TOS Agreements Require Giving Up First Born -- and Users Gladly Consent

An anonymous reader shares an Ars Technica report: A recent study concludes what everybody already knows: nobody reads the lengthy terms of service and privacy policies that bombard Internet users every day. Nobody understands them. They're too long, and they often don't make sense. A study out this month made the point all too clear. Most of the 543 university students involved in the analysis didn't bother to read the terms of service before signing up for a fake social networking site called "NameDrop" that the students believed was real. Those who did glossed over important clauses. The terms of service required them to give up their first born, and if they don't yet have one, they get until 2050 to do so. The privacy policy said that their data would be given to the NSA and employers. Of the few participants who read those clauses, they signed up for the service anyway. "This brings us to the biggest lie on the Internet, which anecdotally, is known as 'I agree to these terms and conditions,'" the study found. The paper is called "The biggest lie on the Internet: Ignoring the privacy policies and terms of service policies of social networking services".This reminds me of a similar thing F-Secure security firm did in 2014. It asked London residents to give them their first child in exchange of free Wi-Fi access. The company, for the record, didn't collect any children.

Comments

I guess it's too late for me.

[mmell]

My firstborn is already fully grown and moved out. Now, where was this 'NameDrop' thing when I was, say, in my 20's?

Re:I guess it's too late for me.

[reboot246]

My firstborn will be 37 in September. You can have her, IF you can get her away from her heavily-armed husband. I pity you if you try, though.

Well it sounded like a joke EULA

[Kjella]

Sure, my first born... *laugh* then click "suuuuuuuure I accept", if they made some plausible sounding but ominous legalese they might have had some people refuse.

South Park episode

[gurps_npc]

I really liked the south park episode where they Apple tried to teach people not to do that by putting in permission for a human centipede.

The honest truth is those contracts are full of worthless lies intended to trick the unwary that are not aware that contracts can't make you give up certain rights.

We need to change the system to discourage/eliminate the TOS bullshit. I think that all TOS should be illegal unless they were fully negotiated by lawyers on BOTH sides - or approved by a federal agency as something that a citizen can understand and agree to without a lawyer.

Re:South Park episode

[JoeMerchant]

Back in the 1990s, we didn't have these things. AT&T raised my long distance rates by a factor of 300% from one bill to the next, I called them and told them that I never signed a term or condition that allowed such unilateral negotiations, I dispute and refuse to pay the bill until you correct it.

Some years later, they sent me an updated terms and conditions that included a "may revise, at our sole discretion, from time to time with notice to be given to you on our website, your payment of your bill constitutes acceptance of the revised terms." So, of course, I never paid another AT&T bill again.

Sorry guys, I guess I started it.

Lol, oh sure

[JustAnotherOldGuy]

Like they'd take my first-born.

Oh, they might put up with him for a day or so but then they'd want to give him back, and that's when they'd find out about my "no returns" policy.

I might waive the policy provision for a suitable amount of cash, plus handling fees, restocking costs, etc etc. A cool million or two ought to cover it.

Re:Lol, oh sure

[andrewbaldwin]

I can't find the reference but I do recall the earlier story. I also recall someone trying to get the company to accept his son and his associated student loan debts [plus provide said son with food, shelter...] - the company refused and I believe he threatened to take them to court for not honouring their contractual obligations.

Not sure how it ended up - but if a few highly publicised cases showed how companies weaseled out of their side of a bargain perhaps we could end up with more equitable and sane contract terms.

Perhaps that's too much to ask - maybe just settle for clear, simple expressions

Something like:

You give us money - we graciously let you use (not own) our stuff - we don't guarantee that it will work or that we'll support it - you can't bank on it working in the future (esp. if we decide to break it to force you to buy an upgrade) - if you even dare to think about looking at what you've rented we will bankrupt you - and "all your data are belong to us"

Not binding

[klossner]

A contract requiring you to give you your first-born is not legally binding (in the United States), so that's no reason not to click "accept".

Re:Not binding

[roninmagus]

Tell that to surrogate mothers.

Re:Not binding

[DoofusOfDeath]

A contract requiring you to give you your first-born is not legally binding (in the United States), so that's no reason not to click "accept".

Does that mean that no contract was established, and therefore the product's consumer were genuinely accessing the company's computers without authorization?

Re:Everyone knows this, why it continues is beyond

[BarbaraHudson]

Be careful - that is a pre-birth surrogacy agreement. Surrogacy agreements are valid in some states, all of Canada except Quebec, all of Australia, New Zealand, and of course Russia.

Law and Equity

[duckintheface]

What folks don't realize is that US courts consider "law and equity". That is, the court rules both on the fine legal points established by precedence AND also on what is fair. Most courts would say that the users did NOT consent to giving up their first born because they were not aware the term was there. And you can't consent to what you don't know. This would certainly be the case here because the offending clause was hidden in the fine print. And that is not "fair". So a ruling in equity would be in favor of the users.

Re:Law and Equity

[dgatwood]

The law would invalidate it because it isn't the sort of thing that a reasonable person would expect to find in a contract of this type, and because the contract term would probably be per se illegal anyway.

Re:Law and Equity

[rahvin112]

You are significantly mistaken. The courts don't throw out "unreasonable" contracts people willingly agree to. You are perfectly able to sign rights away and most of the US courts will uphold that quite willingly and enforce it. In all but California you can sign away your right to be employed in the only field you are qualified to work in (non-compete clauses), only in Cali are these clauses illegal specifically because they were made illegal by the California legislature.

Now this first born clause would be thrown out for a very simple reason. It's not legal to sell babies, any clause that purports to do so is void as a matter of law. In general any clause that purports to sell people is not legal because you can't own a person in the US. This is the reason slavery contracts aren't legal even if both parties are willing.

As a general rule, the only contract clauses that will be tossed after willingly agreeing to them are clauses that are illegal as a matter of law or if you were under duress or mentally incompetent when the contract was signed. I'd happily sign a contract with a first born clause because there is no way such a clause would be upheld, the other stuff not so much.

The courts don't care if you read the contract or not, you signed it, you will be held to it. And clicking X is signing it in the US.

Re:Law and Equity

[dgatwood]

You are significantly mistaken. The courts don't throw out "unreasonable" contracts people willingly agree to.

The legal term for this is "unconscionable", not "unreasonable", and yes, the courts do throw them out routinely—particularly in contracts of adhesion. Stanford Law Review vol. 63:869-906 gives a good summary of how the courts have fixed various unconscionable contracts and other unfair contracts.

Re:Law and Equity

[david_thornley]

EULAs are contracts of adhesion, since there's no negotiation possible and it's to the benefit of the party writing them. Those are normally still valid, but they're held to a higher standard. The courts will interpret any ambiguity against the party writing the contract, and will throw out provisions it finds "unconscionable" (which isn't a well-defined concept). If the provision is reasonable in the light of what the contract is for, it'll be upheld. If it's unreasonable, and either irrelevant to the purpose (turning over one's first-born is not particularly relevant to web apps) or excessive and not obvious, it might well be tossed out.

Non-compete agreements and non-disclosure agreements are typically signed in the course of job negotiations, pertain to the job, and are generally not considered contracts of adhesion.

Doesn't matter

[mrun4982]

Such a license would never hold up in court anyway. There has already been cases where these licenses were ruled not legally binding.

Fix the damn TOS

[qbast]

The problem is not with users being lazy or stupid as it is suggested in the article, but with TOS. For example Apple's TOS is 56 pages long and reading it won't you much good since without lawyer translating from legalese to English you are probably going to miss quite a lot of legal traps anyway. The 'fix' is to stop treating TOS as if it was a law - at best it is a list of company's wishes and hopes.

Nobody reads that shit

[presidenteloco]

And sooner or later, a sensible judge will throw the terms of such a "click here" agreement out in an important case, with a ruling that states "everybody knows that nobody reads that shit" therefore it's invalid because it was not effectively communicated. This is valid legal reasoning because the context is that people are bombarded by impractically large numbers of these things in their everyday use of internet services. It is reasonable to infer that people will routinely start ignoring the fine print.

Oh, and while we're on the subject of fine print, I'm hoping for the first ruling that says along the lines of "The biggest demographic; people over 50, can't read that shit. It's too small. Therefore it is invalid. Bam. Case closed."

I Am Not A Lawyer But I Play One On The Internet

Re:Nobody reads that shit

[war4peace]

I Am Not A Lawyer But I Play One On The Internet

Acronym being "I ANAL BIPOOTI" - sounds like a Thai massage place.

Re:Nobody reads that shit

[Shadow of Eternity]

Not just that people are bombarded by them, but the very nature of EULAs violates most basic principles of contract law. If I buy the average piece of software I don't get to know what the EULA is until it's too late to back out, virtually all EULAs are enormous and often extraordinarily invasive and one-sided, and there's never adequate consideration for the agreeing party.

Re:Everyone knows this, why it continues is beyond

[Scoth]

I was recently installing some software, and the actual, official documentation from the vendor had you skipping the EULA and typing Y to agree (Linux CLI install, so you could either space through it or "q" to skip it). My team and I wondered a bit at the legal implications of what would happen if a vendor telling you to skip their EULA ended up in court.

Not necessarily clueless; potentially pragmatists

[DRJlaw]

I'm a lawyer. I plow through these things regularly for clients to advise them whether certain objectionable things are present, or occasionally even to negotiate the fine details of the wording.

That being said, I don't read them at all when signing up for services for myself. Oh, I'll do better than most and actually read the closing documents for my house, or for the loan for my car, or an employment agreement, because there's real money involved there. But for "free" services, and even that $25/mo Netflix account, no, it's not worth the time or aggravation. You draw the line somewhere based upon how much you'd write off by saying "screw it, I'm out of here." Guess what -- to a surprising extent my business clients do the same thing.

The extreme example here is not relevant because there's no way on Earth that a court will permit them to collect. They're of course trying to highlight that people don't read even terms that can be enforced against them, like binding arbitration clauses. I applaud the effort in principle, but it's a losing cause because it ignores a more fundamental problem that people instinctually recognize:
For most individuals, the terms are essentially non-negotiable.
If you want to hire a programmer to do something for you, by all means, negotiate in detail and do it well. If you want to buy consumer software, take it or leave it. If you're signing up for some new cloud service, take it or leave it. Unless you are willing to put in a lot of effort, can generate enough outrage to create an ad-hoc negotiating group, or are confident that you can find an advocate within the business, reading the agreement changes nothing.
Also, very few ordinary people are deciding whether or not to enter into a contract based upon enforceable terms like an arbitration provision. That's a very high order effect in their personal utility function, if it would be considered at all.

Short summary: If the license says something that is enforceable in court, odds are super good that you can't get it removed with anything short of an activist campaign. If that's not your thing, you're still a decent human being for not caring. I understand that you have other priorities. If the license says something that is not enforceable in court, why should you care at the outset? Deal with it if the circumstance arises. Again, you have other priorities.

I call it pragmatism. I don't care whether you do or not.

Contract abuse: Where will it all end?

[Futurepower(R)]

One day I went into my kitchen, and was shocked. Bill Gates was eating my ice cream. I asked him why he was there. He said it is clearly stated in the Microsoft "Terms and Conditions" that anyone associated with Microsoft can do anything they like.

So, I asked Mr. Gates why he wanted to eat my ice cream. He could buy his own. He said he likes to have as much power as possible over everyone else.

Okay, that's not a true story, but it is similar to stories in the media. Microsoft can spy on anyone. Microsoft has tried to kill TrueCrypt. Microsoft can begin charging monthly for the Windows operating system. Microsoft can change the user interface of Windows and try to sell everyone "apps".

Standard TOS

[Anonymous Coward]

It would be nice if there was one, two or maybe three standardized, generic and reasonable TOS that everybody can stomach.
That way the user has only to read one sentence and click OK if they agree.

Re: Not necessarily clueless; potentially pragmati

[ljw1004]

When I bought my house there were 40+ pages of documents that I had t sign at the end, for deed transfer I think.

I skimmed through them, noticed one term that looked wrong, pointed it out. They said "you're right! In our ten years of doing business no one has ever noticed this mistake before. I'll fix it up for you here and now."

Not Libertarian society so we're OK

[dbIII]

The law of the land still trumps agreements between people and companies so we are saved from such ridiculous terms of service.

People are used to illegal "no refunds" terms of service anyway and take wild attempted power grabs as being a worthless unenforcable tissue of lies anyway.

Libertarians take note - do you REALLY want a society where the law of the land does not protect people from abusive agreements between parties? Take a look at the parts of the world where parents sell their kids into sex slavery if it hasn't sunk in yet that such a thing is an incredibly bad idea.