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We need judges to start growing a backbone and declaring these one-sided "agreements" unconscionable. The company has outsized power over the purchaser, the ter

We need judges to start growing a backbone and declaring these one-sided "agreements" unconscionable. The company has outsized power over the purchaser, the terms tend to be one-sided, and there is no meaningful choice to the purchaser. These things should be clear cut cases of unconscionability, and judges should be throwing them out left and right and penalizing the companies who try to push them.

ethbr1 1y ago
Absent something like a component of the GDPR, I'd highly doubt the judiciary in any country is going to originate a major civil right. The correct place ELA / T&A consent should be defined is in something like the GDPR -- along with strict requirements as to what standard of consumer free choice is required for it to be enforceable.
- mox1 1y ago
  I would prefer to take it broader and codify it in law that: 1. The terms and conditions of a product, service, etc. "primarily" aimed at a consumer have simple, human readable terms. Like a food label or similar to the broadband label. 2. The terms are presented and acknowledged PRIOR to purchasing (not after opening the package, driving off the lot, putting the DVD into the player). The company needs to find a way to deliver the T&C's before purchase. If you need me to agree to 50 pages things before I can use your product, I didn't really purchase it, I am receiving a license to use it.... 3. If these terms and conditions will be changed retroactively (for existing customers) that must be optional, opt-in and not required to continue to use the product. I think this would stop a lot of the shenanigans companies pull on end users, that they DON'T pull in B2B environments.
  - ryandrake 1y ago
    This still puts the company too much in the driver's seat. An actual "contract" or "agreement" is supposed to be a meeting of the minds between two parties. It's not simply one-sided terms dictated by one party without opportunity for the other party to negotiate. And each party should have negotiating power and choice beyond "take it or leave it". And, before you dismiss this idea with "Ha ha imagine if every cell phone provider had a custom, bespoke, negotiated contract with each customer! It can't be done!" If providing real negotiating power and choice to your customer is too much of an overhead burden, then maybe the company should not be allowed to make the "agreement" a condition for buying/using the product.
    - account42 1y ago
      > And, before you dismiss this idea with "Ha ha imagine if every cell phone provider had a custom, bespoke, negotiated contract with each customer! It can't be done!" This actually already happens to some extend. Nor a different contract for every individual user but my mobile phone plan is not one you can currently purchase from the provider but just available to existing customers who have been upgraded (more data for the same price as the original contract).
msgodel 1y ago
It's arguably a violation of the CFAA.
- kube-system 1y ago
  It wouldn't be a very solid argument. Telematics are universally disclaimed in owners manuals. A good chunk of modern owners manuals are legally-required disclaimers of various sorts which are all deemed valid for those reasons. And a ruling that it doesn't matter because "nobody reads that" wouldn't be a good thing either -- basically that would make most SaaS engineer into criminals.
  - singleshot_ 1y ago
    Further: Safer roads and more convenient travel comport with public policy; and, No one in 2025 has a reasonable expectation they are not being surveilled by their new car. (FWIW, I’m against surveillance transport but there is no reasonable way to say these contracts of adhesion are unconscionable under US law).
    - franga2000 1y ago
      > No one in 2025 has a reasonable expectation they are not being surveilled by their new car. This is not even slightly true. People are barely aware of the fact their car has any connectivity in the first place, let alone that it tracks everything you do in a way that's tied to your real life identity. You're probably, talking mostly to us "techies". Anyone else probably wouldn't be too surprised if you told them, but they definitely wouldn't expect it to be like that.
      - singleshot_ 1y ago
        They don’t have a reasonable expectation of buying a surveillance-safe new car because one does not exist. Other than that I hear you. You’re talking about the reasonable expectation in someone’s head but I’m talking about the possibility even existing in the marketplace. I guess you could argue maybe the reality of the market is trumped by the opinion of a person as to the reality of the market. I’m not sure that makes sense (or that ut doesn’t). I guess you’re saying “they do have that expectation” while I’m saying “regardless of anyone’s expectation, car manufacturers have all addressed the market in a way that makes the expectation false and therefore unreasonable.”
BizarroLand 1y ago
It's not the judges job to bring a case before the court. What we actually need is a Consumer Protection Alliance that is made by and funded by people who want protection from this and are willing to pay for the lawyers needed to run all of the cases and bring these cases before a judge over and over and over again until they win. This would mean people like you and me and a million others of us paying $20-$50/month out of pocket to hire people to sue companies that do this shit.
doctorpangloss 1y ago
The status quo is, as long as clickthroughs don't hurt the consumer then and there, they are valid. Can you imagine if this status quo were upended? Chaos. The end result would be a uniform agreement, kind of like the GDPR, but more expansive, and guess what: the scope of what clickthroughs will permit would be expanded, not constrained. This thing about judges... if you brought a complaint to court that doesn't show any harm, you'll get the opposite result that you want: judges will expand the legality of clickthroughs. This is what happens, without a doubt. Privacy advocates have numerous strategic failures. One is failure to show meaningful harm of specifically the data gathering permissions in these clickthroughs, in any legal venue, anywhere. The harms have always been of other issues, like a data breach, and even then, the harms amount to ones of dollars per person, in places where judges have approved data breach settlements. Another failure is of leadership/education: they cannot communicate the very simple idea to the public that there is privacy in the sense of limiting government overreaching versus privacy in the sense of limiting dissemination of embarrassing personal information. There are so many steps in this privacy mission before the judges.
account42 1y ago
Nullifying the agreement isn't enough because companies will still try to trick people into believing they are bound to it. There need to be actual consequences for even trying such bs - essentially this needs to be recognized as a type of fraud.

ethbr1 1y ago

Absent something like a component of the GDPR, I'd highly doubt the judiciary in any country is going to originate a major civil right. The correct place ELA / T&A consent should be defined is in something like the GDPR -- along with strict requirements as to what standard of consumer free choice is required for it to be enforceable.

mox1 1y ago
I would prefer to take it broader and codify it in law that: 1. The terms and conditions of a product, service, etc. "primarily" aimed at a consumer have simple, human readable terms. Like a food label or similar to the broadband label. 2. The terms are presented and acknowledged PRIOR to purchasing (not after opening the package, driving off the lot, putting the DVD into the player). The company needs to find a way to deliver the T&C's before purchase. If you need me to agree to 50 pages things before I can use your product, I didn't really purchase it, I am receiving a license to use it.... 3. If these terms and conditions will be changed retroactively (for existing customers) that must be optional, opt-in and not required to continue to use the product. I think this would stop a lot of the shenanigans companies pull on end users, that they DON'T pull in B2B environments.
- ryandrake 1y ago
  This still puts the company too much in the driver's seat. An actual "contract" or "agreement" is supposed to be a meeting of the minds between two parties. It's not simply one-sided terms dictated by one party without opportunity for the other party to negotiate. And each party should have negotiating power and choice beyond "take it or leave it". And, before you dismiss this idea with "Ha ha imagine if every cell phone provider had a custom, bespoke, negotiated contract with each customer! It can't be done!" If providing real negotiating power and choice to your customer is too much of an overhead burden, then maybe the company should not be allowed to make the "agreement" a condition for buying/using the product.
  - account42 1y ago
    > And, before you dismiss this idea with "Ha ha imagine if every cell phone provider had a custom, bespoke, negotiated contract with each customer! It can't be done!" This actually already happens to some extend. Nor a different contract for every individual user but my mobile phone plan is not one you can currently purchase from the provider but just available to existing customers who have been upgraded (more data for the same price as the original contract).

msgodel 1y ago

It's arguably a violation of the CFAA.

kube-system 1y ago
It wouldn't be a very solid argument. Telematics are universally disclaimed in owners manuals. A good chunk of modern owners manuals are legally-required disclaimers of various sorts which are all deemed valid for those reasons. And a ruling that it doesn't matter because "nobody reads that" wouldn't be a good thing either -- basically that would make most SaaS engineer into criminals.
- singleshot_ 1y ago
  Further: Safer roads and more convenient travel comport with public policy; and, No one in 2025 has a reasonable expectation they are not being surveilled by their new car. (FWIW, I’m against surveillance transport but there is no reasonable way to say these contracts of adhesion are unconscionable under US law).
  - franga2000 1y ago
    > No one in 2025 has a reasonable expectation they are not being surveilled by their new car. This is not even slightly true. People are barely aware of the fact their car has any connectivity in the first place, let alone that it tracks everything you do in a way that's tied to your real life identity. You're probably, talking mostly to us "techies". Anyone else probably wouldn't be too surprised if you told them, but they definitely wouldn't expect it to be like that.
    - singleshot_ 1y ago
      They don’t have a reasonable expectation of buying a surveillance-safe new car because one does not exist. Other than that I hear you. You’re talking about the reasonable expectation in someone’s head but I’m talking about the possibility even existing in the marketplace. I guess you could argue maybe the reality of the market is trumped by the opinion of a person as to the reality of the market. I’m not sure that makes sense (or that ut doesn’t). I guess you’re saying “they do have that expectation” while I’m saying “regardless of anyone’s expectation, car manufacturers have all addressed the market in a way that makes the expectation false and therefore unreasonable.”

BizarroLand 1y ago

It's not the judges job to bring a case before the court. What we actually need is a Consumer Protection Alliance that is made by and funded by people who want protection from this and are willing to pay for the lawyers needed to run all of the cases and bring these cases before a judge over and over and over again until they win. This would mean people like you and me and a million others of us paying $20-$50/month out of pocket to hire people to sue companies that do this shit.

doctorpangloss 1y ago

The status quo is, as long as clickthroughs don't hurt the consumer then and there, they are valid. Can you imagine if this status quo were upended? Chaos. The end result would be a uniform agreement, kind of like the GDPR, but more expansive, and guess what: the scope of what clickthroughs will permit would be expanded, not constrained. This thing about judges... if you brought a complaint to court that doesn't show any harm, you'll get the opposite result that you want: judges will expand the legality of clickthroughs. This is what happens, without a doubt. Privacy advocates have numerous strategic failures. One is failure to show meaningful harm of specifically the data gathering permissions in these clickthroughs, in any legal venue, anywhere. The harms have always been of other issues, like a data breach, and even then, the harms amount to ones of dollars per person, in places where judges have approved data breach settlements. Another failure is of leadership/education: they cannot communicate the very simple idea to the public that there is privacy in the sense of limiting government overreaching versus privacy in the sense of limiting dissemination of embarrassing personal information. There are so many steps in this privacy mission before the judges.

account42 1y ago

Nullifying the agreement isn't enough because companies will still try to trick people into believing they are bound to it. There need to be actual consequences for even trying such bs - essentially this needs to be recognized as a type of fraud.