7 ms·

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.

by 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.
  - jsprogrammer 12y ago
    1) Not sure where you're coming from. If a company has damaged me for more than $20, I have a constitutional right to jury trial against them. 2. It is meaningless in the context of "you violated our language as pursuant to § 12 paragraph 10 sentence 4 clause 2 subsection c item 15" because their language never even makes into the case due to lack of provable assent. Claiming "clickwrap", "browsewrap", "click-through" or any other jargon doesn't help. You will need to provide the full source of the code that was actually ran and show that the user actually read, understood, and assented to whatever language you claim. This is basically impossible on many fronts: a) most companies don't track events in enough detail b) you'll never be able to prove those events actually happened c) even if you can prove that someone actually checked a box and pushed a button, you still can't prove someone actually read language and agreed to it.
    - deleted 12y ago
      [deleted]
    - hodag 12y ago
      1) I'm assuming you're getting that $20 figure from the Seventh Amendment, and while your interpretation seems reasonable and natural, it's not how the Seventh Amendment has been interpreted. First, the Seventh Amendment has never been applied to the states, so it doesn't give you any rights in your state's court. If Massachusetts wanted to amend its state constitution to abolish juries in civil cases in Massachusetts state courts, it could do so tomorrow. As far as federal court goes, it only applies if the court has jurisdiction to hear your case. The Seventh Amendment tells us that you have the right to a jury if you get to trial (in certain circumstances), but it says nothing about whether the court is allowed to hear your case. Jurisdiction in federal courts is granted by Congressional statute (subject to the limits of Article III), and you only have a right to get into federal court if your case falls under one of these statutes. Otherwise, no federal court, and no Seventh Amendment. 2) I wish this were true, but unfortunately it's not. A contract can be valid even if you never read it and you didn't understand it. What's really important is that they can prove that you made an outward and objective manifestation of your assent to that contract. If the website is set up to require you to agree to terms of service before you create an account, then they prove that. Since you've probably already alleged that you created an account when you filed the lawsuit, you're probably stuck. If you read Judge Easterbrook's opinion in ProCD v. Zeidenberg (https://scholar.google.com/scholar_case?case=11811009805458694240 https://scholar.google.com/scholar_case?case=118110098054586...), you can get an idea of how that happens. Again, I think it's shitty, but that's how it works today.
- hodag 12y ago
  I should add that what I'm trying to illustrate here is that arbitration clauses are a big problem. Arbitration is a stacked deck, and consumers always lose. They lose even when they win, since you can only arbitrate your individual claim. The clauses are very difficult to fight in court, and they deprive consumers of rights they don't even know they're giving up. Arbitration effectively allows companies to bilk consumers out of money and then make it so expensive to recover that the consumer (or her lawyer) won't bother. It's legal, and it's constitutional, but damn is it shitty.

by hodag 12y ago

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.
- jsprogrammer 12y ago
  1) Not sure where you're coming from. If a company has damaged me for more than $20, I have a constitutional right to jury trial against them. 2. It is meaningless in the context of "you violated our language as pursuant to § 12 paragraph 10 sentence 4 clause 2 subsection c item 15" because their language never even makes into the case due to lack of provable assent. Claiming "clickwrap", "browsewrap", "click-through" or any other jargon doesn't help. You will need to provide the full source of the code that was actually ran and show that the user actually read, understood, and assented to whatever language you claim. This is basically impossible on many fronts: a) most companies don't track events in enough detail b) you'll never be able to prove those events actually happened c) even if you can prove that someone actually checked a box and pushed a button, you still can't prove someone actually read language and agreed to it.
  - deleted 12y ago
    [deleted]
  - hodag 12y ago
    1) I'm assuming you're getting that $20 figure from the Seventh Amendment, and while your interpretation seems reasonable and natural, it's not how the Seventh Amendment has been interpreted. First, the Seventh Amendment has never been applied to the states, so it doesn't give you any rights in your state's court. If Massachusetts wanted to amend its state constitution to abolish juries in civil cases in Massachusetts state courts, it could do so tomorrow. As far as federal court goes, it only applies if the court has jurisdiction to hear your case. The Seventh Amendment tells us that you have the right to a jury if you get to trial (in certain circumstances), but it says nothing about whether the court is allowed to hear your case. Jurisdiction in federal courts is granted by Congressional statute (subject to the limits of Article III), and you only have a right to get into federal court if your case falls under one of these statutes. Otherwise, no federal court, and no Seventh Amendment. 2) I wish this were true, but unfortunately it's not. A contract can be valid even if you never read it and you didn't understand it. What's really important is that they can prove that you made an outward and objective manifestation of your assent to that contract. If the website is set up to require you to agree to terms of service before you create an account, then they prove that. Since you've probably already alleged that you created an account when you filed the lawsuit, you're probably stuck. If you read Judge Easterbrook's opinion in ProCD v. Zeidenberg (https://scholar.google.com/scholar_case?case=11811009805458694240 https://scholar.google.com/scholar_case?case=118110098054586...), you can get an idea of how that happens. Again, I think it's shitty, but that's how it works today.
hodag 12y ago
I should add that what I'm trying to illustrate here is that arbitration clauses are a big problem. Arbitration is a stacked deck, and consumers always lose. They lose even when they win, since you can only arbitrate your individual claim. The clauses are very difficult to fight in court, and they deprive consumers of rights they don't even know they're giving up. Arbitration effectively allows companies to bilk consumers out of money and then make it so expensive to recover that the consumer (or her lawyer) won't bother. It's legal, and it's constitutional, but damn is it shitty.