Surrender with a Button: The Broken World of Terms and Conditions

Donna Trump

Okay, Ryan opens with a confession, so I'm opening with it too. He says he skips right over the terms and conditions popup. He clicks OK just to make the screen go away so he can read his article. And I say good for him for admitting it, because everybody does it. Millions of people. Every day. Click, click, click.

Jesse

What gets me is that he's not lazy. The screen is sitting on top of the thing you came for, like a guy standing in front of a door with a clipboard. You say OK because you want the article. That's not consent. That's surrender with a button on it.

Donna Trump

Surrender with a button! That's it. And Ryan's point is that the whole system is built on that surrender. They count on the click. They count on you being tired. They win on tired, folks, they win on tired every time.

Jesse

He draws a line I thought was smart, too. If you subscribe to something like eBay, a change to the terms can land in your email. Somebody told you. But the guy who just wanders in off the street with no account? Who tells him anything? Ryan keeps coming back to that phrase, acknowledgement of receipt. What does a receipt even mean for a visitor?

Donna Trump

And notice where he's standing. Last time we went through his memo on the back door, companies ending your account at any time without notice. Now he's at the front door, the person who never signed up for anything. Back door, front door. He is covering the whole house.

Jesse

Then he walks right into a trap, and to his credit he spots it himself. Okay, so send people a notice when the terms change. Send it where? An email address. So to read one news story, you hand over your email, so they can tell you about the terms you didn't read. That's a toll booth built to fix a toll booth.

Donna Trump

A toll booth to fix a toll booth. Thank you. And then he gives us the recliner.

Jesse

The recliner is the whole show. You're just researching a chair. Ryan says you walk away, and possibly they've picked up your name, your address, your email, your browser, your IP address, maybe the last ten, twenty, thirty websites you visited. I'll give him his own qualifier, he says possibly, and he says you might not even have known. That's the point. A man went shopping for somewhere comfortable to sit, and he left a file behind.

Donna Trump

You went to look at the chair, and the chair was looking at you. That's a reclining chair with a surveillance package.

Jesse

Here's where it gets interesting, though. The background reading backs him up in one way and kicks him in the shins in another. Courts have had a problem with the passive version, where the terms sit in a footer and the site says just by browsing, you agree. That's called browsewrap. In Nguyen v. Barnes and Noble, the Ninth Circuit in 2014 said consumers cannot be expected to ferret out hyperlinks to terms they have no reason to suspect they'll be bound by.

Donna Trump

Good! The little guy gets a win. But now the click version, the one Ryan actually does. They call it clickwrap. In Forrest v. Verizon, the terms were in a small scroll box, around thirteen pages, hard to read, and the court still said the customer had ample notice. The principle was you had the opportunity to read it, so you're bound, whether you read it or not.

Jesse

So the exact click Ryan makes out of pure fatigue is the click the law likes best. The system rewards the reflex. That's why his question matters. It isn't whether the box got clicked. It's whether anybody was ever really told anything.

Donna Trump

Now the solutions, because Ryan actually brings some, and the first one I love. Make companies list every modification, every edit, every change to their terms. A full revision history, right there on the website. Show your work! You changed the rules, so show us every time you changed the rules.

Jesse

His second one is plain old common sense. Seventy pages is not a contract, it's a hostage situation. He says cut it down to one page. Maybe you agree to the basic terms, not every last sentence of the boilerplate. And he's honest that he doesn't know how you'd pull it off. But the instinct is right.

Donna Trump

And here's the part that made me sit up. Congress has already had a bill like this. The TLDR Act, Terms of Service Labeling, Design and Readability. Bipartisan, from Congresswoman Lori Trahan and Senators Bill Cassidy and Ben Ray Luján. It would have the FTC require a short summary at the top of the terms, including how much effort it takes to read them, like a word count or reading time.

Jesse

And the summary has to name the sensitive information the company handles, and online browsing history is on that list. It also calls for historical versions of the terms and the changes. That's Ryan's changelog, almost word for word. Now, the law firm that wrote it up, Loeb and Loeb, in January 2022, said it remained to be seen whether it would get the votes. So I'm not telling you it's law. I'm telling you a man talking into a recorder landed in the same neighborhood as senators.

Donna Trump

Same neighborhood, and he didn't need a hearing room. And the third idea is about power. Should a website be able to pass your personal information to third parties just because it's written in the terms? Ryan says that comes back to consent. Do you consent or don't you. Separately, for the data. Not bundled in with seventy pages.

Jesse

The privacy guidance points the same direction. Termly says under most data privacy laws, consent has to be an affirmative, explicit action. No pre-ticked boxes, and they say one big Agree button covering the privacy policy, the cookie policy, and the terms together is a legal problem under most of those laws. Separate choices, separate boxes. Ryan was feeling for that door in the dark.

Donna Trump

Meanwhile, the people's answer is, I'll get a VPN.

Jesse

He mentions that. People go that route. And Ryan's not knocking it, but he says it's treating the symptom. Putting a raincoat on because the roof leaks. It might keep you drier. It doesn't fix the roof.

Donna Trump

And the best part is he doesn't pretend. He says it out loud, I'm still at a big question mark. Most people with a microphone never admit that. They arrive with a solution and a mug.

Jesse

That's why I trust it. He asks how you make the terms fair and balanced, and he asks what's been done, what's being done, what's going to be done. Then he hands the question to you. If you've got an idea he hasn't touched, send it in. He says it might give him some guidance.

Donna Trump

So that's the assignment, folks. Think of something good. And the next time a popup shows up while you're just trying to read about soup, or a recliner, take one second before you click OK. Just one. Then click it, because we're all human.