Comment by TheAceOfHearts | Hacker News Reader

Comment by TheAceOfHearts | Hacker News Reader

A bit tangential, but I think services which include an arbitration clause should be forced to display it up front in plain language during registration and get clear confirmation from the user, and it should be strictly opt-in.

Ever since GDPR became a thing I started reading the Terms of Service of every major site I use.

Yesterday I found out my Starbucks account has a forced arbitration clause which you can only opt out of by sending a physical letter to their headquarters, and only if you do so within 30 days of having signed up. This is customer abuse at its finest, and should definitely not be legal. If I can sign up online I should be able to opt-out online, at least.

Even worse is their linking policy, which I cannot imagine is actually legally enforceable. How can linking to a publicly accessible page have terms associated with it? And the terms are incredibly user-hostile, since it basically says you can't link to them if you're saying anything bad or negative about the company.

I'd normally include a link, but I guess you'll have to search for it yourself if you want to confirm what I'm saying. Just look up "Starbucks Terms of Service", it'll be the first result ;).

One thing I love about the GDPR is that you can consent to data processing, but the requirement is that you can withdraw consent and "It shall be as easy to withdraw as to give consent".

So "click a button here to consent, send a written letter here to withdraw" means you don't have consent in the first place.

In that particular case, it seems that the problem is with how the regulation was implemented, rather than the regulation itself.

A lot of contracts (especially ToS) are just throwing stuff at a wall to see what sticks. I've yet to see a ToS or EULA that's 100% enforceable in the EU and I'd be surprised to hear they're 100% enforceable even in the consumer-hostile, corporation-friendly US.

An overeager ToS is a good way to scare people who are unwilling to risk a legal dispute. In practice a lot of the more preposterous clauses are nonsense.

It doesn't matter if the nonsense provisions are ultimately enforceable, so long as they're credible enough to be litigated. The courts provide a battlefield where the army of company lawyers will fight you in a lopsided war of attrition that ends with your financial ruin. Might makes right.

Seems like there should be a fine for putting unenforcable clauses into contracts to discourage this practice

I agree, but I think your perspective on this depends on who you think the courts are supposed to serve.

In the US, courts enabling wealthy corporations to smash individual citizens into meat paste are working as intended. It is "justice for sale", albeit indirectly -- you don't pay the judge, you pay for enough lawyering to destroy the opponent, win or lose.

Legal questions are rarely truly settled. You might think a clause is unenforceable based on some lower court rulings in your state, but a different lower court could is still free to rule the other way, an appeals court could still overturn, a federal court could overrule the state courts on a Contract Clause theory, etc. And even in the rare case where there is an on-point US Supreme Court ruling, the Supreme Court is free to reverse itself tomorrow.

Also, consider that you and I are free to agree to anything we want, enforceable or not. All that enforceability tells you is whether a court will be willing to intervene. For example, we can agree that you will donate a million dollars to my foundation, but a court will likely not enforce that because I didn't give you anything in exchange (the doctrine of consideration).

Funny thing is that if there's a single illegal phrase in the agreement, in my country, whole agreement illegal and thus void.

Since my country is in the EU it pretty much means that in my country law agrees with practice of ignoring all ToS by deefault.

That's why most contracts contain a clause that specifically accounts for this: https://en.wikipedia.org/wiki/Severability

That said, under German consumer protection laws a ToS may also not contain anything that could be considered "surprising" (which is generally interpreted in favor of consumers) so most ToSes are fairly pointless as soon as they go beyond the basics.

Agree.

What bothers me most is the price David has to pay to slay the ToS of the Goliath. It is prohibitive, to say the least. Thus, there is nothing to stop this trend of ridiculous ToSs.

Such violation of human rights should attract swift and exemplary punishment. Also, the small guy should not pay for this community service he is performing.

> there is nothing to stop this trend of ridiculous ToSs.

That's easy right here. Let's just tax corporations 1¢ per user per word in their ToS.

Or just fine them if they try to assert rights they aren't legally allowed to assert. After all you're trying to trick consumers into thinking they are subject to a contract that's actually invalid.

I'd like to have a browser extension which, upon the click of a button, shows the EULA for the current website in plain English, and what it means for the user, written by a real lawyer.

how much would you be willing to pay for this service?

Didn't you know software developers and attorneys should be giving away their skills and time for free?

Software developers do not write ToSs. Attorneys get paid to make it intentionally overly complicated. The same ones can just get paid twice to turn it back to simple/understandable. Or maybe just get paid once by the company using the ToS and have them come up with something reasonably readable.

And if your job is to make other people's lives harder for no good reason other than to abuse them then yeah, maybe you should be legally obliged to fix that crap for free.

I think the above poster was talking about whomever is actually developing the extension and supporting infrastructure for this "EULA in plain English" button.

That's why I said it should be done by the original company and the same attorneys that made it complicated in the first place. Asking a 3rd party to do it for them on the user's dime is not really a solution.

As long as the software world keeps intentionally writing user-hostile, obtuse ToS documents and screaming bloody murder at the mere suggestion that a professional code of ethics that can be enforced by a regulatory industry body...then yes, I think it's someone's responsibility to do this pro bono.

Ideally, companies would pay for this (of course the lawyer should be completely independent, so companies could pay e.g. EFF which will then pay the lawyer).

However, to get this started, perhaps an organization like EFF or Mozilla can pay for the first 10-100 most popular websites?

This here is the problem. You shouldn't have to pay for something like this, it should be provided by default in a readable form.

Otherwise ask yourself this: how much are you willing to pay Amazon to not list your address and a list of possible items at that address for the whole internet to see?

Closest is ToS:DR https://tosdr.org/downloads.html

You should write the extension and find an attorney to help you. I'm sure it would be popular.

This is something we built in our spare time to help people: https://levelplayingfield.io/

You can use it to search for companies with forced arbitration agreements.

Also, this: https://blog.levelplayingfield.io/aaa-arbitration-waiver-dat...

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