More (Illegal) Fun with TOS

In Friday’s Wall Street Journal, Eric Felten writes something that we Contracts Profs know all too well, “Ours is the age of fine print.” He is specifically referring to the terms of use from companies such as Amazon and Apple which he points out can run to “more than 17,000 words of boilerplate.” The length of online contracts is something that I discuss in the book I am currently writing on ‘wrap contracts (or that I should be writing instead of blogging right now). Felten talks about how, back in the day, “we could walk into a record store, pick out a disc and plunk down some cash” whereas now, we have to enter into a contractual relationship before we buy music (something which I’ve blogged about before). The insidious thing about these online contracts, however, is something that has also been mentioned on this blog –they may interact with other laws in unexpected ways. Felten writes, “”under the Justice Department’s expansive reading of the Computer Fraud and Abuse Act, underage Googling, or any other violation of a Terms of Service agreement may well be a crime.” Of course, the good people at the Justice Department scoff at this notion. But despite that scoffing, I think a proper application of contract law and the CFAA would make violations of TOS a violation of the CFAA (and a federal offense). The problem, as Orin Kerr (who is cited in the WSJ article) points out, is that the wording of the CFAA is too broad. But that’s not the only problem – the other problem is that contract law is too lenient with its notions of mutual assent, especially online. If we expect others to take contracts seriously, we should come up with a law of contracts that reflects reality and deserves to be treated seriously.

[Nancy Kim]