Technology companies will assert that none of their policies are mandatory — if customers don’t want to accept them, they can close their accounts or decline to sign up in the first place. But many companies have made their services so essential that opting out is not a feasible option, and customers are often presented with new terms at the moment they most need to use a service. Consider how difficult it would be to avoid signing up for a single Google product, let alone to retrieve saved emails or photos, if the account has to be closed quickly.
The foundation of such online contracts dates to when software was sold in a box, and the terms of service inside were considered agreed to when a customer opened the shrink wrap. Ever since a 1996 ruling upholding this notion, companies have tested the limits of so-called shrink-wrap agreements through increasingly creative means, like hiding terms of service behind layers of hyperlinks, burying them in small print, forcing users to agree before they can get access to a previously downloaded app or making the terms binding when a customer simply opens a webpage. Lyft, for instance, informed many customers last month that its terms had changed — a week after the fact.
“We have become so beaten down by this that we just accept it,” said Woodrow Hartzog, a Northeastern University law professor. “The idea that anyone should be expected to read these terms of service is preposterous — they are written to discourage people from reading them.” Contracts are, in theory, meant to be mutually agreeable. How can they be if they’re designed so consumers cannot understand them?
There are signs of waning tolerance to all this. Early this month, a Massachusetts court found that Uber failed to make its terms clear because it had hidden them in a hyperlink on the third page for new customer registrations, with no click-to-agree requirement. Senator Sherrod Brown, Democrat of Ohio, has proposed legislation aimed at improving transparency around privacy policies that govern how consumer data is used. In 2016, Congress made it illegal to include clauses that prohibit consumers from posting negative reviews.
But the burden remains far too great for average consumers. Because courts have largely sided with the tech industry on terms of service rules, Congress needs to act.
Lawmakers should consider instituting rules that require greater transparency around changes to companies’ terms of service and clearer means by which customers agree to them. Burying them in novella-length documents is neither honest nor forthright.
Another smart requirement would be to clearly highlight the changes in a new policy and to include a discussion in plain English about how they will affect regular users, particularly when they have a grievance. If a company’s online service is open to 13-year-olds, as many are, then the terms of use need to be written so an eighth grader can understand them — in fact, such a standard may be warranted for all such user agreements. That would be a step toward informed consent, allowing for the possibility that an eagle-eyed consumer catches something unconscionable.