
Like Comcast, Google Fiber now forces customers into arbitration - infinotize
http://arstechnica.com/tech-policy/2016/06/like-comcast-google-fiber-now-forces-customers-into-arbitration/
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TheMagicHorsey
Arbitration clauses are allowed because in contracts the tradition is that the
parties are allowed to create private rules that will govern their future
transaction. You can also nominate the venue and laws that will apply to the
contract, even if you don't arbitrate.

The reasoning is that the contract is a bargained document between the
parties, and if a party does not like the contract, they are not forced to
enter it.

If what you get in return for the contract is not sufficient to join the
contract, then you don't execute it.

This is efficient so long as the bargaining power in the market is not highly
asymmetrical. The US market is not ideal, but I'm not entirely certain
arbitration provisions are a bad idea, regardless.

One reason arbitration provisions might be good, is because its a way for
companies to opt out of the hunting territory of the trial lawyers
association. The lawyers are another powerful group that has created many
kinds of nuisance lawsuits that act as a private tax on corporations in the
US. If the private tax is unavoidable, the cost is passed on as a price
increase to consumers.

The lack of arbitration clause could manifest itself as increased cost of
goods in the current climate, because of the huge cost of nuisance class
actions, etc.

Just a perspective.

~~~
arca_vorago
The problem with this perspective is that it doesnt match reality.

Consumers have not been taught how to properly negotiate and enter contracts,
and companies creating the arbitration clauses almost always have the power to
push back on changes until the consumer relents.

I wash shocked when I ordered a test Dell Ubuntu machine, took the time to
read the EULA/TOS, and was appaled at their terms, which included waiving of
constitutional right to a jury!

The real problem, the dark discussion we need to be having, is about the
inequality of access to redress of greivance via the law. We live in a society
that has created a system in which you must have money to pursue legal
recourse, and in a world of increasing inequality, the fact is the port and
middle class are increasingly railroaded by arbitration clauses and similar
legalese understood by only the people who wrote it.

I'm not advocating for restriction of private terms of contract, but
corporations are abusing their power in the equation to the detriment of the
people, so lets not lose sight of the reality, as opposed to the theoritical
situation lobbyists would have us believe.

As a proposed solution, I think contract law should be taught in highschool as
core cirriculum. I have even recently added a section in my documentation for
sysadmins to address the reading of eulas/tos, and signing of contracts.

~~~
ocdtrekkie
In most cases, consumers have zero ability to negotiate contracts. You can't
negotiate a EULA. You either accept it, or find a different product. And if
some piece of software is vital to something or other else you need with no
alternative, you don't even have much of a choice on whether or not to accept
it.

~~~
Spivak
And it's not as if the courts are blind to this fact, there are protections
when there is a power imbalance and the contract is take it or leave it, but I
doubt any of these protections will extend to private arbitrators.

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spriggan3
It's difficult to understand how such clause is even legal to begin with. It
basically sets up a "private" justice system for non criminal cases. That's
insane. I get it, there are difference sort of tribunals. But it shouldn't be
up to the corporations to decide where justice is supposed to be served.

~~~
mmanfrin
It's legal because the five justices who decided that money is speech decided
that money now gets its own courts.

[https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepc...](https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepcion)

~~~
the_watcher
Not really. Arbitration has long been a path that judges recommend for non-
criminal cases to reduce strain on the court system. I know that it can often
seem nefarious, but a major part of the modern civil court system involves
reducing the (frankly, unbelievable) strain on court resources, which are
finite (and in many states, being reduced for budgetary reasons).

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Dowwie
For more information about arbitration courts, read this New York Times
article:.
[http://mobile.nytimes.com/2015/11/01/business/dealbook/arbit...](http://mobile.nytimes.com/2015/11/01/business/dealbook/arbitration-
everywhere-stacking-the-deck-of-justice.html)

~~~
ocdtrekkie
The key quote in here, to save people fishing for what they know is in this
article: "And the rules of arbitration largely favor companies, which can even
steer cases to friendly arbitrators, interviews and records show."

Also, you might want to use a non-mobile link.

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zymhan
What scenario is Google worried about where they will face a massive, costly
class action lawsuit over their internet service?

~~~
mikeash
Maybe there are no specific scenarios, and it's just to be safe. If you were
Google, why _wouldn 't_ you add such a clause? It's not like it's going to
scare customers away.

~~~
ocdtrekkie
Shouldn't it scare away customers that a company will only do business with
them if they cannot be held in court for misdeeds regarding that business? I
sadly understand that consumers don't read the fine print. But really, this
clause should be treated as a dealbreaker.

~~~
fgonzag
It won't because usually your options are 50 Mbit line (maybe 100 if you're
really lucky) or a 1Gb line for the same price.

I'd happily take the arbitration clause for 10x and probably 20x the speedup.

~~~
heroprotagonist
Beyond that, your other options will also usually include arbitration clauses.
If it's a deal-breaker for choosing Google, it'll be a deal-breaker for
choosing anyone else.

~~~
ocdtrekkie
That's a fair point. As the article's title points out, Comcast does the same.

~~~
deadowl
Does FairPoint?

~~~
ocdtrekkie
[http://www.fairpoint.com/document/Residential_HSI_Terms_of_S...](http://www.fairpoint.com/document/Residential_HSI_Terms_of_Service_tcm12-4842.pdf)

This document, found via a quick search, doesn't seem to contain the word
"arbitration".

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effingwewt
I posted this on another article-
[https://news.ycombinator.com/item?id=11850870](https://news.ycombinator.com/item?id=11850870)
-but it went unanswered, I'm hoping maybe this time someone will see this. It
was in regards to google being brought a CA by advertisers who'd felt cheated
(and rightly so if I understand correctly).

"Serious question- Would this(a class action suit for screwing customers) have
been possible if Google had put in their contract that all parties waive their
right to a class action? Many companies do this now- Microsoft's xbox live,
for example not only forces you to forfeit any class action lawsuits, but at
the time I stopped using their services, I believe they also required
meditation with a mediator to be chosen by Microsoft. I sold my xbox 360 and
never looked back.

edit- I also remember specifically Microsoft releasing a TOU update just days
after, if not the day of, the ruling allowing companies to do this came down."

~~~
whamlastxmas
The mediation part is a moot point from what I've heard. Mediators don't
really do anything other than facilitate discussion. If they got to choose an
_arbitrator_ that would be a different story.

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lucb1e
Serious question: how is this legal? I can't imagine I could make someone sign
a form that he waives his right to sue me and then shoot him, right? Assuming
he doesn't die and it's him, not the government, that prosecutes/sues me.

~~~
the_watcher
> I can't imagine I could make someone sign a form that he waives his right to
> sue me and then shoot him, right?

To answer your question - yes, you could legally have someone sign a contract
waiving his right to sue you for shooting him. However, the contract would be
unenforceable, and he could sue you (for both shooting him and potentially for
the contract - IIRC, that depends on the state). One of the things that became
abundantly clear in contract law is that you can put essentially anything into
a contract, legally. It's enforcement of said contract that the legal system
gets involved in.

~~~
lucb1e
> you could legally have someone sign a contract waiving [t]his right [...]
> However, the contract would be unenforceable

I understand I can write any nonsense and sign it, probably because of freedom
of expression or something. My point was whether that contract would be
enforceable. If such a thing wasn't enforceable Google and others wouldn't be
putting it in their contracts.

~~~
Vraxx
Not necessarily true. You have to challenge it to find out if it's enforceable
in many scenarios, and it might act as a deterrent as well. Even a widely
known unenforceable clause can deter someone who doesn't previously know that
it is unenforceable from doing the action that the clause prohibits. So I can
definitely see plenty of reasons to include these types of things in a
contract. Plus, what does it cost them to include it in the contract?

~~~
kevincox
Yes, unenforceable clauses in a contract can be used as a game of chicken.

    
    
      Customer: You can't enforce that clause.
      Google:   Yes we can.
      Customer: Nuh uh!
      Google:   Want to go to court to find out?
      Customer: ...

~~~
lucb1e
Well if the clause is not to take them to court, and they want to take them to
court, then yes they do want to go to court to find out. But I do see your
point.

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koolba
Has any state attempted to ban arbitration clauses via popular
vote/referendum? If so, would that even hold up in court and across state
lines?

Seems like the only way to deal with this crap as there's no incentive for
corporations _not_ to force customers into binding arbitration. If I was still
running a large consumer focused corporation I'd insist on it as well.

~~~
Natsu
Why ban it? Just make it so that when it's person vs. company, the person can
choose the arbiter. Then they can't shop for a biased arbiter.

~~~
koolba
> Why ban it?

Because it prevents creating a class action to group together impacted
customers. Individually it may not be worth it for a customer to proceed with
a claim. En masse, there is an economy of scale.

Now I'm not in favor of frivolous lawsuits and these clauses are clearly
intended as a defend against them, but if the response to that problem
shouldn't be binding arbitration everywhere. It should be tort reform.

~~~
Natsu
Yes, it might prevent class action, but if that many people have truly been
harmed, the company will have a massive number of arbitration suits to handle
which could be more expensive. So they still can't just go around and piss off
large numbers of customers.

Half the things I've gotten pitiful $5 checks for were not at all in my
interests and one, namely the Microsoft class-actions, I was tried but failed
to figure out how to object to because of how badly the lawyers in this state
sold the class out in what they settled for.

So I'm not convinced that many of the class actions were actually in the
interests of the class members to begin with. I'd honestly prefer to bring my
own cases to court than have some self-appointed class representative sell me
out.

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the_watcher
This isn't exactly rare. It's a very, very common clause in TOS's. It's also
often a clause that isn't exactly enforceable (and I believe different venues
have different rules about it).

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NegativeK
Someone gave non-specific legal advice that a hackerspace I'm a part of
include an arbitration clause in its liability waiver.

Comparing Google's to Comcast in this situation doesn't really feel right.

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cerbasict12
How is Google different anyway? They both support the TPP.

~~~
zymhan
Is there really no other comparison between the two companies that you can
think of?

~~~
ocdtrekkie
They also both line politicians' pockets to ensure laws get passed in their
favor? (Google has donated to over half of Congress according to
OpenSecrets.org, in actual cash donated I think Comcast might still be on top,
but the gap's closing fast.)

I'd also comment on their mutually horrible customer service, but at least
Comcast HAS people you can call, even if they're lousy.

~~~
rayiner
> (Google has donated to over half of Congress according to OpenSecrets.org,
> in actual cash donated I think Comcast might still be on top, but the gap's
> closing fast.)

Corporations can't donate to political campaigns. What OpenSecrets.org
misleadingly advertises as "corporate" donations to political campaigns are
_employee_ donations to campaigns.[1] Google has 57,000 employees.
Unsurprisingly, many of them exercise their rights as members of a democracy
and support their favorite political candidates.

[1] Specifically, OpenSecrets lists donations from individual employees and
company-sponsored PACs. Corporations are banned from contributing directly to
political candidates, or from donating to regular PACs. Only Super PACs can
accept money from corporations, but those are banned from donating to
candidates.

~~~
ocdtrekkie
It's not misleading. Many of the donations are from top ranking Googlers like
Eric Schmidt who directly interact with these politicians in a business sense.
Many of these donors have stock-based compensation with Google.

Unsurprisingly, almost all pro-Google legislation is sponsored by the same
Congresspeople who have received the largest donations from Googlers.

So OpenSecrets' format is specifically designed to reveal corruption that
would not be obvious with mere donor names alone.

~~~
DannyBee
"It's not misleading. " Of course it is. People are not the companies they
work for. Period.

" Many of the donations are from top ranking Googlers like Eric Schmidt who
directly interact with these politicians in a business sense."

"many".

Opensecrets lists 503 unique people identified as googlers donating. I don't
believe you have any reasonable argument that there are 503 top ranking
googlers who interact directly with these politicians in a business sense. I
think you can argue maybe _1-2%_ of them are.

So 98% of them somehow don't fall into what you consider "many of the
donations". That doesn't seem like many to me.

"Unsurprisingly, almost all pro-Google legislation is sponsored by the same
Congresspeople who have received the largest donations from Googlers."

What is "pro-google"? Who are "the same congresspeople"?

Can you give _specific examples_ of pro-google legislation and congresspeople
who have repeatedly passed them, where there largest donations were from
google?

I see a tremendous amount of handwaving in your comment, but pretty much no
real data.

~~~
nitrogen
_It 's not misleading. " Of course it is. People are not the companies they
work for. Period._

Did you read the leaked Sony email where one exec was hounding all the other
execs to make large donations to a particular politician?

~~~
DannyBee
Again, there are 503 donators. There are not 503 execs at Google.

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benbenolson
Does anybody care about the Constitution anymore? It seems like every day I
read an article about someone either going against the Constitution, or
getting very close to denying its importance in the United States.

~~~
RileyKyeden
You should be more specific if you want useful replies. Otherwise, people will
chime in to soapbox on their pet constitutional issue.

~~~
benbenolson
This was in direct response to the article, in which Google Fiber's new policy
strips users of their Constitutional rights.

~~~
hnbroseph
what are you speaking of in particular?

