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Comment by taurath | Hacker News Reader

How much does that have to do with their TOS update which went out on thanksgiving DAY (the most perfect time to get lost in everyone’s inboxes). The TOS update somehow tries to forbid class actions, requires you to go through an “informal” 60 day process before any legal action, and forces you into binding arbitration.

Functionally you as a customer have next to no legal rights, according to 23andMe lawyers who cooked this up.

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Does this hold up in court?

At least in Germany any contracts that are heavily in favor of one side will be declared void if it comes to court.

I'm not a lawyer so I can't answer the question, but it will defintely complicate going to court, and I'm confident that the company has more lawyers and more money for lawyers than the average user. A class action suit may follow, but only if enough people and lawyers are willing, and it'll likely end up with a pittance in damages paid in a settlement, eventually.

What really interests me is "Are ToS changes absolutely binding?"

I am also not a lawyer. But I think there are two types of changes to ToS.

One is purely administrative. For example, they might change the methods available to reach for support. For example, they might say that you are no longer able to send a Fax to get support help. Or that their domain name changed.

Second is something that changes the service that you are receiving. For example, when you have bought their product they said "we are offering free support for all owners or our doodad". But then one day they decide that support is now paid option for all existing customers.

So the question is: can ToS changes that changes the service/product that you have already paid for binding without your consent? If they decide to introduce extra protection from class action, requirement for arbitrage, etc. is this just administrative or is it actually changing the service you are receiving by restricting your rights?

It doesn't really matter in practice, because the discipline around contract law is (typically) based on reasonableness of terms - I can't sign TOS that say I'm a slave, nor will TOS apply if such a clause is introduced at a later stage.

Regardless of whether terms are changed for administrative or product reasons, what matters is the reasonableness of terms imposed on the other party.

Not just "are the changes binding" but also "are the changes relevant". The changes might be binding for future services, but previous services were provided under the old terms; so you can make an argument that any arbitration clause in the new terms doesn't apply to services rendered before the new terms took effect.

Most terms of service include automatic acceptance of future changes, so if you continue to use the service the terms apply to the past too.

“23andMe may make changes to the Terms at any time. If we make a material change to the Terms, we will notify you, such as by posting a notice on our website or sending a message to the email address associated with your account. By continuing to access or use the Services, you agree to be bound by the revised Terms.”

In the US, yes, these kinds of contracts are unfortunately upheld under current laws and court rulings that are valid nationwide. Of course there are limits and exceptions, but those boundaries have been broadened in recent decades to allow these kinds of terms anywhere in the US, even for consumer contracts.

The US Federal Arbitration Act from 1925 prohibits courts from setting aside valid arbitration agreements. It's recently been interpreted to prohibit almost any kind of interference, so it's being actively enforced if not extended.

Yes, that’s what I’m referring to. I hope that some of the legislative reform bills eventually pass, but I don’t anticipate Congress being sufficiently functional and sufficiently protective of consumer and employee rights to do so any time soon.

Depends a lot on the jurisdiction several European courts have thrown put EULA's and TOS' agreements as being entirely invalid in a business to customer relationship, but im sure some American court somewhere will declare those as valid contracts.

Within limits, in the United States, yes. https://www.law.cornell.edu/wex/adhesion_contract_%28contrac...

Just got an email update from them. It sounds like you can opt out of the new terms. Not sure what the consequences will be.

> We encourage you to read the new terms in full. Please notify us within 30 days of receiving this email if you do not agree to the terms, in which case you will remain subject to the current Terms of Service. If you do not notify us within 30 days, you will be deemed to have agreed to the new terms.

Notification email: legal@23andme.com

If 6.9M users were to start arbitration proceedings - 23andMe might prefer a class action lawsuit.

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