Friday, March 9, 2012

Companies Know No One Reads those Legal Agreements. So What?

In the legal world, how can one party agree to something if they literally can't read the agreement? Terms and Conditions imposed by consumer-facing organizations have been controversial for some time, at least in the eyes of some consumer advocates. However, in the light of a recent article on web site privacy policies, can these really be called "agreements"? How can one party agree to something if they literally can't read it?

The article claims that it would take you 76 work days to read all of the privacy policies of the web sites you visit in a year. I won't attest to the accuracy of the math, but the underlying concept is one that I have been thinking about for some time. Just yesterday, iTunes presented me with a 42 page license agreement that I needed to accept in order to enter their store.

What would it take to read and comprehend the nuances of a 42 page contract? Reading something for legal purposes is much more burdensome than reading a novel. I know that in my time in large corporations it would have taken me a week to get a judgement from my legal department on something of that length. Even in the case of a rush job with a trusted negotiating partner, it would take hours.

It would certainly take me hours. And, since I'm not a lawyer I might misunderstand what I am reading. What standard clauses are missing that relinquish crucial rights by their absence? After I finish reading the document, how do I know that the agreement that I am presented with now matches the one I saw hours earlier? Do I read it again? Compare it comma for comma? Can you ever know that the linked policy in effect now is the one you read minutes, or even moments ago?

Multiply that by the number of license agreements, HIPAA disclaimers, privacy policies, and terms and conditions that we are presented with regularly. Once again, I state that there is literally no way that the average consumer (user) can truly read all of the conditions that they must attest to having read and they must 'agree' with.

Of course, web sites can know if their visitors ever read the attendant policies on a transaction. How much time elapses between the delivery of a policy page and its acceptance? How often do consumers follow links to terms and conditions that they have attested that they have read? Are these documents enforceable if standard practice is to present agreements that the presenter knows are virtually never read?

One solution might be an extension of the creative commons approach. This would establish detailed legal definitions of certain summary terms. In the creative commons world, the term "Attribution-Share Alike" has specific meanings, and in use those meanings are fixed through reference to a specific version (e.g. version 3.0) of the license. The expansion would need to allow for more commercial options (not just public domain). Then organizations could 'write' their policies through shorthand phrases, "Liability Limited to Cost". The phrases would be generally informative to lay people, and would be linked to precise definitions.

The magic ingredient is that these terms would have common definitions everywhere you found them. If you reference a term, you incorporate the standard writing with no modifications. A reader can understand the general scope of the license just by reading the summaries. Diligent users can access the detailed definitions just one time, and they will then know what the term means every time they see it. In the future, when they are presented with a license they only need to explore terms that are new to them. Furthermore, since the definitions are standard definitions, and since they are written at arms length from a specific usage, readers can be assured that their are no buried sub-clauses or misplaced commas with malicious (malevolent?) intent.

Without this type of change, are current license agreements really enforceable? If server logs can prove that almost no users read agreements can companies continue to hold up the fiction that users are agreeing to terms and conditions? Couldn't you argue that making an agreement longer than any reasonable user (even one who is a lawyer) would read is almost a tactic to ensure that the agreement will not be read?

I wonder if this will ever be challenged in court?

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