
The ‘Terms and Conditions’ Reckoning Is Coming - adventured
https://www.bloomberg.com/news/articles/2018-04-20/uber-paypal-face-reckoning-over-opaque-terms-and-conditions
======
grellas
The basic law relating to online terms and conditions has been stable for some
years now and should remain so. It certainly is not headed for a "reckoning."

When private parties transact business in a free society, the law of contracts
steps in to provide rules enabling them to do so in a well-defined and orderly
manner. Contract law has some fundamental principles that anchor it and,
beyond those, has a vast number of intricacies that potentially can come into
play in individual circumstances. Concerning fundamentals, for most executory
contracts to be enforceable, you need to have mutual consent and some exchange
of consideration. That is, a meeting of the minds on material terms and an
exchange of value. When these elements exist, the law considers a contract to
be binding and imposes legal consequences for any breach or failure to
perform. In order to avoid chaos, it further stipulates that the core
principle (meeting of the minds) is not based on purely subjective factors but
on what a reasonable person would believe in the circumstances. This objective
standard enables commercial transactions to proceed without endless second-
guessing about what the parties might have desired or meant when they
contracted in any given transaction. Because of this, while it can easily
become messy in any given case, most contract situations can be legally
evaluated with a fair degree of certainty and parties can plan their affairs
and determine their rights accordingly.

The above describes what might be called a very high-level summary the central
tenets of the common law of contracts in the Anglo-Saxon legal tradition. If
someone reasonably can be said to have consented to a given transaction
involving some exchange of value, legal rules applied to govern how that
exchange took place and what would happen if some breached his or her
agreement.

When it comes to terms and conditions in online commerce, the law generally
applies this body of contract law but does so via what might be called the
_fiction_ of mutual consent between the contracting parties. It is well known
that the vast majority of persons do not bother to read such terms and
conditions when they click on the "Agree" button. Nonetheless, the terms and
conditions are legally binding upon such persons. Why? Because it is _assumed_
that the person read and understood them in clicking. And that assumption is
what makes it a fiction. In effect, the law says, "we will pretend that the
person read through the terms and knowingly agreed to them." Given that this
legal fiction effectively substitutes for a true consent, the law can proceed
along its merry way and treat this contract as it would any other, i.e., treat
it as binding and enforceable upon the "contracting" party. In effect, to
preserve orderly rules of contract in such transactions, the law effectively
says that the terms and conditions are legally binding if they are such that a
reasonable person who had taken the time to read through them would have
understood them to have a certain meaning (that is, the "reasonable person"
meaning that the law will enforce upon the person doing the clicking).

This fundamental approach to terms and conditions in online transactions has
not changed one bit in some years and is under no risk of being changed.
Because, without it, you could not practically have any semblance of legal
orderliness in online transactions.

Moreover, while it is often said that dense legalese is undesirable in such
situations, courts generally enforce such legalese without hesitation, even if
a complaining consumer says until he is blue in the face that it could have
been put in easier-to-understand plain English. There is no legal rule that
requires contractual language to be put into plain English and there are some
types of contracts where an attempt to express the legal requirements in that
way would cause a loss of precision or lead to other problems. Whether
something is expressed in plain English or not, then, typically does not
affect its enforceability in online transactions.

Again, nothing pervasive is happening in the law affecting online transactions
so as to require use of plain English to make terms and conditions
enforceable.

None of this is to say that there are no protections in existing law when
people try to use weasel language to defraud others or use language that is so
imprecise as to mislead consumers or use language that is so ill-defined or
vague as to leave important matters uncertain to the other contracting party.
In all such cases, existing common law has remedies of varying kinds to say
that such contracts are unenforceable or that some remedy applies in favor or
an aggrieved or defrauded consumer. But, in practice, these are edge cases,
the ones that wind up in dispute or in court. The vast bulk (99%+) of the
commerce that occurs is covered by the general contract rules and proceeds in
an orderly way because the rules are known and predictable.

Against this background of the common law contract rules, it is possible for
persons to want to modify the existing rules on grounds that such rules are
unfair to the consumer and or are not based on true consent by that consumer
or for some other public policy ground.

This is where special public-policy-driven enactments come in to modify the
standard contract rules. Legislatures can adopt special laws dictating outer
bounds to how businesses can use the private data of consumers as such data
may entrusted to them. In this area, perhaps, a form of "reckoning" may occur
if it is determined that companies such as Facebook ought not to be able to
sell or misuse private data to the detriment of their users. This is an
important development and serious changes may be afoot affecting such special
areas. But this does not affect the general principles by which online
contracting occurs.

There could also be proposals mandating that plain English be used in terms
and conditions or requiring this or that form of mandated disclosure to help
ensure greater consumer understanding but all such proposals come with decided
trade-offs that typically make them impractical. The reason for the fiction of
legal consent in the current system is the supreme utility that comes from
allowing millions of online transactions to occur every day without incident
based on orderly rules known to all. You can change all that through
legislative enactments saying that public policy requires a different system
that is more fair to consumers. But at what price? That is why the current
system is and remains solidly in place.

To underscore the importance of utility, I have been legally trained and have
years of experience such that I could easily read through and comprehend the
legalese that is found in most online terms and conditions. Yet, with rare
exceptions, I am just like everybody else and will click "Accept" or "Agree"
without reading anything and without a second thought. As a lawyer, I can't
say that I am proud of this but I can say this is human nature. The issue is
not primarily that legalese or plain English will make a difference in
understandability. It is that we take the path of least resistance when not
much is at stake and we don't want to be bothered. Try as we might, no law
will solve that problem.

~~~
microDude
No offense, the length of your comment reads like a Terms of Service Contract.

~~~
hshehehjdjdjd
Was a time long, thoughtful, informed comments on this site garnered plaudits
rather than gripes. Considering this is one of the only informed, reality-
based comment in the entire thread, I think it’s best to engage with and
appreciate it, rather than making easy jokes.

~~~
occamrazor
I’ve read your entire comment and still think that the GP is an appropriate
joke. You gave a good overview, in clear language, trying to be as concise as
possible. The result us still quite long, in fact I guess it is long enough
that most commenters won’t read it in full, just like a typical T&C document.

Contracts are long for good reasons, but excessive contract length _is_ a real
problem.

~~~
18pfsmt
The US is set up to be regulation-lite and litigation-heavy. As such,
contracts tend to be rather encompassing, lest they be vulnerable to
litigation.

You also seem to be missing that your parent and the GGP are not the same
account. The original comment was written by grellas, a longtime HNer and
valued contributor. I doubt grellas runs sockpuppets considering he had a YC
connection at one point, IIRC.

------
mhneu
Yes. There are two separate issues here, I think.

1\. When corporations "negotiate" with consumers, this is an abuse of the
legal system. Contract law was conceived for situations where both parties
have at least some amount of negotiating power. Handing a consumer some long
contract written by a set of well-paid lawyers, and asking them to sign it or
walk away from any benefit from a product, is not the kind of contract we want
in our society. In the past, we've used group association - collective
bargaining, class action lawsuits, etc. - to solve this problem of many
consumers, each with almost no power, negotiating with a big corporation with
all the power. Arbitration clauses, and non-competes, are often examples of
abuse of this power imbalance. This situation is the kind of thing government
exists to do - solve problems for its citizens by working collectively. So
perhaps regulation is also a remedy.

2\. Informed consent, vs. terms-and-conditions consent. Click-through
agreements with many pages, written by a legal team, in which the alternative
for the consumer is to walk away, cannot be seen as _informed_ consent by the
consumer. When Facebook asks users to click "yes" for disclaiming privacy
rights, that's not informed consent. We already have a definition of informed
consent in scientific experiments, and it requires understanding every word of
the consent and no penalties for saying no. (If a scientist offers subjects
$10 for participating, the scientist _must_ pay that $10 to anyone who
declines the consent form.) Consent forms must evolve to match informed
consent in science.

If as a society we deal with these two issues, we'll be in a much better
place, and we'll be dealing with wealth concentration (into the hands of
corporations), a key issue for our time.

~~~
mhneu
One other comment for non-lawyers here:

When two companies negotiate a contract, typically what happens is this. One
team of lawyers drafts the contract. They send it to the other lawyers. Both
business teams consult their lawyers, and the lawyers update the contract with
their desired changes. Then the first company comments on desired changes and
they negotiate.

The result, after perhaps many rounds of negotiation, is often a far different
contract than was originally proposed.

That is NOT what happens with consumer terms and conditions agreements, or
cell phone contracts. There, the company's lawyers draft a contract that is as
favorable to them as is legal. The consumer does not have the legal team or
negotiating power to push back: their choices are to sign, or to walk.

These quite different contract processes are worth thinking about. Is this the
way we, as a society, want contract law to be used?

~~~
brazzy
> There, the company's lawyers draft a contract that is as favorable to them
> as is legal.

In fact, they will frequently put in clauses that are known to be invalid,
hoping that customers simply cave in when shown the clause.

~~~
TheCoelacanth
Sometimes I wish that severability clauses were not allowed in contracts of
adhesion so that lawyers would be forced to only include terms that were
actually enforceable or else have the entire contract become invalid.
Obviously it wouldn't work very well if even a small mistake made in good
faith could invalidate an entire contract, but the problem of companies
hoodwinking customers with unenforceable terms has gotten out of hand.

------
mooneater
True of legalese in contracts, but also Law in general has multiplied like
Gremlins.

Hammurabi's code of laws, was written in common language, and was brief enough
every subject could understand them.

It makes no sense that we should be subject to a volume of law that we could
never even read, let alone understand.

Musk is correct in insisting that laws should expire, and it should be easier
to remove a law than add one. Minimum Viable Law.

Long ago lay people had no idea what the bible said because they could not
read Latin. Well lawyers are the new priests, legalese is the new Latin.

~~~
kbenson
Do you think allowing programs to be specified in plain English is a good
idea?

We have "legalese" for the same reason we have programming languages. Terms
have specific, sometimes slightly different or more narrow meanings to promote
better understanding of intent in languages meant to specify a set of rules.

Specifying laws in "plain English" makes about as much sense to me as
programming in English. You'll quickly find that for all but the most trivial
of things the ambiguity of the language works against you.

~~~
mieseratte
> Do you think allowing programs to be specified in plain English is a good
> idea?

The difference is that one is expected to consent and be beholden to something
they could not reasonably understand without paying a large amount of money to
a specialist.

That I write my code in brainfuck is of no consequence to someone, unless that
brainfuck is potentially going to incarcerate them.

~~~
kbenson
> That I write my code in brainfuck is of no consequence to someone, unless
> that brainfuck is potentially going to incarcerate them.

If you write software to control medical equipment in Brainfuck, it's
potentially of consequence to a great many people. Same for autonomous driving
routines.

 _Trying_ to make things clearer is a good cause. Expecting that everything
can be made clear enough for the average person is a fool's errand.

Do we expect the circuit layouts of CPUs to be understandable by everyone?
Because we are surely affected by those, in very many aspects of our lives.

Do we expect the full engineering and aeronautics behind an airplane to be
understood by everyone? Everyone who flies puts their lives on the line based
on those principles and the engineers getting it right.

Do we all expect to understand the numerous ways in which our bodies can get
hurt, or interact with chemicals, or develop diseases? We trust doctors to
figure out the complications there.

In each case, we've trusted _domain experts_ to sort through the very complex
topic and distill the knowledge into a useful form for us. In each case, we
also generally know a core amount of the topic to help us navigate the
everyday portions. CPUs work by providing a very low level core set of
instructions that can be followed. Airplanes work through thrust, airflow and
lift. Our bodies deteriorate over time, and if we put bad stuff in, they don't
do as well, and some common diseases are known (cold, flu, etc).

The law is no different. There's a core set of things people are aware of. As
things become more specific, or a problem happens, we call in domain experts
to help.

Expecting everyone to be able to read all of the legal code will never happen,
nor should it happen. It's expecting too much out of the average person, and
would also require the law be dumbed down in ways that were detrimental to
it's interpretation.

~~~
mieseratte
> The law is no different. There's a core set of things people are aware of.
> As things become more specific, or a problem happens, we call in domain
> experts to help.

Using Brainfuck is an extreme example but you're taking it to its logical
conclusion - off a cliff.

The difference is, the law affects and is applied to everyone. Contracts can
and do affect the average person. However, only a domain expert has do deal in
code.

We do not expect or require a normal person to read a 5,000 LOC piece of
software, or risk giving up rights to participate in everyday society.

> Expecting everyone to be able to read all of the legal code will never
> happen, nor should it happen. It's expecting too much out of the average
> person, and would also require the law be dumbed down in ways that were
> detrimental to it's interpretation.

I'm certain we can put together a reasonable "tl;dr" requirement for contracts
targeted at the layman, e.g.

"""

\- You may use this application (See: Section A)

\- You will pay X per month (See: Section B)

\- Late fees may apply (See: Section B, Sub-Section 2)

\- We may collect user data (See: Section C)

\- We may sell user data (See: Section D)

\- We reserve the right to update the terms of the service (See: Section E,
Sub-Section 1)

\- We reserve the right to cancel service for any reason (See: Section E, Sub-
Section 2)

"""

Make the tl;dr non-binding so long as a reasonable person, a typical legal
standard, would understand the legalese to have the outcome.

One need not write a "literate contact," nor abandon all of our legal history,
terms of art, etc. to improve things to make them more approachable for a
normal user.

~~~
kbenson
I have absolutely no problem with trying to make legal documents, contracts,
TOS, etc more readable by providing _additional_ information. I just think the
idea of _replacing_ what we have with something _more_ like regularly spoken
English would be problematic at best, because a lot of the problems we have
with interpreting the law are because it's so close to an actual spoken
language, and Human languages thrive on ambiguity.

------
dawnerd
One thing I’d like to see outlawed is forced arbitration. Waiving someone’s
right to a lawsuit is just wrong and only serves to benefit the company.

~~~
flother
They're outlawed in some countries, notably in Europe.

EU rules presume pre-dispute arbitration clauses in consumer contracts are
invalid. France and Sweden completely prohibit consumer arbitration in certain
cases. Germany won't enforce a consumer arbitration clause unless it's in a
separate, signed document or part of a fully-notarised contract.

Lots of information available at [https://www.hausfeld.com/news-
press/mandatory-arbitration-in...](https://www.hausfeld.com/news-
press/mandatory-arbitration-in-the-united-state-and-europe).

~~~
jkaplowitz
As another example, Quebec has similar rules for consumer contract. They also
forbid contracting for a different choice of law, and unless through a
notarial act (in the civil law sense of notary rather than common law notaries
public), also forbid stipulating a different domicile to avoid the
jurisdiction of their local courts.

Just like with your European example, none of this applies to business-to-
business contracts.

------
bobm_kite9
What I want is a standardized set of icons, which grant or deny specific
things, that all websites can agree on, sort of like the ones available for
software licensing, here:

[https://creativecommons.org/licenses/](https://creativecommons.org/licenses/)

It would be great if we could "standardize away" the whole T&C fiasco.

~~~
mmcconnell1618
We have standardized nutritional labels in the United States and I would like
to see a similar standard for terms and conditions. Icons could be part of it
but also leave room for text and listing of what common data (email, ip, name,
etc.) the service will collect and how they will use it.

~~~
kenning
This is a great idea

------
ams6110
> If a typical user wouldn’t understand the documents, the consent that
> companies rely on for their business activities would be legally invalid.

I like that standard, seems to comport to the "meeting of the minds"
requirement for a valid legal agreement/contract.

~~~
dvdhnt
I totally agree. The terms and conditions, or some offering of them, should be
available in the same way that quick start or full guides are - in a form that
adds to the usability of the service. E.g. "when you upload a photo, ____ owns
the photo, for _____ period, and may do a, b, c, and d with it"

~~~
amarkov
The problem is that legal terminology doesn't always match conventional
descriptions of what's happening.

Copyright is actually a perfect example of this. In order to send my photo
over the Internet to other people who want to view it, you need much more than
the legal right to display my picture. Sending a picture over the Internet
involves copying, distributing, and sublicensing the image countless numbers
of times. So any site with user-uploaded content will have something very
close to (Imgur's for reference):

> With regard to any file or content you upload to the public portions of our
> site, you grant Imgur a non-exclusive, royalty-free, perpetual, irrevocable
> worldwide license (with sublicense and assignment rights) to use, to display
> online and in any present or future media, to create derivative works of, to
> allow downloads of, and/or distribute any such file or content.

There's no way the typical user will understand this, but that's not because
it's obfuscated. The typical user just doesn't have the background to
understand what all these rights are or why Imgur requires them. It would be
severely misleading to write the literal meaning in layperson's terms:

> When you upload pictures, you have to give us the right to make as many
> copies of the pictures as we want, modify them however we'd like, and send
> those copies to whoever we want anywhere in the world.

~~~
some_guy_there
> When you upload pictures, you have to give us the right to make as many
> copies of the pictures as we want, modify them however we'd like, and send
> those copies to whoever we want anywhere in the world.

But isn't it precisely what the legalese means? I mean, unless otherwise
restrict by some law other than the copyright laws, Imgur can use those images
for anything. The statement does not limits the use to "reasonable business
activities". Why will it be severely misleading to write it that way?

~~~
amarkov
It's precisely what the legalese means, and carries connotations which are
absolutely nothing like what Imgur intends. They claim unlimited rights not
because they don't want to be bothered to restrict them, but because the
structure of the Internet makes it impossible to write a simple description of
when copies will be made.

They could try going into detail:

> We can send copies of your image to anyone who, following standard Internet
> routing protocols, says that someone has requested to see the image and
> promises to forward the copy onwards to the original requester. Anyone we
> send the image to can also create copies themselves following this rule, and
> can temporarily store the copies as needed to make further copies.

But then neither the average Joe nor lawyers are going to be able to
understand it.

~~~
some_guy_there
> which are absolutely nothing like what Imgur intends

But how do we know this? If they intend something, they should write that down
in the contract. I am having hard time imagining that their lawyers cannot
draw a contract which waives only the copyright requirement for the purposes
of image hosting and restricts the images from being used for other things.
The principle of charitable interpretation tells me to believe what
people/company write in their contract. In my opinion, the expansive
definition in the contract is there to

a) Save their ass when they do something which does not seems kosher to the
public.

b) Allows them to pivot to other use of the data which might have nothing
related to their current business model.

c) It is cost effective to draw up the contract in this way, given the current
legal system and its requirements.

Note that I am not saying that Imgur is doing something immoral or whatever. I
am just saying that if they wrote down this

> When you upload pictures, you have to give us the right to make as many
> copies of the pictures as we want, modify them however we'd like, and send
> those copies to whoever we want anywhere in the world.

as the simplified legalese, that it is the current interpretation. I contend
that the average Joe will have better understanding of the _current_ contract
with the simplified statement. I also think that Imgur (and other services)
will find money to draft a better contract if they were required to make a
simplified language version.

~~~
amarkov
Again, it'd definitely be possible to write a document more narrowly
describing what they need a license to do. But that doesn't solve the problem.
The updated version would be more readable for network engineers, less
readable for lawyers, and still incomprehensible to the average person who
just wants to upload a meme.

~~~
Jasper_
"Hi. When you upload an image to imgur, we need the legal right to distribute
it to other people. We also process your image to look right on different
devices, which requires the legal right to modify your image. We promise not
to distribute or modify your image beyond what we do here at imgur.com, and
won't sell it to other people"

Seems easy enough to write.

------
grabeh
I would make a few points:

\- I don't think legalese is the issue. Even if you wrote terms in plain
English they would still be at a similar length if you wanted to capture the
same content of the base terms, and people would still not read them. I don't
think there is a high proportion of people who are put off by legalese but
would read terms if they were in plain English

\- the article has a GDPR bent. Certainly when it comes to uses of personal
data, that should form a bigger part of the sign-up experience and be
separated out from the main terms.

\- when you are looking at general terms & conditions outside of privacy,
European consumer law and I imagine most consumer law protects customers from
unreasonable actions by corporations toward consumers. It allows the user to
assume the company will behave reasonably towards the consumer, and is
arguably the appropriate remedy to cure the issue of over-long terms &
conditions.

\- There is of course limited scope to this and there will be a range of
transactions where you are not acting as a consumer and are expected to
thoroughly understand the full implications of the transaction you enter into.

\- the reckoning in the article is already one partially addressed by the
above steps at least in the European Union around consumer law protections,
and requirements on the data protection side to call out data uses in the
sign-up process rather than bury them in the terms.

------
dyladan
>”I don’t think the average person likely reads that whole document.”

This is my favorite quote in the whole article. Sums up the pompousness of the
company quite nicely I think. This is one of the largest companies in the
world. The quote could easily have been “we go to great lengths to make sure
that’s the case,” or “that’s the point, grandpa.” At least it wouldn’t have
come across as dishonest and cowardly that way.

~~~
jve
That is actually quite honest. Do you read temrs for all services? Or do you
read terms at least for most important services?

If you do, great. Many don't and just complain or are surprised when they
learn what almost every service on the web does with his data.

~~~
aesh2Xa1
OP is saying that it is actually the intent of the company that the end user
does not read the ToS; it's an accusation that the quote demonstrates
deceptive intent and therefore not honest in a way you haven't considered (in
your response).

------
komali2
>Martin Garner, an analyst at technology consultancy CCS Insight, suggests
companies walk readers through their policies step by step. That way they
could opt out of selected provisions—limiting, for instance, third parties
that can gain access to the data or restricting the kinds of information
companies may stockpile.

Merging t&c with settings... I like this idea a lot. Privacy controls with the
agreement right there. You and the website clear on exactly what the
relationship is.

Gonna bring this up during checkin today.

~~~
gizmo385
> That way they could opt out of selected provisions—limiting, for instance,
> third parties that can gain access to the data or restricting the kinds of
> information companies may stockpile.

Am I understanding this incorrectly or are you suggesting that we allow people
to selectively opt-out of portions of a T&C document? Because good luck
getting any legal department to buy into that whatsoever.

~~~
komali2
More like, it would look like this:

1\. You agree to allow us to share your email address with 3rd parties (have
useful targeted advertisements? y/n)

2\. You agree to allow us to parse your messages internally (enable auto-reply
suggestions in messages? y/n)

Something like that.

I mean I think there would still be "hard-coded" T&C, "standing order" type
things you agree to just by using the app at all. Like, not uploading goreporn
or something.

------
ben_w
> If a typical user wouldn’t understand the [user agreement documents], the
> consent that companies rely on for their business activities would be
> legally invalid.

I’ve not had time to read the GDPR, so this is news to me.* Especially
surprising, because it’s exactly what I want the law to say, and I’m not used
to that.

I’d also like that principle to apply to the law as a whole, but I appreciate
that’s as much wishful thinking as hoping to read and understand the full
source-code of everything on my phone.

* fortunately not my problem, family matters replaced the day job.

~~~
SketchySeaBeast
If agreement for a contract requires easily understood English, what does that
mean for my mortgage?

~~~
chrisBob
I don't typically have my lawyer review the TOS of each website I sign up for,
but I _did_ have him review my mortgage. Everyone picks a different place to
draw the line between careful understanding (or hiring out a review from
someone with careful understanding), and just blindly signing on the dotted
line.

For me that is somewhere between purchasing a tractor and purchasing a house.
The point is the no sane person includes Netflix in the "needs careful review"
category, but I sincerely recommend that everyone take their home purchases
seriously.

~~~
howard941
Curious if you tried to change any of the boilerplate terms and if you did,
how did it work out?

~~~
ben_w
A friend of a friend changed the “we will send you advertising” into “we will
not send you advertising”, then when the bank sent them advertising anyway
they demonstrated that the bank manager had signed the changed document and
therefore the bank was in breach of the mortgage contract and technically they
could keep the house without paying for it.

For whatever reason, they then said it would be fine if the bank never sent
them more advertising rather than actually trying to get a free house.

For a slightly more reliable story, Argakov v Tinkoff seems fun. At least the
first round, the reports I’ve seen are a bit dated and further escalation and
retaliation may be less fun.

~~~
howard941
Pity there wasn't a free house but I shouldn't be surprised. Thank you for
sharing both stories.

That Argakov one is particularly spooky with the viable death fear. From the
first hit I could find: “Our lawyers don’t think [Agarkov] will get 24 million
rubles, but four years in prison for fraud. _Now it’s a matter of principle_
for @tcsbank,” Tinkov added. ( from [https://www.rt.com/business/tinkoff-bank-
agarkov-credit-299/](https://www.rt.com/business/tinkoff-bank-agarkov-
credit-299/) )(empasis mine)

Oh boy. When the fight become principled it's time to fire the client xxxxx
refer the client out to someone else

------
alex_young
How can PayPal rationalize closing accounts because users opened them years
ago when they were too young? Is that really an issue for a 28 year old?

Contract or no, PayPal looks really bad here. One would think they would be
looking for good will rather than this kind of press in such a competitive
market.

~~~
jschwartzi
Yeah, why wouldn't they just contact her and lock her account until she re-
signs? That way they both win. She's clearly of legal age now and penalizing
her so severely for something she did as a child is really unnecessary.

When my landlord discovered she didn't have a rental agreement on file for the
garage space I was renting from her she didn't evict me, she left a note on my
door.

~~~
jstarfish
There are financial incentives.

Paypal is a lot like shady ad networks in that they let you accrue a balance
while waiting for you to do something they can justify terminating you for.
When that happens, they lock you out and keep your money.

Unlike your landlord, Paypal profits from eviction.

------
methodover
Facebook's Privacy Policy, Terms, and Principles are actually written in very
clear, plain language. I've read them. They're easy to understand.

I was frustrated by Senator Graham's remarks because he absolutely could
understand them, if he bothered to read them. (He said that he didn't
understand them.)

The problem though, isn't the Terms. It doesn't matter how plainly written
they are. People won't read them.

What matters is designing your product with correct privacy affordances. Put
yourself on the shoes of the user, and make sure your app isn't sharing
information in a way that would be jarring or unexpected.

For example, Facebook made a mistake with its posting dialogue experience pre
2016. You could say that a post should only be shared "with friends" in a
choice box next to your post. However, that post would also be shared with any
apps your friend has installed. That's probably not what the posting user
would have expected, so it's a poor experience.

If you have inadequate privacy affordances, you shouldn't just hide behind
your terms. That's the point.

Edit: I don't understand why I'm being downvoted. If you disagree with
something, please let me know. I'm designing our own privacy affordances in
our app following the above thinking, after all...

------
anoncoward1234
Seems to me this is easily fixed.

If a jury of peers cannot understand the legal contract during an arbitration,
rule in favor of the signor of the contract and against the writer.

You'll see that shit disappear with a quickness.

~~~
imglorp
This is a great idea but I don't think it goes far enough.

It means that 12 lay people can eventually, after some coaching, study, and
debate, understand a contract. Or one lawyer, presumably.

The problem remains though, that one lay person needs to understand it without
study or coaching, and without taking days to do so. Most of us have probably
clicked through hundreds or even thousands of EULAs and other crap without
having days to understand each one. Every app, every shrinkwrap, your toaster,
and even the bloody nav on your car with its OK button: there's just too much.

~~~
TheCoelacanth
The jury should get as much time to read the contract as the average user
spends reading the contract and should not get the help of a lawyer. If the
company doesn't collect data about how much time users spend reading the
contract, then it should be presumed that they didn't read it at all and then
only terms that the jury can guess would be in the contract without reading it
should be valid.

------
tzs
> Waving a 2-inch-thick printed version of the social network’s user
> agreement, Senator Lindsey Graham quoted a line from the first page, then
> intoned: “I’m a lawyer, and I have no idea what that means.”

Anyone have a link to that document? Looking for the terms I'm supposed to
agree to if I want to use Facebook as an ordinary user, I find this page,
which purports to link to everything [1]. Looking at the "Statement of Rights
and Responsibilities", the "Data Policy", and the "Community Standards", I
don't see anything that would take 2 inches when printed. Those seem to be
most of what would be necessary for an ordinary user to agree to.

There are several links to other terms and policies and such on the left, but
those are mostly for things like developers, payment handling, and other
things that that an ordinary user would not need to agree to.

[1] [https://www.facebook.com/policies](https://www.facebook.com/policies)

~~~
cestith
Perhaps a more pertinent question is whether or not Lindsey Graham understands
and expects every American citizen and resident to have read all 51 titles of
the US Code and all of the Code of Federal Regulations which carry the force
of statutory law by inclusion.

------
solomatov
IMO, this is a question of consumer protection. It's ok to provide complicated
contracts to corporations who can afford to hire lawyers, but it's not ok to
do so with consumers. If we make a requirement that for consumer products,
contract should be now longer than 1 page written in a language understandable
by 10 year old, it will solve problem.

~~~
jstarfish
I like the elevator pitch approach.

If you can't explain your T&S in as many words as it takes to explain your
product, one or the other needs to be revised.

~~~
solomatov
It sounds good in theory, but in practice there're aspect which prevents it
from being applicable. See here:
[https://news.ycombinator.com/reply?id=16886176&goto=threads%...](https://news.ycombinator.com/reply?id=16886176&goto=threads%3Fid%3Dsolomatov%2316886176)

~~~
jstarfish
Yes, you have a valid point.

The one I was more trying to make is that a product should not be simply
marketed as "a platform for sharing pictures with your friends" if it is
actually "a platform for sharing pictures with your friends in exchange for
your participation in unspecified and ethically questionable social
experiments."

The T&S can stay the same for all I care, I just think companies shouldn't be
able to hide behind them when they dramatically oversimplify the nature of the
product in the process of selling or promoting it.

------
TangoTrotFox
There is one thing I'm curious about. Imagine Facebook's terms stated: _" We
will scrape any and all information we possibly can from you. We will use it
in any and all ways we see fit. You agree to never sue us for anything
whatsoever. We also have the right to do whatever we want to your account for
any reason we want. We can also add or remove anything from these terms at any
time and for any reason we like without telling you, and with immediate
effect."_ That is probably a fairly reasonable cliff notes of their actual
terms. Would this actually deter anybody from using their software?

In other words, are companies piling on the legalese to protect themselves or
to deceive users? Maybe I'm overly cynical but I think even those terms would
not really stop any meaningful number of people from signing up.

------
jgh
Why is obfuscating the intentions of a document in dense language most people
can't properly understand a thing that's allowed to be upheld? They might as
well write the damn things in Esperanto for all they're worth to most of the
folks who click agree.

~~~
ams6110
I can only think it must be analagous to why programs have a lot of features
people don't understand or use. Git might be a case in point. Smart
programmers think of every possible edge case and "what if" and try to cover
all those things. The result is a confusing mess for people who just want to
get the "happy path" work done.

Lawyers try to think of every interpretation and circumstance and try to be
sure the agreement addresses those unambiguously. Ironically, the dense
language that results is anything but unambiguous to the untrained reader.

------
igammarays
Just like an underage person or drunk is unable to give consent, it should be
illegal to coerce an average Joe untrained in the law to agree to a 50-page
document filled with legalese, unless you pay for them to be advised by a
lawyer.

~~~
liberte82
When exactly did it enter the public consciousness that drunk people are
unable to give consent? I feel if this is true, there are many drunken hookups
that become questionable. I'm in my mid-30s, and I feel this concept wasn't
really a thing in my clubbing days.

~~~
ams6110
Obama's 2011 Title IX "Dear Colleague" letter was a big part of it,
establishing the lowest standard of proof in claims of sexual assault on
college campuses. Schools responded by saying, effectively, that if you have
sex with someone who's had a drink, and that person later regrets it,
regardless of what they might have told you at the time, you have no defense.

It's all ridiculous because universities have no competence in investigating
or adjudicating such claims, but that's another topic.

So anyone who was in college in the past 10 years will have had drummed into
their heads that there is no consent possible by an intoxicated person.

~~~
AnthonyMouse
> So anyone who was in college in the past 10 years will have had drummed into
> their heads that there is no consent possible by an intoxicated person.

Which creates all kinds of weird outcomes when both parties were equally
drunk.

~~~
haZard_OS
Well, it would if logic were the overarching guideline on these topics.

As it stands, the male is presumed guilty on college campuses when both
parties are drunk and he must then meet a draconian burden of proof to
extricate himself from the situation.

At least, that has been my experience.

------
zmmille2
I see a lot of people talking about Terms of Service being too long. This is a
problem for governments as well: How many laws do you think apply to you right
now? How long do you think it would take for you to understand exactly what
you can and cannot legally do? Do you think the average police officer, or
even federal agent, has a full understanding of those laws?

I hope that this is a problem that we can fix in the future.

~~~
Finnucane
Sure, we're covered by many laws, but also many rights--the right to fair
trial, the right to legal representation, the right to petition the
government, and so on. If a law is poorly or vaguely written, it can be
challenged on those grounds--many laws are tossed as unenforceable.

But when you click on a user agreement, there's no negotiation or possibility
of redress. Take it or leave it, and they just cut you off if they feel like
it. The comparison to laws is nonsense.

------
Digit-Al
The thing nobody seems to be talking about is 'why do we need all these
complex Terms & Conditions anyway?'

If I buy a fridge I don't need to read and agree to reams of T's and C's
before I can use it. The same with a toaster or an oven or a washing machine.
If I buy a knife I don't have to agree to indemnify the manufacturer if I kill
someone with it. What's so special about software?

I'm starting to think that there should be an agreed set of national (or maybe
even international) software indemnifacations covering anything that is agreed
to be considered a sensible exclusion.

Any software use could then be covered by the relevant law with no need to
read a new set of terms for everything.

Any company trying to add their own terms on top of these could then be
considered with much caution or suspicion.

Hopefully they would be written better than this was, but I hope I have got my
point across.

~~~
dredmorbius
Have you looked at user agreements, warrantees, and software licences that
come with appliances lately?

Often not revealed until accessing via some interface, or being modified on
software upgrades.

------
everyone
As far as I'm aware those type of contracts do not hold up in court. (At least
here in Ireland) Its well known by both parties that in 99% of cases the
consumer will just click 'agree' without reading it in order to get access. So
as far as the judge is concerned it doesnt exist.

~~~
dhimes
Zuckerberg admitted as much.

------
tzs
I think the legalize issue is a bit exaggerated. Yes, many (too many) sites
and companies have a lot of legalize in their terms...but there are also many
that do not. Nevertheless, as far as I've seen people aren't any more likely
to read the latter, or any more likely to understand them if they do read
them.

I think there are two main factors that make people not read these things.

First, as Joel Spolsky noted in his writings on UI design, "In fact, users
can’t read anything, and if they could, they wouldn’t want to" [1]. He does
not mean, of course, that users literally cannot read. They just act like, at
least when you are trying to get them to read something that they didn't
actually ask to read.

Second, terms and conditions tend to be long, and because they want to be
precise tend toward more complicated language and structure. That's going to
lose a lot of people.

[1] [https://www.joelonsoftware.com/2000/04/26/designing-for-
peop...](https://www.joelonsoftware.com/2000/04/26/designing-for-people-who-
have-better-things-to-do-with-their-lives/)

~~~
paulmd
I mean, you could rewrite the same contract in plain english ("heads we win,
tails you lose") and it wouldn't make it any less exploitative. The legalese
is not the real issue there.

------
doomslice
I've been thinking of writing my own Terms of Service for my cryptocurrency-
related web startup -- with plain and clear language that the average person
should be able to understand. Several people have advised me that this is a
horrible idea and that I should enlist the help of a lawyer to write it
instead.

Some things I want to protect myself against:

\- People suing if they lose their private keys and are no longer able to make
transactions

\- People suing if they forget their passwords and can no longer access their
email they signed up with to do a recovery.

\- People suing if they lose their 2FA code and can no longer access their
account

\- People suing if a bug in my software causes them to lose access to their
account or coins

\- People suing if I decide to close down my service (I will give 90 days
notice --- or maybe more, haven't decided yet) and did not deactivate their
accounts.

Basically trying to protect myself for anything that is not fraud on my part.

Seems like most people here are pro-"short and sweet" ToS -- what do you think
about writing it myself?

~~~
hshehehjdjdjd
_> People suing if a bug in my software causes them to lose access to their
account or coins_

Everything else sounds pretty reasonable, but this doesn’t. If you cause
someone harm, you should expect that they will attempt to recover damages from
you, regardless of what your T&C says. I cannot fathom why you think you
should be protected against this eventuality. Buy insurance instead.

Regarding your question, notwithstanding the hand-wringing on this page, a
given T&C clause tends to exist because someone has been sued over the matter
being clarified. If the law specified each point, or if society were less
litigious, these clauses would not be necessary. But this is not the case. I
think you would be a fool to risk your company’s wellbeing to satisfy the
whims of uninformed HN commenters. Almost all of them will blindly accept and
be bound by your T&C regardless of their stated beliefs on this site, and,
even if that were not the case, they are a tiny, unrepresentative slice of
your market.

~~~
doomslice
Fair enough. I guess this is why I should get a lawyer involved! I was
assuming there was some distinction between accidental negligence and fraud as
far as what could be protected against.

~~~
sigstoat
why shouldn't the customer be able to recover damages from you if you had an
accident, or were negligent? they were paying you to take care of this stuff
for them. if they wanted the risk of accident and incompetence, they'd just do
it themselves.

~~~
doomslice
Does that draw any distinction between paying and non-paying customers then as
far as their rights? I see tons of "you assume all risks" sorts of Terms of
Service, but I have a feeling those are likely just there and don't do much.

------
vannevar
We need something akin to the Uniform Commercial Code, which solved a similar
problem with proliferation of contracts in the B2B realm. And I think there
should be a strict limit on the amount of verbiage that a B2C contract can
contain to remain enforceable, due to the highly asymmetrical nature of the
relationship economically.

------
drsopp
Why cannot we, as consumers, gang up and define a kind of universal and fair
‘reverse contract’ that defines rights and duties that a potential service
provider needs to conform to? If they don’t, we just don’t use their service.

------
cabaalis
If I walk into a McDonald's, I wager that the social normality requirements
and laws that permit my access there and permit the owner to legally throw me
out is longer than the 50,000 words cited in the article. However, I fully
understand enough of them that I'm able to transact the purchase of my
hamburger and leave. All the rules there are in the owner's favor, and very
few are in mine. I'm not trying to be reductionist, I understand the backlash,
but there is no inherent right to use PayPal.

~~~
protonfish
I don't remember having to read and sign a license the last time I bought a
hamburger from McDonald's. Has that changed?

~~~
cabaalis
You legally entered someone else's property, which is governed by many laws.

------
textmode
Maybe of interest:

[https://www.sec.gov/pdf/handbook.pdf](https://www.sec.gov/pdf/handbook.pdf)

Lawyers who prepare submissions to the SEC in the US have long been advised to
use "plain English".

------
mattferderer
Startup Idea - An AI language translator for legal language to English. It
could convert a 20+ page contract to a 1 page bullet list. Maybe this has
already been done or does the language of law require quantum computing?

~~~
kbenson
An interesting idea, but complicated by the fact that as often as not the
terms expressed are affected by the domain and locale.

For example, for every employment contract that contains a non-compete in
California, there is relevant California state law that means it's _probably_
unenforceable. What do you show for that?

Additionally, new case law is being made all the time. Laws aren't static,
they are added to, amended or removed through legislature and case law. To my
understanding, the case law changes are also more about the specific
circumstances of the case as well, so may apply narrowly or widely, depending
on ruling. And may be appealed.

------
tobltobs
This is one of the many baffling details of the GDPR, a TOS should be
understandable for average humans (plain english), but at the same time it has
to pass the scrutiny of a court? That is just impossible.

------
DoofusOfDeath
Disclaimer: I hate complex / abusive T&C's, and I'm keen to see them
abolished. But...

It seems to me like we as a public are blaming corporations for _our_
failures. As adults we're responsible for what contracts we enter into, except
in cases of coercion.

99% of us were stupid enough to state that we accepted terms that we didn't
even read. Especially in cases where the product/service was purely optional
(Netflix, Call of Duty, etc.), I don't see how this is anything but our fault.
IMO, we have not been acting as competent, responsible adults.

Should we change our laws to make complex and/or abusive T&C's go away?
Absolutely. But are corporate lawyers the only flawed agents here? IMO, no.

~~~
rabboRubble
250 hours: that is the number of hours required to actually read all the
adhesion contracts the typical American is exposed to in a year.

[https://www.theguardian.com/technology/2017/mar/03/terms-
of-...](https://www.theguardian.com/technology/2017/mar/03/terms-of-service-
online-contracts-fine-print)

250 hours is a full man-month of time. Do you have a free month in your
calendar to read contracts and do very little else? Nobody I know has that
sort of free time. So calling people or their behaviors "failures" for not
reading all contracts is an unfair, unrealistic expectation.

~~~
downandout
Access to Facebook, Spotify, or Netflix is not a human right. These are
private services offered by private companies who are free to offer those
services on any terms they choose. It’s fine and completely understandable
that you may not have time or cannot understand the agreements under which
they may choose to offer you access. Your remedy for that is to not use the
services in question. Your remedy _isn’t_ to lie to them and falsely certify
that you have read and contemplated them.

~~~
jerf
Bold words. Question: Off the top of your head, for what period of time may
you make a claim or cause of action arising out of or related to use of Hacker
News or its terms of use?

I'm just curious whether you've read and understood the terms of use for the
site you're making these bold claims on.

~~~
downandout
Actually I have read them, back when I agreed to them many years ago. I don’t
recall the specific detail you are asking off the top of my head, nor would
that be a reasonable expectation of anyone. However, since I read and agreed
to the terms and conditions, I know that a) such a document exists; b) that I
can refer to it at anytime to answer such questions if I have them; and c)
that I did not lie to Hacker News when I registered.

Can you make the same claim?

------
Digit-Al
I'd just like to refer to this:
[http://www.plainenglish.co.uk/](http://www.plainenglish.co.uk/)

------
paulie_a
PayPal is a company that just needs to go away. They screw people out of their
money left and right. And for the cherry on top their ui is complete garbage

------
bencollier49
Hilarious. Bloomberg harp on about GDPR but their own cookie notice violates
it by using assumed consent and tying consent to use.

~~~
kenning
Oh my god, can we have one article on this topic without this comment? The
whole problem is that 99% of websites people visit come with trackers.

------
xoa
At a really high, generalized level (with contract law being a subset), I
think the legal system (and in many ways society in general) has yet to really
get a grasp on the concept of resource exhaustion attacks. We all know about
DDOS as it applies to digital systems, but individual humans and the social
systems we make also all have actual, hard limits on how much information we
can possibly process, store, and communicate/move around. A lot of the
foundations of law and debate date back to long before we entered the sharp
part of our current information production J-curve, when it was much more
possible for a single human to be more generalist and it was simultaneously
simply more difficult and expensive to pump out hundreds or thousands of pages
of contract and law. But those days are past, and at some point, to the extent
we want (and we should want it) law to work for humans, there need to be
actual principles around the fact that if something exceeds the
time/memory/intelligence a human could reasonably apply to it then it
shouldn't matter if "they could in theory". Let alone if they really couldn't,
even in theory (not enough seconds left in their lives). Organizations may be
able to act as superhumans here, able to subdivide work and specialize towards
a single goal, but for regular actual humans resource cost should be a
fundamental consideration of legal validity.

I'd like to see this improved for _both_ sides of the equation though FWIW. I
agree that as a user/consumer, the EULA/TOS situation is intolerable and that
there's a lot of sketchy or outright bullshit stuff in many (maybe most) of
them. But I do think some of the contents are also genuinely guarding against
liability that frankly really just shouldn't exist by default either. If
someone writes up some software or makes a service and just puts it out there
on the open market with no promises, they shouldn't need any sort of contract
at all saying they won't be liable if it's used for life-safety critical
applications for example (EULAs/TOS are full of this, right up to "this is not
for nuclear reactors you fucking idiot" clauses). The law should provide for
minimal basic standards and simple money-back guarantees for lack of
performance, but just as users shouldn't have to read a 50 page EULA that
somewhere buried within tries to take lots of their rights and lay claim to as
much of their information as possible and such, so should developers not have
to worry about being sued because there was a bug unless they've actually
affirmatively promised there wouldn't be a bug. Major liability should tie
into things application promises and SLAs, which would be more generally
negotiated between entities who can reasonably handle the increased
information and legal complexity and think it all through.

I do really hope we see some standardization all the way around. It seems like
there could be some real win/wins in this area, and that it's not necessarily
that politicized either.

~~~
notabee
The really scary part is that any form of democracy itself rests on a similar
assumption. Time, human attention, and learning capacity are all finite and no
longer map well at all to an abstract, unbound ideal of civic responsibility
or awareness. Other countries seem to interpret contract law differently as
well. [https://europa.eu/youreurope/citizens/consumers/unfair-
treat...](https://europa.eu/youreurope/citizens/consumers/unfair-
treatment/unfair-contract-terms/index_en.htm)

