Fond Fantasy: If $Company can't demonstrate that their average user has actually read (and passably understood) their ToS, then a basic requirement of Contract Law is clearly not being fulfilled...so their ToS is not legally binding on their users.
Y.T.’s mom pulls up the new memo, checks the time, and starts reading it. The estimated reading time is 15.62 minutes. Later, when Marietta [her boss] does her end-of-day statistical roundup, sitting in her private office at 9:00 P.M., she will see the name of each employee and next to it, the amount of time spent reading this memo, and her reaction, based on the time spent, will go something like this:
• Less than 10 min.: Time for an employee conference and possible attitude counseling.
• 10-14 min.: Keep an eye on this employee; may be developing slipshod attitude.
• 14-15.61 min.: Employee is an efficient worker, may sometimes miss important details.
• Exactly 15.62 min.: Smartass. Needs attitude counseling.
• 15.63-16 min.: Asswipe. Not to be trusted.
• 16-18 min.: Employee is a methodical worker, may sometimes get hung up on minor details.
• More than 18 min.: Check the security videotape, see just what this employee was up to (e.g., possible unauthorized restroom break).
Y.T.’s mom decides to spend between fourteen and fifteen minutes reading the memo. It’s better for younger workers to spend too long, to show that they’re careful, not cocky. It’s better for older workers to go a little fast, to show good management potential. She’s pushing forty. She scans through the memo, hitting the Page Down button at reasonably regular intervals, occasionally paging back up to pretend to reread some earlier section. The computer is going to notice all this. It approves of rereading. It’s a small thing, but over a decade or so this stuff really shows up on your work-habits summary....
General:
This License is the complete statement of the agreement between the parties on the subject matter, and merges and supersedes all other or prior understandings (no mater how conveyed), purchase orders, agreements and arrangements. This License shall be governed by the laws of %%LOCATION%%. Exclusive jurisdiction and venue for all matters relating to this License shall be in courts and fora located in %%LOCATION%%, and you consent to such jurisdiction and venue. You agree to grant %%COMPANY%%, Inc. a non-transferable option to claim, for now and forever more, your immortal soul. Should %%COMPANY%%, Inc. wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within five (5) working days of receiving written notification from %%COMPANY%%, Inc. or one of its duly authorised minions. There are no third party beneficiaries of any promises, obligations or representations made by %%COMPANY%%, Inc. herein. Really we just wanted to see if anyone read this stuff, you can keep your soul, for now. Any waiver by %%COMPANY%%, Inc. of any violation of this License by you shall not constitute or contribute to a waiver of any other or future violation by you of the same provision, or any other provision, of this License.
...
... or maybe your product is just that awesome it's worth your Immortal Soul after all :)
https://www.npr.org/2019/03/08/701417140/when-not-reading-th...
If you've meaningfully interacted with lawyers, you're all too familiar with how quick they are to say "that is not my area of legal specialty, so I don't know" for anything outside of their own narrow niches.
The stench of hypocrisy, where lawyers can disclaim competence for ~99.9% of all legal questions, yet expect Chris C. Consumer to be competent to understand all the ToC's that they face in daily life...yeah. People who just plain hate lawyers seldom lack for moral justification.
Severance clauses say that if any part of the terms are struck down for any reason, the rest of the agreement stays in effect.
By banning severance clauses, companies would be forced to provide reasonable terms. Because if they put anything unconscionable anywhere in the agreement, the entire agreement will be struck down on the grounds of unconscionability.
But when terms are imposed on someone who is never represented by counsel when accepting them, I cannot see even a theoretical reason to not void them, especially when another part of the contract is struck down for unconscionability.
I stand behind my proposal, but I'll re-frame it: severance clauses should be unenforceable against an unrepresented party when any part of the contract was struck down on the grounds of unconscionability.
This policy, which I promise I have considered in some detail over the last decade, would go a long way to making contracts between parties of uneven bargaining power more fair overall.
Maybe it's even more odd that the system sort of works at all.
Essentially, the way to opt out of a ToS you haven't read or don't understand is not to use (accept) the company's services (offer). Consumers are assumed to know "there's no such thing as a free lunch," thus when a company offers a product there must be something expected in return for accepting that offer. The onus is on the consumer to evaluate whether accepting the company's offer is reasonable or fair. Requiring offerors to second-guess acceptors' evaluation processes seems like it would come with its own set of problems.
To be fair, a lot more thought and time and emotional turmoil goes into buying a house than a $10/mo SaaS. But the basic principles of contract law are pretty similar between the two. The difference being that when buying a house, the seller will generally entertain counter-offers; when buying a SaaS product, competitors are the ones expected to have alternative (maybe better, maybe worse) offer terms.
My libertarian take on this is that we should encourage more competition, so that more companies will compete on the basis of being consumer-friendly. Making it harder for consumers to buy products (through more onerous requirements in order to "accept" a ToS) makes it harder for smaller companies (who don't employ lots of lawyers) to compete, and inevitably leads to malicious compliance by the bigger players (e.g. EU cookie banners).
How would your method work on that?
My point being: statistics has developed arcane methods to describe a population. One should not blindly force the most common measure on every case.
Some sites won't let you click Accept until you've scrolled all the way down. But you could track how long they spent on the screen, etc. (Some may copy the terms and paste them into a full-screen view elsewhere to review them, I do this, so I don't even scroll it, but I do spend more than a few moments on the screen.)
That aggregate data could then show that the average user spends 2.3 seconds on the screen, just enough to find and click Accept, and has no idea what they're accepting, therefore yadda yadda.
I would love to argue that because the user has no meaningful negotiation power, it's a Hobson's Choice, they can't even submit feedback like "The reason I'm noping out is because you share X and Y data", there's no ability to edit the contract and send it back and see if the other side accepts your modified terms, etc, that it's not an equitable arrangement.
There is no such friction when signing on using a ToS button, lowering the amount of time users spent with the contract they are about to sign (and by extension, I would say, their understanding of said agreement).
It would be nice to have a 'summary' feature built-into the interface.