Here is my hottest take, which I should just write for the website I work at: the entire concept of a terms of service agreement should be illegal

Every single tech company operates in a fictional world where people have signed contracts allowing their data to be used and shared and blah blah. But those contracts are bullshit, and we all know it

If you were to describe a contract that

- no one has read

- it doesn’t matter if you read because you can’t bargain over the terms

- can be unilaterally changed at any time

- does not explicitly describe the consideration you provide (data!)



You’d fail your 1L contracts class

Add in the fact that there is so little true competition and zero competition around terms of service (Apple’s iCloud TOS is fundamentally identical to Google’s) and the idea that anyone is making a choice to accept a contract is just terrible public policy

The notion that a clickwrap agreement is a valid contract was not always settled law - the 7th Circuit ruled they were valid in ProCD vs Zeidenberg, a case which every law professor I ever had hated with a white hot passion https://en.m.wikipedia.org/wiki/ProCD,_Inc._v._Zeidenberg …

You can follow @reckless.

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