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

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.

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.

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".

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.

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.

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.

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.