Hacker News Reader

Comment by rsync | Hacker News Reader

"... wrongful death lawsuits are typically the only way to hold these companies accountable. Yet, there are very few people who have not agreed Abbott's toxic terms of their proprietary companion application ..."

I (a non-diabetic interested in athletic performance) use an Abbott CGM sporadically and I have absolutely not agreed to any terms of service nor any other agreement of any kind - legal or otherwise.

I bought a purpose-specific, old model iphone from "Back Market" with no SIM card, very briefly allowed it wifi access long enough to download the "Lingo" app, then set the phone to airplane mode. Dedicated, throwaway email and AppleID.

It has never left airplane mode and it works perfectly. Pairing subsequent sensors does not require taking it out of airplane mode.

Further, I have no legal relationship nor have I made any agreement of any kind with Abbott.

I highly recommend that any user of these devices do the same.

View on HN

> I bought a purpose-specific, old model iphone from "Back Market" with no SIM card, very briefly allowed it wifi access long enough to download the "Lingo" app, then set the phone to airplane mode. Dedicated, throwaway email and AppleID.

None of this actually matters if you went through the steps to use the app. The app is designed such that you agree to the terms before you can use it.

You can use all the throwaway emails, devices, VPNs, and other tricks in the world, but unless you can reliably demonstrate to a court that you were utilizing the app in a way that didn’t involve accepting any terms of service then they could simply demonstrate that it’s part of their app flow.

Even using tricks to utilize the device outside of the app wouldn’t help, because they could simply demonstrate that you weren’t using it as designed or intended.

I think my initial comment has been misunderstood.

I can't speak to, nor do I have any interest in, legally pursuing this random vendor.

The op implied, correctly I assume, that the Abbott terms are "toxic".

I am simply restating, as I very commonly do, that this vendor is not a government agency. They are not the IRS. They are not law enforcement. They are an adversarial party until proven otherwise and you owe them nothing.

In most cases you can’t use the device without agreeing to the terms of service right?

For example a service I use a lot recently changed their terms of service - there was no way to keep using the service without agreeing.

Might be different for devices or services that don’t need internet to function; but even for those you have some “activation” step nowadays that forces you to agree before “unlocking”

"In most cases you can’t use the device without agreeing to the terms of service right?"

Yeah ?

Who agreed to that ToS ? Abby McAbbott ? With no phone number ? A throwaway email address ?

As I said: I have not entered into any agreements of any kind with Abbott. You should not either.

> Who agreed to that ToS ? Abby McAbbott ? With no phone number ? A throwaway email address ?

I don’t think this matters in the way you think it does. If they can demonstrate that you have to click through the ToS to use the device and app, then the burden would be on you to show that you did not accept the ToS to use the device. But therein lies the catch: If you found a way to circumvent their setup process, you wouldn’t be using the device as designed or intended.

"If they can demonstrate that you have to click through the ToS to use the device and app ..."

There's nothing to demonstrate. We will have no interactions.

The op implied (probably correctly) that their ToS is toxic. I am pointing out that there is no reason for you to enter into that ToS.

Are you suggesting that I, an anonymous piggyback user of their service, would blow up my anonymity (and all of the protections and peace of mind that it affords) by attempting to reestablish some form of legal contact ?

No. It's easy come, easy go and that's just fine with me.

> There's nothing to demonstrate. We will have no interactions.

Ok? Then it doesn’t matter if you accept or not.

The ToS doesn’t come into play unless there’s legal action. If you’re never going to enter into legal action with the company then it doesn’t matter if you accept the ToS or not.

I think we agree with one another.

I'm simply trying to reiterate - as often as possible: you do not need to tie your personal identity to products and services like this.

Merry Christmas!

But once it matters, you will wish you did!

> If you found a way to circumvent their setup process, you wouldn’t be using the device as designed or intended.

Liability in civil court is not as simple as you posit. Severability and judge discretion are but 2 ways that immediately can invalidate this line of argument. The cause of actual damages are almost always scrutinized, meaning the company would have to prove that the legal agreement could somehow have prevented the damage. Courtrooms are often mischaracterized as following robotic rules and precedence to ill-effect, as if there aren't people in the courtroom using good judgement. This is largely because those cases are the ones most publicized, not because it's the norm.

That’s orthogonal to the comment I’m responding to. The parent commenter was claiming that because they left a device in airplane mode when they accepted the ToS, it doesn’t count. Like it’s a loophole that allows one to accept it but not have it count.

The actual terms of the ToS will always be evaluated in court. You can’t, however, go into court and argue that the ToS doesn’t apply because you put a fake name into the app and left it in airplane mode.

You also wouldn’t get anywhere if you bought their device but used it with your own reverse engineered app or something, as the app is considered part of the product.

Fair enough. I apologize for my misunderstanding.

Doesn't really work that way. If you want to sue Abbot, then you have to reveal yourself. At which point, it will be clear that you were in fact using the product and did in fact agree to the ToS. If you never sue Abbot, then sure. But then it doesn't matter.

Part of the benefit of CGM’s is you can automatically load your readings to your doctor. I have a T1 child, so when I call with a problem I can get quick answers.

Related, Abbot previously had problems with their freestyle lite test strips. There were lawsuits, fines and most insurance dropped them from their covered diabetic suppliers.

Just imagine how different the world would be if this wasn't allowed and any time a ToS was pushed out like this the user had the option to offer a counter ToS and the company must have a human look it over and agree/disagree within a set period of time.

You know, Kind of like a real contract.

> the option to offer a counter ToS and the company must have a human look it over and agree/disagree within a set period of time.

You technically do have this option. You can send your own terms to a company’s legal team.

The answer will always be no. A law enforcing them to respond in a certain period of time won’t change that. Always no.

It is never cost effective to have lawyers review individual contracts for relatively cheap devices.

Then there is something wrong with our legal system if only one portion of the population seems to be able to avail themselves of contracts. Seems like a failure of the entire legal apparatus. No more ToS.

> I highly recommend that any user of these devices do the same.

No thank you. I have to wear these devices 24/7 to keep me alive, and it was a huge quality of life improvement when I was able to control them all from my phone. I see literally no benefit to doing what you suggest.

HN School of Law: you can win big legal cases that don't exist on nerd technicalities that don't work in courtrooms that aren't real. Also you can pass their version of the Bar for $99 and your e-mail address.

LOL that's crazy, but I would also recommend that any user of these devices who don't have an actual medical issue that requires the device to work, for whatever value of "work" it is capable of ... maybe consider doing that. Just like I put my modern TV in VLAN purgatory.

But if you actually have any form of diabetes... definitely do not do that. Unless you are also rocking some other brand. ¯\\_(ಠ_ಠ)_/¯

This is such a bizarre gotcha in a world of rapidly decreasing technical and civil rights. I'm still waiting for someone here to pop out of the gallery during one of these trials going "well, akshually...", and turning everything around. Doesn't seem to be moving the needle, as it were.

If you ticked the agree-to-TOS box (even if anonymously and offline) then you still "agreed" to the TOS. At least in a legal sense.

I think you might be conflating some things.

Reply on news.ycombinator.com