
Slack's New Arbitration Policy - etjossem
https://konklone.com/post/slack-is-now-forcing-users-into-arbitration-and-that-is-terrible
======
mattsoldo
There are two separate issues here. Requiring arbitration is one. Disallowing
class action is another. You cannot conflate these two things.

Disallowing class action is absolutely in-favor of Slack and companies in
general. Class action suits are a powerful pro-consumer force. They allow
consumers to seek redress without cost - as the legal costs are paid for by
the plaintiffs attorneys. Sometime consumers don't get much out of these suits
while the attorneys make a lot. But their threat is a strong check on powerful
companies.

Forcing arbitration is a murkier matter. The first google result on
arbitration vs trial ([http://www.nolo.com/legal-encyclopedia/arbitration-
pros-cons...](http://www.nolo.com/legal-encyclopedia/arbitration-pros-
cons-29807.html)) provides a decent analysis. Frequently arbitration is less
expensive for both sides because the process is simplified. You also avoid
shenanigans like fighting for 6 months about jurisdiction and venue (which
either side can do to seek a more favorable court).

The article states that arbitration is bad because consumers don't have legal
representation. This is flat out wrong. Consumers can and _should_ have legal
representation in an arbitration. Just like in a trial, consumers need to pay
for this legal representation themselves, and it would be foolish not to have
it.

The article also says that arbitration is bad because companies have more
legal resources than consumers. This is a fallacious argument. Companies will
_also_ have more legal resources in a trial. If anything, the simplified
process of arbitration makes this less of an advantage. So arbitration may be
slightly better for consumers in that respect.

~~~
duskwuff
> Class action suits are a powerful pro-consumer force. They allow consumers
> to seek redress without cost - as the legal costs are paid for by the
> plaintiffs attorneys.

Keep in mind that Slack is a B2B service, though; its clients are companies,
not individuals. Would a class-action suit really make sense here, given that
most of the "consumers" involved should already have access to legal
representation?

~~~
wpietri
> Would a class-action suit really make sense here

Definitely. Their low-end plans are relatively cheap. That means that even if
you have legal representation, it often wouldn't be worth suing them. But a
class action spreads the legal cost across many plaintiffs.

Simple example. Suppose BadCo has 10,000 customers who each pay $1000 per
year, for annual revenues of $10m. If they can cheat each customer out of an
additional $100 (say by overbilling), then they'll make $1m, which is enough
money to be tempting. But very few people will go to the time and trouble of a
lawsuit just to get $100 back. But a class action lawyer might happily take
the suit thinking they could make 25% of that million.

------
anonbanker
What's the problem? Send these guys a private offer to arbitrate, according to
your terms. Put your concerns on an affidavit concluded with your offer, and
give them an opportunity to respond within 10-15 days. If they go silent (they
will), send a notice of default next, and then file your lawsuit in civil
court. You will have satisfied the private arbitration clause (arbitration
went nowhere), and with your options exhausted, you now must file in court.

Source: I'm an _ex aequo et bono_ arbitrator.

~~~
function_seven
I may be a bit dense, but your comment doesn't seem to relate to the article I
just read. Is this the wrong thread or am I missing something?

EDIT: I have to be missing something. Half the comments here talk about
arbitration, but that word doesn't appear once in the blog post. Was it
edited?

~~~
mbreese
You're not missing anything. Two posts were merged. This is the Privacy policy
blog post by Slack. There was another blog post (third-party) that talked
about changes in their TOS to include arbitration.

[https://konklone.com/post/slack-is-now-forcing-users-into-
ar...](https://konklone.com/post/slack-is-now-forcing-users-into-arbitration-
and-that-is-terrible)

------
davidu
Lawsuits are incredibly painful. The emotional and time tax to be in one,
regardless of what side you are on, is immense.

I hear what this guy is saying. However, having been in three lawsuits, one of
which I initiated, I would do the same thing as Slack. I would generally try
to do anything reasonable I could to avoid a lawsuit.

Arbitration or mediation (very different things) is almost always required
anyways, by the courts, if you file a lawsuit. They make you try. At least
they try to force a mediator.

If you force arbitration, it's the same thing as forcing a lawsuit and would
result in my immediate desire to resolve your issue without continued legal
maneuvers.

Anecdotally, and as I think most litigation attorneys would tell you -- People
settle lawsuits because they are either out of time, or money. They almost
never settle because they think they've lost the case. The merits of the case
rarely matter once you are knee-deep in the litigation, but the toll a lawsuit
takes does factor into a settlement decision quite often.

------
danielrhodes
Compared to Hipchat, Slack has handled this compliance issue much better. I am
personally uncomfortable with the idea of managers seeing employees
communications, and Hipchat didn't put any consideration into this when they
released that feature. Slack on the other hand seems quite aware of this issue
and done things which make me much more comfortable, at least short-term. It
goes to show what careful and empathetic product thinking can do to enhance
your customer's experience.

~~~
mrjatx
It is absolutely ridiculous to be uncomfortable with managers seeing employee
communications. First off, any time you log in to a machine at most
corporations you're told that ALL network activities are monitored. It's not a
joke. They are monitored. Every packet you send out and every packet you
receive CAN BE RETRIEVED. This isn't new. I'm 30 and have seen this since I
was in high school. I'm sure older folk have seen it for even longer.

Next off, you are owed NO privacy on services that your company is paying for
for interoffice communication. You never have been. The fact that people
bitched and moaned over Hipchat allowing history to be viewed is just ignorant
and stupid.

You know why managers have the ability to view these things? Harassment.
Sexual, physical, altercations, etc. If your company has more than 5 people
these things WILL come up and the INABILITY to retrieve this data is BAD.

We have ALWAYS been able to retrieve this data via XMPP (Openfire), MSOffice
Communicator/Lync, etc.

This is NOT some mind blowing new development.

~~~
moe
This kind of monitoring may be normal in BigCorps but it's definitely not part
of startup culture.

I'm also irritated by the mindset that considers this kind of
institutionalized snooping a good thing ("INABILITY to retrieve this data is
BAD").

~~~
mrjatx
I've been a network administrator and had control of everything.

That did NOT mean that I was actively viewing everything and sitting in a
tower somewhere cackling at all of the deep dirty news I had. I had to pull
data a handful of times during lawsuits or sexual harassment complaints.

You should not be delving into deep personal/sexual conversations on any work
tool without having in the back of your mind that it may come up at some
point, whether you're at a startup or not. I'm on my 3rd startup and while I
know nobody has been monitoring (because I pay for the tools) I still keep the
tools somewhat professional. To the point that I couldn't care less if someone
looked into my conversations. If we're going to bitch about that, then the
fact that my data is on some unknown server at Hipchat is FAR more worrisome
to me than my COO looking at my conversations.

You SHOULD trust your employees and if you don't trust one replace them. You
should also TRUST your management to not spy on you. But you should also
assume that they have the ability, if not, you're daft.

------
mark212
Yet another company that is opting out of complying with any legal system by
forcing an arbitration clause on its customers. I switched from Hipchat when
it changed its TOS to include mandatory arbitration and now it looks like I'll
have to ditch Slack, too.

Pity. It's a good service.

(kind of hilariously, the arbitration provisions are not well drafted and are
almost certainly unenforceable.)

~~~
MCRed
Companies often choose arbitration when doing agreements between themselves,
even large companies. The reason for this is, if, say, Nike and Apple did a
deal and it went sour enough to have a lawsuit, they can resolve it much more
quickly and cheaply than if they had to go to court.

The US court system is very slow, and requires significant resources in terms
of lawyers that are not required with arbitration.

This should also be to the benefit of individuals as well, as the bar for
suing a company as a consumer is much higher than picking a mutually agreed
arbiter and getting the case heard.

IF the clause is fair (e.g.: mutually agreed arbiter certified by a national
arbiter certification organization) then I tend to see these clauses as
consumer friendly.

~~~
gnopgnip
Without the clause, arbitration is still available if it is agreed by both
parties.

In practice the arbiters that do not side with the companies are not chosen
again in the future.

~~~
aragot
Bias, what about bias? I've always wondered if my software license should
contain a thrid-party arbitration, and I've always chosen not to, because I
have no control on the arbitration's neutrality.

They could charge customers a fee for settling "in favor of", or settle based
on their membership time or random dice, and it would still be enforceable in
court.

Note that my business is located in France so a US arbitrator could have a
national preference for arbitraging in favor of a US citizen, and there would
be nothing illegal in that.

------
tinco
They're holding our chats hostage, we can't even look at our chat history
without accepting the terms. And to think that we chose Slack over HipChat
solely for their better ToS. This makes no sense at all, why would you force
something like this onto your customers so aggressively? They're killing all
of their good will with us in one fell swoop.

~~~
chjj
I don't see binding arbitration as a bad thing as long as both parties are
allowed to agree on an arbiter (I may have missed something, but I imagine
that's always the case, and also the case here(?). ...Hell, maybe you could
end up on Judge Judy).

I hate to say it, but HipChat is really flawed (IRC, please). Slack is far
superior technically. I'd still pick Slack. People may be blowing this out of
proportion.

~~~
SEMW
If both sides can agree on an arbitrator, you don't need to have anything be
binding, they can just agree to arbitration.

Binding arbitration clauses that just say both sides have to agree on an
arbitrator aren't really a thing. That would be an 'agreement to agree' which
in some jurisdictions is even void, because it's impossible to sue anyone over
a breach of it. (Whose breach is it when two parties couldn't agree an
arbitrator? Well, both, and neither).

So binding arbitration clauses either specify an arbitrator in the contract or
allow one of the parties (guess which) to choose at runtime. The slack one is
the former, it specifies one called 'JAMS ADR'.

------
freshflowers
It's a business tool, paid for by the employer. You shouldn't expect anything
you do on there to remain private, just like you should expect your company
mailbox to be private.

~~~
etjossem
To be fair, the features in question are called "private groups" and "direct
messages." There's bound to be some expectation that they are private and/or
one-to-one.

~~~
varikin
Would you expect emails via company mail servers from yourself to a coworker
to be private? How about chats using some intranet based tool like MS Lync?

Private and direct messages within a company should be thought of as not
involving your coworkers, but IT and legal a might be monitoring.

~~~
etjossem
You, apetresc, and I are all unusual users - we're thinking about this in
terms of network connections. Our first instinct is to figure out which
parties in the chain could have stored a copy of the message. The typical user
will probably just rely on clues like "private" or "direct" and make
assumptions from there.

The privacy level of these features can and will be misinterpreted. Read a few
legal cases where employee communications are exhibited; you'd be surprised
what people say on internal platforms.

~~~
goatforce5
Any employee is a fool for thinking making permanent records of things using
company resources will remain private.

You're on holiday or otherwise unavailable and someone needs some details for
some obscure project you're working on? Crack open their email!

Those accounts and everything else belong to your employer and if it suits
their purposes to go poking around your email or IMs, then they will.

------
eli
I personally would feel very uncomfortable reading any employee messages...
BUT here's why I think it's OK in principle to have the ability to snoop
enterprise IM: we require everyone to use this chat system. It's part of your
job to be on it and work is conducted over it, so we have some plausible
responsibility in making sure it's being used properly and that people are
doing what they're supposed to be doing.

I'm solidly against reading employee's personal email or gchat or IRC messages
even though I think legally we probably could.

~~~
jonstewart
In the US, document discovery for litigation typically falls on the defendant.
So a company that's being sued is required under the law to produce relevant
business records and communications. If it's hard to access such "documents"
en masse and export them for legal review, then businesses which must deal
with nontrivial litigation requirements (the threshold is often right around
the $1B/annual revenue mark) will not use the system.

In the EU, things are a bit different and employees have a limited right to
privacy when using corporate systems. Not so much in the US, though.

------
kire456
Fun fact: according to law in the Netherlands, companies can not restrict
their terms to law of another country of the customer is Dutch[1], and binding
arbitration clauses involving 'normal' customers are void[2].

No clue how easy it is to sue a company on the other side of the world,
though.

All sources are in Dutch, unfortunately.

    
    
        [1] http://wetten.overheid.nl/BWBR0005289/Boek6/Titel5/Afdeling3/Artikel247/geldigheidsdatum_22-09-2014 (part 4)
        [2] http://wetten.overheid.nl/BWBR0005289/Boek6/Titel5/Afdeling3/Artikel236/geldigheidsdatum_22-09-2014 (part n)
        [*] IANAL-but-this-guy-is: http://www.iusmentis.com/contracten/algemenevoorwaarden/#zwartelijst

------
debacle
It's hard to justify _not_ putting a mandatory arbitration clause into a
contract, even if it is unethical. It's an incredible boon for companies and
most users don't appreciate what they're losing.

~~~
ben336
I'm always worried when I see sentences with the structure "It's hard to
justify [doing/not doing] X even if it's [unethical/illegal]". What type of
justification do you need?

~~~
debacle
Why are you worried? From the suits' perspective:

1\. Arbitration is going to potentially save hundreds of thousands of dollars
down the line if there's a legal issue.

2\. Arbitration incredibly favors the company over the customer.

3\. Most customers don't understand the value of their right to civil action.

So while an arbitration clause is, in my mind, equivalent to telling your
customers you don't actually care about being reliable, many companies are
putting them into place just because they can.

~~~
mark212
#1 is false. Ask Google or Apple or JPMorgan Chase -- who get sued frequently,
yet don't bother with arb clauses

#2 is true in most instances, but in order to find out you have to actually go
through the entire arbitration and pay your lawyers' bills

#3 is very true, but that only adds to the idea that it's unethical.

Companies put them in because the corporate defense bar thinks this is the new
hotness -- and few of those folks have ever actually litigated any of these
clauses.

------
skrebbel
Why not just make two policies: one for bigcorps where there is a big (but
friendly) "your boss can read your messages and we'll tell you when it
happens" at first sign up, and one for normal, sane, organizations where the
old TOS simply remains?

~~~
ben336
Thats basically what they described isn't it? This compliance export feature
is the only thing that allows reading private messages, and it is disabled by
default and requires significant hoop-jumping to enable. So for most companies
the original privacy policy will apply effectively.

------
aurora72
Nothing's indispensible, particularly on the Internet. So why complain? Just
go and find another environment. If you can't, build one.

I used to complain about Delicious and after a while I stopped complaining and
decided to use another service. As simple as that.

~~~
javajosh
_> why complain_

Because it offers a non-zero chance of the best outcome: a low cost, high
benefit outcome where the world changes to fall in line with your
expectations. If you do not say anything then the world has little chance of
changing. It is a rational result of cost benefit analysis. (Consider that
moving to another service is costly, and building a new one more costly
still.)

Additionally, I would point out that complaining about things that we don't
like is a universal human trait, which you yourself demonstrate. :)

~~~
aurora72
Hey dude I'm on your side on this issue, I wholeheartedly see everything you
say. By saying "why complain" my target was those dictatorship-practising web
instances and the thing is to remind them that nothing's irreplecable,
particularly on the Internet.

------
TheMagicHorsey
I think those that think this is a terrible move on Slack's part should find
another chat solution. There are others.

On the other hand, I support Slack's option to do this. I don't think people
here appreciate the financial load that class action suits place on consumer
service companies.

Yes, class action lawsuits are a useful tool to extract concessions from
companies, but they are also abused by litigators who are out to make a buck.
Because often the cost of defending a lawsuit is such that early settlement is
the best option even when the legal claims of the plaintiff are weak.

------
andy_ppp
Meh. American government/supreme court are the ones who removed your rights.

Slack is a corporation and should try to (within the law) remove as many of
your rights as possible to protect investors and shareholders. If you don't
like it, you know what to do.

Re: Slack. It looks very nice but it's not very difficult to copy it's product
as yet, it's USP as with most of these things is timing. I would suggest there
must be a few competitors that you can replace it with already?

~~~
TheCoelacanth
And their customers should do anything in their power to protect the interests
of their own shareholders. That includes publicly complaining in hopes that
the negative publicity will force Slack to change their terms.

Even if you accept that corporations must disregard ethics and legality and
act solely to maximize the interests of their shareholders, that doesn't that
you can't complain about their actions.

------
1123581321
I think that is a reasonable approach. The question my days working on NASD
(FINRA) compliance have trained me to ask is how Slack controls employee and
vendor write access to the audit log. I now work in a nearly regulation-free
environment and we are happy users of Slack, so I'm just asking out of
curiosity.

------
famousactress
Sounds fine to me, but this has me curious:

 _" In addition, Compliance Exports may include the edit history for messages
that team members have edited as well as messages that team members have
marked for deletion."_

That makes me curious whether "deleting" a message actually deletes the data,
in any circumstances.

~~~
tptacek
If they're complying with e.g. FINRA, then they can't delete messages; they're
required to provide a high-fidelity export.

~~~
famousactress
Oh, sorry.. I understand that. My real question was for those of us on
standard plans is hard-deletion a thing, and has it ever been in the past.

In fact, even for folks on plans this covers it's not clear how much of this
is "backwards compatible" with regard to data and conversations in Slack prior
to these terms.

[Edit: actually I see now "Compliance Exports are not retroactive and do not
apply to past private conversations before the feature is enabled" so strike
the second paragraph.]

------
leoh
Is there a way for a user to know if their conversations are being logged for
compliance?

~~~
jn
The feature is opt-in, requires a somewhat formal process to turn on, and all
users will be notified "via Slack that the feature is active and that their
private messages are subject to export". They don't make it clear if it'll be
made sufficiently obvious to a _new_ user who joins _after_ it's turned on,
but I'd guess so.

Also quite nice that "Compliance Exports are not retroactive and do not apply
to past private conversations before the feature is enabled"

------
smsm42
Looks like this is the standard reaction to something that is akin to parasite
infection in biology - abusive scammers that exploit US legal system to rob
companies and individuals with money. There's a theory that a lot of features
of modern organisms (including sexual reproduction) has evolved as a defense
mechanism to parasites. Looks like we're witnessing such evolution right now.
I wonder maybe the solution should be sought elsewhere - not trying to shame
Slack (or others) into doing something that makes no sense in current
environment and suffer from parasites, but try to fix the parasite problem
instead or at least make it less severe.

------
koopajah
What I don't understand is why not have this be "opt-in". Meaning if your
company does not need this feature for real legal reasons they don't enable it
and everyone is happy. I've heard a few people saying they did _not_ want this
feature in Hipchat and would have to switch to make sure there team was not
suspicious. If my company never needs to access private chats for legal
reasons, there is no reason it should be enabled today and they can have
access to it in 3 years.

I understand specific companies have specific needs and Slack has to meet some
of these but there is no reason that this should impact everyone else.

~~~
SeoxyS
Did you read the article? It explains a very thorough opt-in process which
involves mailing a signed letter on company letterhead and manual reviewal.

~~~
koopajah
Sorry if I wasn't clear enough. What I mean is that if in 3 years my company
needs to have access to some logs, they will have to go through the multi-
steps process but then have access to whatever they need (starting from
today's logs)

What I meant was that the possibility to access private chats should stay not
retroactive and only happen once the company has explicitly stated it will
need this feature enabled.

EDIT: so that if my company has no legal needs _today_ it won't have access to
private chats made today once they decide in the future that they _now_ need
the feature

~~~
josh64
That is how it works. "It’s worth repeating – Compliance Exports are not
retroactive and do not apply to past private conversations before the feature
is enabled."

~~~
koopajah
I did not understand the sentence that way even after reading multiple times
but that seems to make sense now. I must have been too biased when reading it
before. Thank you for pointing this out.

------
TheSisb2
If you're on the free version should you still worry? Is there any way chats
older than the cap on backlog can be restored?

------
gohrt
If you don't want cheap startup hosting TOS, don't use cheap startup hosting.

------
JoeAltmaier
How can you force anyone to sign away their rights like this? I'm confused. If
you want to file a class-action lawsuit, go ahead. No contract can prevent you
from doing that.

~~~
TheCoelacanth
In a sane legal system, that would be true. Unfortunately, the US Supreme
Court has upheld mandatory arbitration clauses, so companies are now allowed
to effectively exempt themselves from the law.

~~~
MichaelGG
Is there oversight on arbitration? What stops the private arbitration system
from just saying "Slack's always right"? Or must you come to an acceptable
agreement in arbitration else go to court?

------
GFK_of_xmaspast
That's capitalism for you.

------
sinak
Eric Mill's excellent post about Slack's new arbitration clause was just
merged into this thread by the moderators. Here is the URL:

[https://konklone.com/post/slack-is-now-forcing-users-into-
ar...](https://konklone.com/post/slack-is-now-forcing-users-into-arbitration-
and-that-is-terrible)

The post is titled "Slack is now forcing users into arbitration and that is
terrible." I highly recommend reading it, as there's no mention of the
arbitration ToS change in Slack's own blog post.

Edit: Also worth reading the ongoing conversation between Stewart Butterfield
(Slack CEO) and Konklone on Twitter:
[https://twitter.com/stewart/status/536975596920635393](https://twitter.com/stewart/status/536975596920635393)

~~~
cortesoft
Wow, I can't believe these were merged... one is talking about flaws in an
arbitration clause and the other is a press release from the company... and
they choose the fluff press release.

It makes these comments not make sense, and buries the real issue.

~~~
sinak
I agree, but the appropriate route is to email hn@ycombinator.com with this
sort of feedback.

~~~
asdfg534h
Contacting the team is great & should happen, but declining to post feedback
_on_ an affected thread would be unfortunate for everyone involved.

Context is key in any discussion. Let the voting system sort it out :)

