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January 30, 2021 05:34 pm

'Terms of Service' Agreements Are Unbalanced, Need Reforming, Urges New York Times

"The same legalese that can ban Donald Trump from Twitter can bar users from joining class-action lawsuits," warns the official Editorial Board of the New York Times, urging "It's time to fix the fine print." [Alternate URL here][M]ost people have no idea what is signed away when they click "agree" to binding terms of service contracts — again and again on phones, laptops, tablets, watches, e-readers and televisions. Agreeing often means allowing personal data to be resold or waiving the right to sue or join a class-action lawsuit... Because corporations and their lawyers know most consumers don't have the time or wherewithal to study their new terms, which can stretch to 20,000 words — about the length of Shakespeare's "Julius Caesar" — they stuff them with opaque provisions and lengthy legalistic explanations meant to confuse or obfuscate. Understanding a typical company's terms, according to one study, requires 14 years of education, which is beyond the level most Americans attain. A 2012 Carnegie Mellon study found that the average American would have to devote 76 work days just to read over tech companies' policies. That number would probably be much higher today. At its core, the arrangement is unbalanced, putting the burden on consumers to read through voluminous, nonnegotiable documents, written to benefit corporations in exchange for access to their services. It's hard to imagine, by contrast, being asked to sign a 60-page printed contract before entering a bowling alley or a florist shop... Though courts have held terms of service contracts to be binding, there is generally no legal requirement that companies make them comprehensible. It is understandable, then, that companies may feel emboldened to insert terms that advantage them at their customers' expense. That includes provisions that most consumers wouldn't knowingly agree to: an inability to delete one's own account, granting companies the right to claim credit for or alter their creative work, letting companies retain content even after a user deletes it, letting them gain access to a user's full browsing history and giving them blanket indemnity. More often than not, there is a clause (including for The New York Times's website) that the terms can be updated at any time without prior notice. Some terms approach the absurd. Food and ride-share companies, like DoorDash and Lyft, ask users to agree that the companies are not delivery or transportation businesses, a sleight of hand designed to give the companies license to treat their contract drivers as employees while also sheltering the companies from liability for whatever may happen on a ride or delivery. Handy, an on-demand housecleaning service, once sought in its terms of service to put customers on the hook for future tax liabilities should their contract workers' job classification be changed to employee... "This is one of the tools used by corporations to assert themselves over their customers and whittle away their rights," said Nancy Kim, a California Western School of Law professor who studies online contracts. "With their constant updates to terms and conditions, it amounts to a massive bait-and-switch...." "We have become so beaten down by this that we just accept it," said Woodrow Hartzog, a Northeastern University law professor. "The idea that anyone should be expected to read these terms of service is preposterous — they are written to discourage people from reading them...." The Board urges the U.S. Congress to consider requiring greater transparency about terms and their changes — as well as simpler explanations. "If a company's online service is open to 13-year-olds, as many are, then the terms of use need to be written so an eighth grader can understand them."

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