ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Tuesday, August 6, 2013

Thoughts on Nancy Kim's Op-ed on Wrap Contracts and Online Privacy

KimA few days ago, my co-blogger Nancy Kim (pictured) posted a link to her op-ed in the Sacramento Bee entitled Why do we sign away our Internet Right to Privacy?  Today, I would like to take her to task for not solving the world's problems within the confines of an op-ed. 

The comments on her op-ed are unusually knowledgeable and interesting as online comments go, so kudos to the readers of the Sacramento Bee, and they anticipate some of my remarks below.

As I told Nancy (and I expect that she will return to weigh in on the subject) I was disappointed with her proposed remedies to the problem of online form contracts which include hidden terms that compromise privacy rights.  In the op-ed, she offers two suggestions: first, that courts should closely scrutinize the terms of contracts of adhesion for reasonableness; and second that we consumers should band together and voice our opposition to form contracts that deprive us of our privacy rights by grumbling about or boycotting (at least for a day) the websites that use such contracts.  Neither of these proposals strikes me as all that promising, and I know from having read Nancy's other writings that she has better ideas.


With respect to courts, Nancy suggests that the "duty to read" that the judiciary currently imposes on consumers ought to be offset by companies' "duty to draft reasonably."  Nancy contends that this would constitute a more evenhanded approach to reasonableness.  I'm sold; consumer advocates are sold; but I just don't see even the vaguest glimmer of hope that courts will move in such a direction.  The Supreme Court's recent arbitration decisions suggest that courts understand reasonableness as anything that promotes the agenda of the chamber of commerce, so long as it falls short of consigning orphans to lives of indentured servitude.  And the trend towards Dickensian understandings of commercial reasonableness is in my view heading in the direction of the 19th century robber barons and away from the world of Judges like Skelley-Wright and Traynor who would actually shape the law with the perspectives of ordinary consumers in mind.

From Grumbling to Boycotts

Nancy sensibly suggests that we consumers should not expect courts to do all the heavy lifting.  Consumers need to step up as well, either by complaining loudly on websites like Facebook and Twitter so that other users will learn about those sites' privacy policies and how much they suck, or by writing to members of Congress or by (heaven forfend!) staying away from the site for a few days in an organized way so that the site gets the message that consumers care about privacy.  To all of this I say, "meh."  I don't think people are sufficiently motivated to organize on these subjects, and I don't think a write-in campaign to either the websites themselves or to politicians will have much effect.  Zev Eigen raises a number of questions in his comment on the Sacramento Bee website.  His comments are a bit cryptic, but I think he is suggesting that people might be willing to sacrifice a shocking amount of privacy in exchange for the ability to "like" their sister-in-law's cousin's picture of her neighbor's newborn.  But Zev, if you are out there, feel free to elaborate.

Better Solutions

I'm not trying to show Nancy up here -- I'm not pretending that I know of solutions to the problem of which she is unaware.  I learned these solutions from Nancy and her ilk (e.g., the Boilerplate crowd and the Seduction by Contract crowd).  So, first, two of the comments on the Sacramento Bee website reference privacy-protective alternatives to mainstream websites.  I literally learned about these things from Nancy and Dan Barnhizer in comments posted on this very blog.  My recently remedied ignorance suggests that Nancy could do a lot of good by foregrounding the message that there are (at least sometimes) alternatives to the old stand-bys (I'm looking at you Google). 

The other solution is to let the invisible hand help us to overcome the group action problem that prevents our grumbling and boycotting from having much force.  I believe there already are websites that help people compare the terms of service of various providers.  How about an online version of something like Consumer Reports that does nothing but compare companies' boilerplate terms.  Are you looking to get a new phone contract?  Terms of Servitude (e.g.) will tell you which companies' terms are most rapacious.  Would you like to connect with your friends and "friends," without revealing to advertizers or others your addiction to websites about the real lives of the people on Jersey Shore?  Keep Out (e.g.) could be a website devoted to comparing the privacy policies of the various competitors in that field.  Such websites could be money-making propositions or they could be wikis -- or both I suppose.  Either way, they would be a far more powerful tool for group action (methinks) than the aggregated grumbling that Nancy advocates.

Perhaps once I get her book, Wrap Contracts (OUP 2013), I will see that she has quite a bit to say on this topic.


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Kudos to both of you for revivifying the question of enforceability of outrageous terms in consumer adhesion contracts. I have two reactions. First, as to the possibility of consumer collective action, perhaps this kind of issue could provide a focus for the Occupy movement -- a form of protest that will not get them pepper-sprayed. My own 20 something kids -- yes I know, not a representative sample -- are becoming much more aware that they were conned by "Do No Evil" slogans and the like. Neither Google nor Apple is cool anymore. So, I'm not as skeptical as Jeremy is about the potential for collective action by some portion of the networked young that could jeopardize a company's reputation.

As to why few judges will help, we law teachers bear some responsibility for that. For the 30 years that I've been in the academy, I have observed numerous contracts case books and too many colleagues revel in the fact that the Gateway - ProCD - Concepcion, etc., cases made offer & acceptance doctrine seem relevant again. In our teaching, we helped ratify a legal fiction about consumer choice and helped make it seem cleverly consistent with old precedent. We are not responsible for the judges who are committed market ideologues but we may be responsible for misleading the larger group whose legal educations disabled them from distinguishing fact from fiction.

Posted by: Kate O'Neill | Aug 7, 2013 7:19:00 AM

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