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Comment by crazygringo | Hacker News Reader

So, usually I associate super-shady things with hiding the fact that they're super-shady.

I'm thankful, but also genuinely curious, why they put this explicitly in their TOS.

It just kind of seems to be like the kind of person/org who would implement this shady stuff in the first place, would also actively hide that they're doing it.

Is there a legal reason that protects NightOwl by explicitly putting it in the TOS? E.g. does this prevent them from being sued for any of it, where they could have been successfully sued otherwise? Like it's technically do to all this shady stuff but only as long as it's in your TOS?

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I'm not a lawyer, but the terms of service are an agreement with the user, so yes. They're not hiding anything because then they'd get sued.

If they didn't disclose "this shady stuff" then the user can try to resolve their dispute via remedies stipulated elsewhere.

Really there are several ways they could have gone about writing this agreement. This is probably the simplest for everyone. This is also how the bigger orgs write their agreements. They state their intent and you have to agree or fuck off.

The badly written agreements (what you were expecting) are less honest and try to explicitly have the user waive some rights entirely including any remedies in or out of court, but those can usually be deemed unenforceable because they violate established rights and precedent rulings.

Also not a lawyer. I'd think there's a level of interpretation to the enforceability of a given clause if it's not adequately exposed or is unconscionable in fairness. I'm guessing it's not so easy as clickwrap = rock solid contract.

Sure if a majority of users expect apps to not steal your data or misuse your internet connection.

Sadly this isn't the case anymore. The layperson is distrustful by default and can only rely on the more astute to blow a whistle. Even a judge would just say to not install apps that aren't critical to your everyday life and be done with it. Nobody has the time to swat at flies.

> The layperson is distrustful by default

This sounds like it was written from an alternate reality. It doesn’t match my experience at all

Yeah distrust isn't enough to deter the layperson from using an app anyway. That's my whole point.

I'm curious to know why this is any more or less shady than an app that uses ads to monetize? Those ads use a ton of bandwidth and share a ton of information about you? If they're just passing some packets through your IP for web scraping what's the big deal?

Bright Data offers an SDK for app developers to monetize their apps this way (https://bright-sdk.com). Maybe I am naive but this seems exponentially better than monetizing by sharing every tidbit of information Google and FB can get about me as I move through the web. Genuinely curious why this is so negative?

This reminds me of the Jerry Seinfeld joke:

"I bought the Superman Halloween costume and on the side of the box it said 'do not attempt to fly'.

I always wondered about the kid who was:

- dumb enough to think they could fly

BUT

- thought to themselves 'wait, let me check the box first. Oh! Good thing I checked!'

The TOS sounds a little bit like the "do not attempt to fly" warning.

>I'm thankful, but also genuinely curious, why they put this explicitly in their TOS.

The guy's in the US, not China or Cyprus, so there's actually a chance he could get in trouble.

I’m no lawyer but my guess is that the bar is so low for what’s actually legal- and no one generally reads these EULA’s- that it’s easier just to have it in there.

The bar is intentionally low "for what's actually legal".

You really don't want the government interfering with the implementation details and business models of software products. That's a really bad road to go down.

The problem is really a lack of inspiration for both the dev and user. In this case someone made a trivial tool and didn't know how else to monetize it than being a scumbag and exploiting social norms and good will. The user also decided to use something that's dumb and not worth risking making any agreement with any entity at all.

Situations like this are where free software excels. Things that are inconsequential in premise should stay that way in practice.

A lot of "free" VPN apps do the same thing and I haven't heard of any of them getting in legal trouble. It's kinda like running a tor exit node except most buyers just wanna borrow the user's IP to scrape sites that are otherwise impractical to scape with just a captcha solver due to aggressive blocking of non-residential ISPs and heavy rate limiting.

The difference being that it's somewhat related to the app's operation. In this case, it's completely orthogonal to the app's marketed function.

> does this prevent them from being sued for any of it, where they could have been successfully sued otherwise?

As I understand it, anyone can sue anyone for anything. What matters is convincing a judge/jury that you have been wrongfully harmed by the defendant. So if someone can make a good enough case for damages stemming from this data collection, then they can successfully sue.

This doesn't prevent them from suing, but it makes their case significantly weaker if the defendant can argue that the user agreed to have their data collected.

Probably compelled by Apple, or removal from store.

The app isn't on the App Store. (switching light/dark is a private API so it wouldn't be allowed on the store anyway)

There is no way reviewers would accept that if they read it

There’s a lot the app is doing that would not be allowed through review. It’s distributed via Sparkle which is pretty common for mac apps.

My assumption is there is a non-trivial number of people who will never read or notice that. Much less understand the ramifications.

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