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Nutrition Facts for Contracts | |
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< | -- By NnamdiNwaezeapu - 16 Apr 2021 | >
> | -- By NnamdiNwaezeapu - 3 June 2021 | | | | |
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< | 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. | >
> | This essay addresses the problem of unread and unreadable clickwrap, browsewrap, and scrollwrap agreements (“Clickwrap Agreements”). To accomplish this goal we will explain why unread and unreadable Clickwrap Agreements are a problem, and then propose a solution by borrowing from the now widely adopted tool: nutrition labels. | | | | |
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< | 1 Why unread click-wrap agreements are a problem. | >
> | 1 Why unread Clickwrap Agreements are a problem. | | | | |
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< | “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." | >
> | “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. Further, a recent analysis of the 500 most popular on-line consumer contracts (including Facebook and Uber) found that most were written to the same level as academic articles, and as such were incomprehensible to the average consumer. Source: The Conversation. | | | | |
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< | 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. | >
> | Despite these facts, our legal system, with its fetishization of bright-line rules and bias towards “efficiency,” treats these unread, and unreadable contracts as enforceable. | | | | |
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< | For those who are unaware, the basic concept of a “duty to read” is as follows: | >
> | For the uninitiated, the “duty to read” concept has been around for almost half a century, and its essence is well-stated by this quote from a 1974 Fordham Law Review article written by legal scholar John D. Calamari: | | | | |
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< | 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" | >
> | 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: John D. Calamari, Fordham Law Review | | | | |
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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.
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> | This “duty to read” requirement, paired with the fact that most Clickwrap Agreements are not read or even readable, allows for businesses to include terms like granting companies the right to sell user information to third parties, track user movements via gps, and in some cases, even grant perpetual licenses to a user’s likeness. | | | | |
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< | 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 will cite cases like the famous Williams v. Walker-Thomas Furniture Co. as evidence that consumers will be protected whenever Clickwrap Agreements are unconscionable. (See Williams v. Walker-Thomas Furniture Co., 121 U.S. App. D.C. 315, 350 F.2d 445 (1965)). | | | | |
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< | 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 Calamari points out, 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: John D. Calamari, Fordham Law Review. And unfortunately, not much has changed since 1974. Specifically, the BYU Law Review published an article in 2012 that describes the current issue: | | | | |
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Why are these cases to be cited not cited?
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> | “When Judge Sotomayor handed down her opinion in Specht in 2002, she explained that the enforceability of these agreements could really only be justified where the user should reasonably know what she is doing when she enters the site or clicks to accept. This caution has eroded over the last decade, however, as courts have become more and more comfortable with enforcing online agreements almost regardless of the conspicuousness of terms.” | | | | |
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> | Source: Cheryl B. Preston, McCann, Eli W., BYU Journal of Public Law. | | | | |
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< | 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. | >
> | For this reason, and as alluded to in the conclusion of both Calamari’s 1974 article and BYU Law’s 2012 article, the trend regarding Clickwrap Agreements will likely require legislatures and administrative bodies stepping in to regulate these forms. | | | | |
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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?
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> | 2 A solution to the problem of unread and unreadable Clickwrap Agreements. | | | | |
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> | “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). | | | | |
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< | 2 A workable solution to the problem of unread and unreadable clickwrap, browsewrap agreements | >
> | The problems we faced around understanding the contents of our food, are similar to the problems we currently face with respect to what is in our Clickwrap 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.”_ Id._ | | | | |
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< | “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." | >
> | A potential solution to this problem is to establish a “data label.” Specifically, borrowing from the legislation of the Nutrition Labeling and Education Act (NLEA), a Data Labeling and Education Act could be passed, forcing technology companies to clearly display the data they are collecting, and measure that against a “healthy” data collection standard. | | | | |
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< | 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.” | >
> | From a technical standpoint, we already have examples from organizations like Terms of Service Didn’t Read demonstrating that such a “data label” is possible and can be effective. Source: tosdr.org. The biggest challenge, therefore, will be actually getting the legislation passed. Specifically, in addition to the inevitable pushback from “Big Tech,” the available government agencies that could effectively handle such a task (e.g. the FTC) are limited. Thus, in order for a data-labeling scheme to work, it will require the same forces that the nutrition label needed to get implemented, namely, immensely strong demand from citizens, as well as a government that recognizes its importance. | | | | |
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< | 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.
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.
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> | However, if the history of the nutrition label is any guide, even under ideal political circumstances it could (and likely will) take as long as 60 years for widespread and effective implementation of a “data label.” Id. Thus, in the meantime, we will therefore need to continue to search for other ways to help protect users from predatory technology companies. Because as we have seen in the food world, despite the existence of nutrition labels, 39.6% of Americans are still clinically obese. Source: American Medical Association. As such, “data labels” will not solve all our problems, and many will still continue to consume data “big macs.” However, for those who do want to make “healthier” choices about the services that they use, this could prove to be an effective first step. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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