When a website asks if you have "read and understand the terms and conditions," most of us neither read nor understand them but click "I Agree" anyway. There's a new documentary film, "Terms and Conditions May Apply," that addresses the consequences of doing so. If it lives up to its trailer, it should raise awareness that ignoring legalese impacts our privacy and provides the government and corporations with access to our lives in ways few of us could ever imagine.
In digital form, contracts are weightless and cheap to reproduce. Given their low cost and flexible form, businesses engage in "contracting mania" where they use digital contracts also known as "wrap contracts" excessively and in a wide variety of contexts. The result is that consumers are subjected to onerous legalese for nearly every online interaction. It's a fact of modern life that every single person who has ever been online has agreed to the terms of a wrap contract.
Companies take advantage of the digital form of contracts to validate dubious business practices, such as the collection of personal information and the appropriation of user-created content. The marketing industry points to consumer acceptance of wrap contracts to perpetuate the lie that "people don't care about what companies do with their information because otherwise they would have made a fuss about it." They claim that by clicking "I agree," we gave them the right to collect and sell our personal information, track our online movements and wrest control of our creative works.
But we know why we did it. We didn't read the terms. We didn't realize until very recently what information was revealed through online activity or how data could be used and combined in ways that reveal private information about ourselves who we are, what we like, how healthy we are and who our friends are.
Companies know that consumers don't read wrap contracts; they specifically design them so that they are hard to find and even harder to understand. Courts impose a "duty to read" on consumers. The result is that you can be held to have agreed to a contract without even knowing that it exists!
The public reaction to the revelation that the government has been monitoring our online activity has been big news recently and shows that people do care about their privacy online. We realize that the government wouldn't have had access to this information if private companies hadn't been collecting it.
We're also not entirely free from blame. We wanted our content and services "free" without thinking of the long-term costs. We've been playing ostrich, burying our heads in the sand and letting Google and Facebook establish online norms and practices just so long as they didn't charge us.
If only we knew then what we know now.
Then, we clicked "accept" because we were shortsighted. Tracking and data collecting were the price we paid for "free." Ad-based companies grew and pushed out other business models so that services paid for with privacy became the online standard, the absence of privacy is the new normal.
Now, nearly all websites engage in tracking and data collection of one kind or another. Now, it doesn't matter whether we read wrap contracts. All websites use them and their terms are more or less the same.
Now, we click "accept" because we don't have a choice.
A new approach is needed which would more evenly balance the burden of wrap contracts between businesses and consumers. Much of this depends upon the judiciary adopting a more evenhanded approach to what constitutes "reasonableness." A "duty to read" requirement should be offset by a "duty to draft reasonably" on the part of companies. If nobody reads online contracts, shouldn't companies do more to make their contracts more readable?
Consumers can do their part, as well. Some of us have been grumbling, but we are too few and the noise hasn't been loud enough. We should take to those very sites that started us down this path, complain on Facebook about Facebook and tweet about Twitter. We can write our congressperson. Or we can simply opt out and "disagree." Do we dare boycott, even for a day or two? Would our lives fall apart? Or would we realize that those companies need us and our data more than we need them?
But we can't do it alone we need to act together. Facebook can live without any one of us, but it can't survive without most of us. Now is the time to take collective action and pull our heads out of the sand. Because in the topsy-turvy world of wrap contract law, inaction means consent and consent can mean just about anything.
Nancy S. Kim is professor of law at California Western School of Law and author of the new book "Wrap Contracts: Foundations and Ramifications," which will be published this month by Oxford University Press.