1 Why unread Clickwrap Agreements are a problem.

2 A solution to the problem of unread and unreadable Clickwrap Agreements.

Why is the author, John Calamari, not credited? Why don't you point out to the readers that this article is almost fifty years old? Hardly of the vintsage one would expect for discussion of online terms of service.

Why are these cases to be cited not cited?

Why is this "Fordham's article"? How can reliance on a 1974 article be appropriate here, specifically as a guide to current law. Where's the research that's not older than the Internet?

The best route to improvement is to bring the facts and the speculations into somewhat better balance. Legal developments in the last half-century should be considered. Actual efforts to deal with online terms of service, like Terms of Service Didn't Read even more so.

On the other side, you can strengthen the speculative construction of a major statutory scheme by efforts to connect to political realities. A labeling-disclosure scheme needs an agency with a strong organic statute and broad jurisdiction. That's the Federal Trade Commission, which currently exercises its powers in the area. And there is no conceivable support at FTC for the legislation you are proposing. Some consideration of the actual political history of food labeling wold help to explain why.

Nutrition Facts for Contracts

-- By NnamdiNwaezeapu - 16 Apr 2021

This essay aims to propose a solution to the problem of unread and unreadable clickwrap, browsewrap, and scrollwrap agreements. To accomplish this goal we will first explain why unread and unreadable clickwrap, browsewrap, and scrollwrap agreements are a problem, and then we will propose a workable solution to the problem by borrowing from the now widely adopted tool: nutrition labels.

1 Why unread click-wrap agreements are a problem.

“A Deloitte survey of 2,000 U.S. consumers in 2017 found that 91% of people consent to terms of service without reading them. For younger people, ages 18-34, that rate was even higher: 97% did so.” Source: USA Today, "What you need to know before clicking 'I agree' on that terms of service agreement or privacy policy". Further, a recent analysis of the 500 most popular on-line consumer contracts (including Facebook, Uber and Air BnB? ) found that most were written to the same level as academic articles, and as such were incomprehensible to the average consumer. Source: The Conversation, "Research shows most online consumer contracts are incomprehensible, but still legally binding."

Despite this fact, our legal system, with its fetishization of bright-line rules and its unapologetic bias towards “economic efficiency,” burdens consumers with a “duty to read,” treating these unread, and unreadable contracts as enforceable.

For those who are unaware, the basic concept of a “duty to read” is as follows:

A party who signs an instrument manifests assent to it and may not later complain that he did not read the instrument or that he did not understand its contents. Source: Fordham Law Review, "Duty to Read--A Changing Concept"

This “duty to read” requirement, paired with the fact that most agreements are not read or even readable, allows for businesses to include terms that are largely one sided, and in many cases harmful to consumers. For example, many agreements grant companies the right to sell user information to third parties, track user movements via gps, track user IP addresses, and in some cases, even grant perpetual licenses to a user’s likeness. Yikes!

Supporters of the duty to read rule will cite to cases like Weaver v. American Oil Co., Henningsen v. Bloomfield Motors Inc., and the famous, Williams v. Walker-Thomas Furniture Co. as evidence that the judicial system will protect consumers when these clickwrap, browsewrap, or scrollwrap agreements result in unconscionable outcomes for consumers.

But as the Fordham Law Review points out in its piece entitled, Duty to Read--A Changing Concept, there is not only, “inconsistency in the authorities regarding [the theories to] be applied, but apparently opposite results are being reached in cases with substantially similar fact patterns.” [Source: Fordham Law Review, "Duty to Read--A Changing Concept"]] For this reason, and as alluded to in the conclusion of Fordham’s article, the trend regarding clickwrap, browsewrap, and scrollwrap agreements will likely require legislatures and administrative bodies stepping in to regulate these forms. A potential example for legislatures and administrative bodies to follow in addressing this problem is that of the nutrition label.

2 A workable solution to the problem of unread and unreadable clickwrap, browsewrap agreements

“In the summer of 1989, concerned that food labeling did not allow Americans to take advantage of the latest advances in nutrition, Dr. Louis W. Sullivan, then Secretary of the U.S. Department of Health and Human Services (HHS), directed FDA to undertake a comprehensive initiative to revise the food label (FDA, 1990). He later stated that, “As consumers shop for healthier food, they encounter confusion and frustration… . The grocery store has become a Tower of Babel and consumers need to be linguists, scientists and mind readers to understand the many labels they see.” Source: Institute of Medicine (US) Committee on Examination of Front-of-Package Nutrition Rating Systems and Symbols, "Front-of-Package Nutrition Rating Systems and Symbols: Phase I Report."

The problems that we previously faced around understanding the contents of our food, are similar to the problems we currently face with respect to what is in our clickwrap, browsewrap, and scrollwrap agreements. The current agreements do not allow users to “take advantage of the latest advances” in data privacy learnings, and many users who want to use products that respect their data privacy encounter much “confusion and frustration.”

A potentially workable solution to this problem therefore is to establish a sort of “data label.” Specifically, in 1990 Congress passed the Nutrition Labeling and Education Act (NLEA) one of the most important pieces of legislation in the past 50 years. The NLEA gave the FDA the authority to require nutrition labels on most food products, and also directed the FDA to create clear standards for what nutrients should be included on said food labels. Additionally, the NLEA directed the FDA to establish a recommended quantity of nutrients that would “assist consumers in maintaining healthy dietary practices.” Source: Institute of Medicine (US) Committee on Examination of Front-of-Package Nutrition Rating Systems and Symbols, "Front-of-Package Nutrition Rating Systems and Symbols: Phase I Report."

The same thing could potentially be done with clickwrap, browsewrap, and scrollwrap agreements; a Data Labeling and Education Act (DLEA) so to speak. The DLEA could give authority to the Office of Cyber Security & Communications, for example, to require "data labels" on most internet products. The office could also then create standards for the kinds of data collection that must be listed on the “data facts” label. This could include, gps location tracking, ip address tracking, third party data sales. These standards could then be measured against an “ideal” data privacy standard.

An effective implementation of this “data label” of course will require a much more thorough analysis. However, the ultimate result of this approach would be that users would be able to quickly, and at a glance, determine how “healthy” a particular app/website is before using it. As we have seen in the food world, putting something like this in place will not stop people from consuming the data equivalent of snicker bars and cookies, but it will allow those who want to “cut back” to make more informed decisions about the services that they use.

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