texas sued Facebook parent company Meta for exploiting the biometric data of millions of people in the state - including those who used the platform and those who did not. Some of us never accepted their TOS, but they still maintain profiles for us.

binarymax 5y ago
Indeed! If someone uploads a photo of themself at a party and I'm in the photo - I never gave consent, but the uploader did. This is an important question that the court will need to answer.

Throwawayaerlei 5y ago

Terms of Service are basically contracts of adhesion: https://www.law.cornell.edu/wex/adhesion_contract_%28contract_of_adhesion%29 https://www.law.cornell.edu/wex/adhesion_contract_%28contrac...