4 ms·

Any claim that someone waived their constitutional rights by clicking a button will collapse under even the most mild scrutiny.

click170 12y ago
Is there any precedent for arbitration clauses being thrown out? I didn't think there was (in fact, quite the opposite), and that that's why they've become so common in everyone's EULA. If it had already been shown to be useless, why would they keep trying to use it?
- jsprogrammer 12y ago
  I'm not really considering having a single clause thrown out. The entire concept of someone providing assent through a checkbox is highly suspect. A company will be able to provide no evidence, which will stand up to even mild scrutiny, that I understood and assented to any language that they claim I did. For instance, Facebook is going to bring a database row where they have set `agreed_to_terms_xyz` to 1 into evidence? Maybe, but I will either destroy that argument real quick or I will have Facebook's entire codebase brought into evidence and then tear it apart line-by-line.
  - click170 12y ago
    I agree that the idea of providing assent via a checkbox is highly suspect. But unfortunately I think the law is on their side on this one because: almost ever piece of software that I've seen that presents that checkbox refuses to continue with the installation unless it is selected. Therefor, if you have their software installed and are using it, you agreed to their terms or violated their copyright. I'm not saying I agree with that line of reasoning, I'm just saying that's what I would expect their argument to be. And in court, I think they might unfortunately win with it.
hodag 12y ago
That may well be true, but two things to think about in that regard: 1) You don't have a Constitutional right to have private companies not collect your data. You don't have a Constitutional right to sue those private companies if they use your data in ways you don't like. These may be important things, but they're not in the Constitution. 2) In fact, arbitration clauses are almost always enforceable. Once you check that box and click OK on a contract containing an arbitration clause, it's almost a sure thing that the court is going to enforce it. That's because of the Supreme Court's ultra-rigid interpretation of a law called the Federal Arbitration Act, and it's not going to change anytime soon. You can have a look at http://en.m.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepcion http://en.m.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concep... for an example of how it works.
- sukilot 12y ago
  Note That this is a recent case, decided 5-4 by the George W Bush Supreme Court, so it could be overturned by a future pro-consumer court. Elections have consequences.
- jsprogrammer 12y ago
  1) You have a constitutional right to bring suit against a private company if the amount in dispute exceeds $20. 2) The clauses are meaningless as the problem is with the lack of provable assent.
  - hodag 12y ago
    1) Negative. You do not. What you have is a right to a jury trial in a civil case, where a federal court has jurisdiction , that would have been brought before the courts of law (rather than equity) in England in 1789. In the case of class actions, if you don't have a federal law that authorizes your claim, you actually need $5 million in controversy before you can get into federal court. 2. This is only partially true. Yes, there might be a problem with assent, but it doesn't render the clauses meaningless. As far as I'm aware, so-called "clickwrap" contracts, where you agree to a contract by clicking, suffice to manifest assent in every state. Companies haven't been as successful arguing that they can prove assent based on a tiny "terms of service" link on the bottom of their page that you don't have to click to agree to (sometimes called "browsewrap"), but click-through contracts are pretty much valid. Yes, they're contracts of adhesion with a seemingly unfair power imbalance, but between pro-business judges and the pro-business UCC, this argument doesn't get far.

click170 12y ago

Is there any precedent for arbitration clauses being thrown out? I didn't think there was (in fact, quite the opposite), and that that's why they've become so common in everyone's EULA. If it had already been shown to be useless, why would they keep trying to use it?

jsprogrammer 12y ago
I'm not really considering having a single clause thrown out. The entire concept of someone providing assent through a checkbox is highly suspect. A company will be able to provide no evidence, which will stand up to even mild scrutiny, that I understood and assented to any language that they claim I did. For instance, Facebook is going to bring a database row where they have set `agreed_to_terms_xyz` to 1 into evidence? Maybe, but I will either destroy that argument real quick or I will have Facebook's entire codebase brought into evidence and then tear it apart line-by-line.
- click170 12y ago
  I agree that the idea of providing assent via a checkbox is highly suspect. But unfortunately I think the law is on their side on this one because: almost ever piece of software that I've seen that presents that checkbox refuses to continue with the installation unless it is selected. Therefor, if you have their software installed and are using it, you agreed to their terms or violated their copyright. I'm not saying I agree with that line of reasoning, I'm just saying that's what I would expect their argument to be. And in court, I think they might unfortunately win with it.

hodag 12y ago

That may well be true, but two things to think about in that regard: 1) You don't have a Constitutional right to have private companies not collect your data. You don't have a Constitutional right to sue those private companies if they use your data in ways you don't like. These may be important things, but they're not in the Constitution. 2) In fact, arbitration clauses are almost always enforceable. Once you check that box and click OK on a contract containing an arbitration clause, it's almost a sure thing that the court is going to enforce it. That's because of the Supreme Court's ultra-rigid interpretation of a law called the Federal Arbitration Act, and it's not going to change anytime soon. You can have a look at http://en.m.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepcion http://en.m.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concep... for an example of how it works.

sukilot 12y ago
Note That this is a recent case, decided 5-4 by the George W Bush Supreme Court, so it could be overturned by a future pro-consumer court. Elections have consequences.
jsprogrammer 12y ago
1) You have a constitutional right to bring suit against a private company if the amount in dispute exceeds $20. 2) The clauses are meaningless as the problem is with the lack of provable assent.
- hodag 12y ago
  1) Negative. You do not. What you have is a right to a jury trial in a civil case, where a federal court has jurisdiction , that would have been brought before the courts of law (rather than equity) in England in 1789. In the case of class actions, if you don't have a federal law that authorizes your claim, you actually need $5 million in controversy before you can get into federal court. 2. This is only partially true. Yes, there might be a problem with assent, but it doesn't render the clauses meaningless. As far as I'm aware, so-called "clickwrap" contracts, where you agree to a contract by clicking, suffice to manifest assent in every state. Companies haven't been as successful arguing that they can prove assent based on a tiny "terms of service" link on the bottom of their page that you don't have to click to agree to (sometimes called "browsewrap"), but click-through contracts are pretty much valid. Yes, they're contracts of adhesion with a seemingly unfair power imbalance, but between pro-business judges and the pro-business UCC, this argument doesn't get far.