ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Monday, December 22, 2014

Gift or Curse?

After years of conducting research on the genes of various animals, George Doe (a pseudonym), an accomplished biologist with a PhD in cellular and molecular biology, decides to have his own genes examined for fun and to discover whether he may be genetically predisposed to cancer.  He buys a test kit online from one the many companies that provide such services these days.  He is so excited about the process that he also buys a kit for his mother and father as gifts.  They all have their genes tested.  George finds out that he is not predisposed to cancer.  But that’s not it.  He also finds out that another male who has had his own genes tested and is thus registered with the same company is “50% related” to George.  This can only mean one of three things: this other male is George’s grandfather, uncle or … half brother.  After intense and testy family discussions, George’s father apparently admits that he had fathered this other male before marrying George's mother.  George’s parents are now divorced and the entire family torn apart with no one talking to each other.

A very sad affair.  Of course, nothing appears to be contractually wrong with this case: at the bottom of one’s profile with www.23andme.com, the company that provided the tests in this case, George and his family had checked a small box indicating for them to do so “if you want to see close family members in this search program.”  The company is said to have close to one million people in its database.  With modern science, close family members can easily be identified out of such data if opting into being notified. 

Here, the company does not appear to have done anything wrong legally.  Quite the  opposite: if anything, the above shows that the buyers in these situations may not be sufficiently mentally prepared for the information they may discover through DNA testing.  Arguably, they should be.  After all, the old adage “watch out what you ask for, you may get it” still rings true.

But isn’t this situation akin to the various other situations we have blogged a lot about here this past year where customers buy various items online and click – or not – on various buttons, thus signaling at least alleged acceptance of, for example, terms of service requiring arbitration instead of lawsuits in case of disputes?  As I have argued, many people probably just clicks such buttons without fully realizing what the legal or, in cases such as the above, factual results may be.  Should online vendors be required either legally to make such check boxes or other online indicia of acceptance a lot more obvious?  Or should they at least be required to do so for reasons of business ethics? 

I think so.  Most working people are exceptionally busy these days.  Frankly, not many of us take the time to scrutinize the various implications - legal or otherwise – of the purchases we make online, especially because the agreements we accept in cyberspace are presented so very differently online, yet are so deceptively similar in legal nature that we probably feel pretty comfortable with simply clicking “I accept” as the vast majority of such transactions present no or only minor problems for us? And aren’t the vendors the party with the very best knowledge of some, if not most, of the problems that arise in these contexts?  How hard would it really be for them to make sure that they use all the “bells and whistles” to truly put people on notice of what typical problems encountered may be, exactly to avoid legal problems down the road?  One would think so, although, of course, customers also carry some of the burden of educating ourselves about what we buy and what that may mean.  This is perhaps especially so when such delicate issues as the above are involved.

For George Doe, the above unfortunately turned out to be much more of a curse that kept on giving instead of a gift that kept on giving.

On behalf of your blogging team here at ContractsProfs Blog: Happy Holidays!

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