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Fundamentally, the court seems to be treating this identically to a scenario where the user was ignorant and failed to read their inbox. The court seems to be c

Fundamentally, the court seems to be treating this identically to a scenario where the user was ignorant and failed to read their inbox. The court seems to be completely disregarding that it was misdelivered into spam. The word "spam" doesn't even appear more than twice in the ruling (one of which is in an irrelevant footnote)! Why the heck is the court completely oblivious to that fact when weighing the facts on each side? You'd think a case hinging on a crucial email being sent into spam would at least mention that fact more than once? (!) The court certainly seems to take into account common practices in every other aspect of the case except that most crucial one... why?! No explanation whatsoever? Would this really survive on a hypothetical appeal? > As Tile users, each Appellee provided an email address during account registration, and should have expected to receive relevant updates there while the account was active. Well yes, they did, but: > Because “there is very little empirical evidence regarding” Internet users’ expectations, the focus of this inquiry is “on the providers, which have complete control over the design of their [apps and] websites and can choose from myriad ways of presenting contractual terms to consumers online.” ...Tile should've expected that its email might go into spam, right? Shouldn't the court at least mention this, even if it doesn't lend it any weight? > Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” and we do not hold that notice by mass email establishes inquiry notice in every case. At least they say their ruling doesn't generalize...

handoflixue 7mo ago
>> You'd think a case hinging on a crucial email being sent into spam would at least mention that fact more than once?! > Broad did not locate the Oct. 2023 Notice until January 2024, when she affirmatively searched for the email and found it in her spam folder. I think it's rather relevant that she affirmatively searched for and found the email?
- dataflow 7mo ago
  > I think it's rather relevant that she affirmatively searched for and found the email? It is. There are lots of relevant facts. Did I claim otherwise?
nickff 7mo ago
Unless the user’s e-mail was controlled by their counter-party, what folder the message ended up in seems to be irrelevant to me. The user is the one who selected the e-mail inbox service provider, and has some degree of control over message categorization.
- noirscape 7mo ago
  That does sound like there's an exploitable element there isn't it? Statistically speaking, most people use one of the biggest email providers, which use their own models to detect spam (or even quietly drop messages). If you're doing an unpopular TOS change, why not set the mail up to still be RFC compliant but in such a way where the mail isn't going to be allowed through by any of the providers. Then you can just claim the problem is userside. For example, the Message-ID header is technically not required (SHOULD rather than MUST), but as a spam detection measure, Gmail just drops the message entirely for workspace domains: https://news.ycombinator.com/item?id=46989217 https://news.ycombinator.com/item?id=46989217
  - hrimfaxi 7mo ago
    Okay and if you did that only for that message your intent would be really easy to prove.
  - dataflow 7mo ago
    The exploitability goes both ways, I think. Users can also mark similar emails as spam to keep such emails out of their inboxes. Not sure how one could deal with that.
- dataflow 7mo ago
  > Unless the user’s e-mail was controlled by their counter-party, what folder the message ended up in seems to be irrelevant to me. No, you're even harsher than the court. The court explicitly looked at common practices by consumers, not just who-picked-what or who-controlled-what: >> Because Tile should have known that at least some of its users do not closely monitor email, and Tile should have furnished additional notices, this factor weighs against finding inquiry notice. The court explicitly said Tile was responsible for making sure people read what it sends, and you're disagreeing with it! Clearly that's relevant! The court somehow just failed to look at the spam classification question at all, which is baffling. They could've looked at the spam classification and said something similar here, yet they didn't. Instead they ruled as if it's the same situation as one where 100% of the problem is due to the user's negligence, which it clearly isn't.
thaumasiotes 7mo ago
> The court seems to be completely disregarding that it was misdelivered into spam. Spam categorization isn't a delivery issue. The delivery is the same whether you, upon taking delivery, toss the message into a bin labeled "spam" or one labeled "inbox".
- quietbritishjim 7mo ago
  I guess it's an instance of a more general principle: sending an email doesn't guarantee it gets to the user's inbox, never mind that it gets read. Even if you are OK with the idea that a user can be presented updated TOS with no option to disagree (I don't, but put that aside for a moment), it should still require a mechanism that actually guarantees (or at least verifies) that the user has seen that the terms are updated. Email is not that. (An unskippable notice on login to a web service would be.)
  - hrimfaxi 7mo ago
    If registered mail is sufficient and that only requires proof of delivery/receipt, why would the same thing for email be insufficient?
    - quietbritishjim 7mo ago
      Email with proof of receipt (e.g. Outlook's read receipts) would be fine. But sending an email and hoping for the best doesn't meet that condition.
      - hrimfaxi 7mo ago
        A read receipt is not proof of receipt but proof that you read it. They are not the same thing. If your office receives registered mail but your secretary threw it away without you reading it, you're still legally served right?
        quietbritishjim 7mo ago

handoflixue 7mo ago

>> You'd think a case hinging on a crucial email being sent into spam would at least mention that fact more than once?! > Broad did not locate the Oct. 2023 Notice until January 2024, when she affirmatively searched for the email and found it in her spam folder. I think it's rather relevant that she affirmatively searched for and found the email?

dataflow 7mo ago
> I think it's rather relevant that she affirmatively searched for and found the email? It is. There are lots of relevant facts. Did I claim otherwise?

nickff 7mo ago

Unless the user’s e-mail was controlled by their counter-party, what folder the message ended up in seems to be irrelevant to me. The user is the one who selected the e-mail inbox service provider, and has some degree of control over message categorization.

noirscape 7mo ago
That does sound like there's an exploitable element there isn't it? Statistically speaking, most people use one of the biggest email providers, which use their own models to detect spam (or even quietly drop messages). If you're doing an unpopular TOS change, why not set the mail up to still be RFC compliant but in such a way where the mail isn't going to be allowed through by any of the providers. Then you can just claim the problem is userside. For example, the Message-ID header is technically not required (SHOULD rather than MUST), but as a spam detection measure, Gmail just drops the message entirely for workspace domains: https://news.ycombinator.com/item?id=46989217 https://news.ycombinator.com/item?id=46989217
- hrimfaxi 7mo ago
  Okay and if you did that only for that message your intent would be really easy to prove.
- dataflow 7mo ago
  The exploitability goes both ways, I think. Users can also mark similar emails as spam to keep such emails out of their inboxes. Not sure how one could deal with that.
dataflow 7mo ago
> Unless the user’s e-mail was controlled by their counter-party, what folder the message ended up in seems to be irrelevant to me. No, you're even harsher than the court. The court explicitly looked at common practices by consumers, not just who-picked-what or who-controlled-what: >> Because Tile should have known that at least some of its users do not closely monitor email, and Tile should have furnished additional notices, this factor weighs against finding inquiry notice. The court explicitly said Tile was responsible for making sure people read what it sends, and you're disagreeing with it! Clearly that's relevant! The court somehow just failed to look at the spam classification question at all, which is baffling. They could've looked at the spam classification and said something similar here, yet they didn't. Instead they ruled as if it's the same situation as one where 100% of the problem is due to the user's negligence, which it clearly isn't.

thaumasiotes 7mo ago

> The court seems to be completely disregarding that it was misdelivered into spam. Spam categorization isn't a delivery issue. The delivery is the same whether you, upon taking delivery, toss the message into a bin labeled "spam" or one labeled "inbox".

quietbritishjim 7mo ago
I guess it's an instance of a more general principle: sending an email doesn't guarantee it gets to the user's inbox, never mind that it gets read. Even if you are OK with the idea that a user can be presented updated TOS with no option to disagree (I don't, but put that aside for a moment), it should still require a mechanism that actually guarantees (or at least verifies) that the user has seen that the terms are updated. Email is not that. (An unskippable notice on login to a web service would be.)
- hrimfaxi 7mo ago
  If registered mail is sufficient and that only requires proof of delivery/receipt, why would the same thing for email be insufficient?
  - quietbritishjim 7mo ago
    Email with proof of receipt (e.g. Outlook's read receipts) would be fine. But sending an email and hoping for the best doesn't meet that condition.
    - hrimfaxi 7mo ago
      A read receipt is not proof of receipt but proof that you read it. They are not the same thing. If your office receives registered mail but your secretary threw it away without you reading it, you're still legally served right?
      - quietbritishjim 7mo ago