I think it's reasonable to assume that when the service cannot be accessed before the accessor clicks "agree", and the accessor clicks "agree", that constitutes a valid contractual agreement. It's no more silly than mailing in a credit card application and being bound by those terms.
The fundamental attributes are present. There is a contract and you can agree to it or not. Your interaction with the company is viewing the terms the lawyers wrote and agreeing to them or leaving the website.
There is no signature, there is no proof of identity of the signing party (copy of personal ID, witness, ...). Usually no confirmation that other side also accepted it. No copy of ToS received after "accepting". We all know that it could be that, for example, my 4yo child clicked on it when I went to the toilet after reading first few paragraphs of ToS, and now I'm somehow bound to it? Also, it happens very frequently that you "accept" some ToS, and after two years you find on some forum that Google, or PayPal just changed their ToS without sending you the updated copy for acceptance.
Sorry, but too many things that are really different between ToS and a real acceptance of a Contract.
It seems like you are angered that you have to enter into a contract before using software, and you would prefer to just click "accept" and have that magically not be interpreted as you agreeing to the terms. "I'll use it but I don't accept the terms". I'd like that too, but I'm afraid that's not how it works.
I could as well write whatever ToS on my homepage with "accept" and "not accept" link with whatever terms, and then wait for Google bot to "accept" my terms. Do you think Google would be bound by their "acceptance" in the same way.
It's not like I was using my digital signature or whatever, it's just that someone clicked somewhere.
The burden of proof here is on the "vendor" or software provider. They need to prove that I accepted their terms, not the other way round. That's why many free services require credit card, copy of the ID and physical signature as a proof of identity. The fact that Google decided that this might be too expensive for them to enforce, and that is cheaper to just not do it is their choice.
A contract must consist of:
1. A "meeting of the minds." This means both sides come to a common understanding of what's in the contract. Basically, it means there's an offer by one side and acceptance by the other without changes.
2. Intention to be legally bound. Basically, this means that the context of a contract matters. It seems to boil down to commercial agreements generally being enforceable while others (e.g. promising money to family) are not.
3. Consideration. This is some sort of exchange of value. In short, a contract cannot be one-way. This is why you sometimes see e.g. things being sold for $1 rather than being just plain given away for free.
The way I see it, there are serious problems for click-through agreements for both 1 and 3. 2 is not a big deal, as despite the name, it doesn't appear to actually apply to the case where you click Agree without the intention to follow the contract.
One problem with #1 is that essentially nobody ever reads these things. In general, "I didn't read the contract I signed" is not an excuse, of course. However, I think this does (or should) change when everybody doesn't read it, because it means that the other party knows, or should know with reasonable certainty, that you're unaware of the contents. Normally you presume that each party is aware of the contents of the contract, but you can't do that with click-through agreements since it's widely-known that they go unread. A contract which I don't read and which you are well aware I didn't read should not be enforceable. For high-value, important contracts like buying a house, a person familiar with the contract will go over each page with you and have you initial it to affirm that you read it, precisely to avoid this problem. The combination of widespread failure to read the contracts and a complete lack of effort to ensure that you, personally read the one in question means that, IMO, there is no meeting of the minds.
Another problem with #1 is that there is either no opportunity to propose changes, or the other side never notices or reviews them. With a normal contract, I can cross out clauses, add or change wording, etc., at which point the other party can accept or reject my changes, or propose further changes. Where this really runs into trouble, I think, is when you edit the contract locally before clicking Agree. This is generally trivial using a DOM inspector for any click-through agreement found on the web. Imagine I take the ToS in question here and alter it to read, "In exchange for mikeash's use of the Google API, Google promises to pay mikeash the sum of ten million dollars." Then I click Agree. Should Google be bound by this agreement? I imagine you immediately and strongly say "No!" But why should I be bound by the original while they are not bound by the alteration? In a normal contractual setting, they have the opportunity to say yes or no to my proposed changes. They will, of course, say no. In this setting, they don't say no! They simply grant me access to their service after I "Agree" to the altered contract. Does this not imply acceptance on their part? If not, what's the difference between their situation and mine?
Finally, #3 seems to completely destroy the concept of any click-through agreement that isn't part of some sort of payment process. Terms of service presented as part of a checkout process would seem to be fine in this respect, but when presented as part of a free web site, it doesn't seem to work. They give you access in exchange for... nothing. Similarly, click-through software licenses seem to fail here because they show up after the money has been exchanged. I pay for a copy of software which I obtain, and only later am I presented with the EULA. Since the money and product already changed hands, there's no further consideration, and so the EULA should not have force.
That's my thinking. I welcome dissenting opinions.
But I think there's a very clear distinction between a simple agreement with the original and with altering the DOM. If you are clever enough to alter the DOM you definitely know that the alterations are not going to be sent back to the server. You also know that agreeing will let you use the service because the server will think you agreed to the original. That seems like a clear-cut case of fraud to me. I don't see why an agreement to the original contract is invalidated because you weren't offered the opportunity to make a counter-offer (I agree that's a shitty situation, though). That's why I think it's like a contract in the mail; you get an offer and you can agree to that or not. You can make a counter-offer but it will be binned.
Consideration isn't solely concerned with monetary purchases, is it? I imagine they can construe your incoming data as valuable. It would be interesting to know if sites like Reddit can claim user interaction has inherent value for the site and for the users. I guess the EULA would be granting you license to use the software, but would not give any additional value to the developer so consideration does seem to invalidate that.
You're probably right that a ToS is going to be hard to uphold in civil court.
Anyway, thank you for elaborating, I'm glad to get a better understanding of your perspective and contract law.
Yeah, they'll probably just toss your counter-offer. But the point is that you can make it. You can take their contract, alter it, sign the altered copy, and send it back, and then they can accept or refuse. The important point here is that you are not considered to have agreed to the original because you signed an altered copy.
A more thorough way to do this electronically would be to modify the DOM, save the modified agreement, click Agree to sign your end, and then e-mail the modified agreement back to the originator and let them know what's going on. Of course, their automated systems have given you access in the meantime, but that's hardly your fault.
I don't really understand how making a modification you know won't be sent back to the server is "fraud", but sending the user an agreement you know won't be read is "not fraud". Seems like either we base both scenarios on what people should do (read the original/modified agreement), or on what people actually do (not read anything), but not base one scenario on one and one scenario on the other.
You say you don't see why an agreement to the original is invalidated because you couldn't make a counter-offer, but that's how contracts work. Negotiation is inherent to the process. Big companies are trying to hide that with form contracts that everyone is expected to sign as-is, but it's still supposed to be present.