There are so many advantages to turning off and disconnecting these days. Avoiding TOS is just a small part.
There are too many demands on our attention and our wallets and most of us aren't getting more money or time. I cancelled all the family's streaming services in 2025. Everyone adapted. It turns out a lot of things we are told we need, we really don't. People lived without them as recently as a few years ago. A lot of the novelty of mobile, streaming, social media and weird tech nobody needs has worn off and the value has been eroded. There are so many better things to do and experience and you don't need to hand over your privacy or sign your soul away.
everdrive 9 minutes ago [-]
Every single ToS is written to benefit the company, and when necessary, harm the consumer. The answer is to enter into as few service contracts as possible. Use open source software. Control when your software updates. Really, never use the cloud version of anything whatsoever except where unavoidable. (eg: email and such)
They feel like the legal equivalent of Calvin Ball. So long as you just stash it in a ToS, you can apply any stupid rule your lawyers can imagine.
juleiie 15 minutes ago [-]
I don’t live in US or five eyes so I pirate all the stuff basically Scot free.
I understand that it’s not so easy for Americans whose internet activity is constantly scrutinized. I’ve had the privilege of choosing exactly who and what I pay.
I usually don’t subscribe to any streaming service, but when I do choose to pay for something, my money goes to smaller entities that I don’t actively want to see fail.
In my book, none of the Hollywood deserves a single cent. It’s an amazing feeling to be in the power to dictate this.
dfc 4 minutes ago [-]
If you think Hollywood content is worthless why bother pirating it at all? It seems like you would just not consume it.
05 13 minutes ago [-]
Surely even the poorest of Americans can pay a couple bux a month for a seedbox?
datsci_est_2015 3 minutes ago [-]
This ruling taken in conjunction with “in the future you will own nothing, and you will be happy” paints quite the dystopian picture where not even “turning off and disconnecting” will save you.
Forgeties79 19 minutes ago [-]
I canceled all of our subscriptions about two years ago and set up a Plex server. I don’t love the direction Plex is going in so I’m teeing up to flip to Jellyfin, but still, it has been so much better than dealing with all of these companies and nonsense.
I feel like we can’t even call it “advertising“ anymore. It’s such a misnomer. It’s basically data fracking and psychological warfare to make us all into little addicts. This whole industry built around chasing “the attention economy” is a social blight.
Havoc 2 hours ago [-]
Reminds me of the Sony bash.org joke
> <DmncAtrny> I will write on a huge cement block "BY ACCEPTING THIS BRICK THROUGH YOUR WINDOW, YOU ACCEPT IT AS IS AND AGREE TO MY DISCLAIMER OF ALL WARRANTIES, EXPRESS OR IMPLIED, AS WELL AS DISCLAIMERS OF ALL LIABILITY, DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL, THAT MAY ARISE FROM THE INSTALLATION OF THIS BRICK INTO YOUR BUILDING."
<DmncAtrny> And then hurl it through the window of a Sony officer
<DmncAtrny> and run like hell
iugtmkbdfil834 50 minutes ago [-]
Naturally, for this to work, one would need to incorporate first so that claim of free speech to be taken at face value.
danlitt 4 hours ago [-]
The entire notion of being allowed to enforce arbitrary terms of service is absurd. There are probably a handful of terms everyone agrees are reasonable (no attempted hacking, rate limits, do not break laws) and everything else should be unenforceable. Especially garbage like what you're allowed to do with the stuff you get from the service even while not using the service, or about setting up competing products. It's like McDonald's selling you a burger and telling you how to eat it.
misnome 1 hours ago [-]
> It's like McDonald's selling you a burger and telling you how to eat it.
"Disney dropped its bid to force arbitration over the streaming service’s clause in August 2024, following a barrage of public backlash."
And not because it was a clearly outrageous thing to do.
klempner 4 minutes ago [-]
Except it is a stretch to say it is "their theme park restaurant". This story was dramatically oversimplified in the media and Disney's position was nowhere near as unreasonable as everyone understands it to be.
The argument was not "they agreed to a EULA 5 years ago and therefore mandatory arbitration in all disputes with Disney".
This is a privately owned restaurant at a glorified shopping mall within the larger Walt Disney World resort. If you went to a normal restaurant in a normal shopping mall in Florida the mall owners would generally not be liable unless there's something else going on.
The theory that Disney is liable here is more than anything based on the *restaurant featuring on their app.* The EULA for *that app* would certainly be relevant to this argument.
Now, the Disney lawyers also tried to argue that the Disney+ EULA would actually (at least plausibly) be relevant. That is more than a bit of a stretch, especially for a free trial from years ago, and I'd be surprised (but IANAL) if such a theory would actually hold up in court. Still, on a spectrum from "person died due to maintenance failure on a Magic Kingdom ride" to "person died from going to a restaurant featured on a Disney+ program", if you're arguing that the Disney+ EULA is relevant, this is a whole lot closer to the latter than the former.
jdiff 1 hours ago [-]
It gets worse with added context: signed up for a free trial of Disney+ on a PS5 many years ago.
SkyBelow 56 minutes ago [-]
It gets worse x2: the executor of the estate having signed up for Disney+ means the estate of the deceased loses the right to sue, despite the deceased having never signed up. Like a client being bound by all unrelated legal agreements their lawyer entered into.
(If I recall the details correct, it has been a while since I read into that case.)
silvestrov 3 hours ago [-]
> It's like McDonald's selling you a burger and telling you how to eat it.
and you are not allowed to criticize it or write about the size of it or how much meat there is in it or how filling it is to eat the burger.
and you are definitely not allowed to compare it to burgers from other companies.
sysguest 3 hours ago [-]
and you're not allowed to open a restaurant (same food industry == competition) if you have even took one bite of the burger
miohtama 1 hours ago [-]
Not allowing to criticize is practically a law in some European countries
A system being abused by mass-false-reports =/= "practically a law".
LunaSea 1 hours ago [-]
And the US with Oracle famously making it illegal to benchmark the performance of their database.
doubled112 19 minutes ago [-]
Didn't Atlassian have a clause in their TOS where you weren't allowed to discuss the performance of their cloud?
reactordev 1 hours ago [-]
Because never before have we seen inverse power laws applied to table queries we were told would be faster than Postgres. They lied.
tclancy 2 hours ago [-]
Please do not inquire about the location of the beef.
bentcorner 10 minutes ago [-]
Unfortunately the only way this changes is if a company writes a just enough unreasonable ToS, and someone violates it in just the right way and the company decides to enforce said ToS, and the user fights back, and this all ends in court.
I'd be surprised if all those stars align anytime soon.
jahnu 4 hours ago [-]
Not to mention the unreasonable length and complexity of these things. I’ve seen shorter contracts for mergers and acquisitions.
RicoElectrico 4 hours ago [-]
The pro tip is pasting such long ToS into NotebookLM and asking it to list e.g. top 5 surprising clauses (if you ask just about surprising clauses it treats you like an idiot and lists everything)
oneeyedpigeon 2 hours ago [-]
But that gives you absolutely no legal advantage whatsoever, so you might as well save your time and not do it.
halJordan 27 minutes ago [-]
You're suffering from the unfortunate fallacy of "this has no immediate concrete value to my particular concern, so it is altogether worthless"
scotty79 3 hours ago [-]
> lists everything
To be fair existence of TOS is suspiring.
gloosx 41 minutes ago [-]
Actually it's like McDonalds removing pickles from the big mac after it was already served to your table
netcan 3 hours ago [-]
>It's like McDonald's selling you a burger and telling you how to eat it.
And the way the resteraunt this right is by covering their walls with TOS text like an Egyptian tomb.
stinkbeetle 3 hours ago [-]
> The entire notion of being allowed to enforce arbitrary terms of service is absurd. There are probably a handful of terms everyone agrees are reasonable (no attempted hacking, rate limits, do not break laws) and everything else should be unenforceable.
Why? Why should a government prohibit private parties from agreeing to anything other than those 3 things?
> Especially garbage like what you're allowed to do with the stuff you get from the service even while not using the service, or about setting up competing products. It's like McDonald's selling you a burger and telling you how to eat it.
It is vaguely like that, but but I'm not sure the analogy facilitates understanding of this subject. McDonalds shouldn't tell you how you can eat your burger, therefore... companies must not enforce any terms on their services aside from those things. Why?
I'm not saying any term should be enforceable. Contract law has a long history against that. I just wonder how and where you draw the line and what existing law is insufficient.
ahartmetz 48 minutes ago [-]
This is one of these cases like gun crime where:
USA: There is no solution!
Rest of world: slightly embarrassed look
There are legal terms and concepts like good faith, expected and unexpected terms, reasonable expectations, abuse of a legally unsophisticated party and so on. In other countries, neither the fiction that everyone reads or is expected to read the 10-page "dining contract" of a restaurant exists nor is it allowed (enforceable) to put any unrelated or unreasonable crap in there.
peter_griffin 3 hours ago [-]
>Why should a government prohibit private parties from agreeing to anything other than those 3 things?
because ToS have been long used to demand unreasonable things and threaten people with expensive lawsuits. The advantage of companies losing bullying power significantly outweighs the disadvantage of less business freedom
ToS are normally "contracts" (hard to even call them that) between a large corporation with very high resources for a lawsuit and an individual with very low resources. The power imbalance makes challenging ToS for the individual unfeasible in 99% of cases
stinkbeetle 2 hours ago [-]
> because ToS have been long used to demand unreasonable things and threaten people with expensive lawsuits. The advantage of companies losing bullying power significantly outweighs the disadvantage of less business freedom
Why those in particular though? The criminal law one sure that's a part of contract law already. Why the others? Why not different ones? It was just asserted that those were reasonable and no other terms are.
alpinisme 52 minutes ago [-]
The original comment asserted that there are “probably” a finite list of reasonable things everyone could agree on. The examples were parenthetical and surely not meant to be the last word.
The point they were making (rightly or wrongly) seems to be that contract law just isn’t the right way of managing consumer-business relationships. I suspect that actually meshes with the intuitions of a broad swath of the population, who want a reliable, predictable, consistent, and consumer-beneficial set of norms and laws around all consumption so that it is easy to manage and understand when you are departing from the norm and to be able to confidently conduct a public life knowing that your purchases are not subjecting you to any surprising gotchas other than having lost the money and having acquired a product.
You could take this line of thought charitably in another direction to assert that “unusual” agreements are presumed unenforceable but not that there are no legal mechanisms for adding additional clauses.
fauigerzigerk 5 minutes ago [-]
Perhaps there should be a limited set of standard clauses that companies can pick from and that consumers can read and compare like food labels.
amiga386 2 hours ago [-]
> Why should a government prohibit private parties from agreeing to anything other than those 3 things?
Because a severe power imbalance allows for abuse, and governments should prohibit such abuse.
In particular, one private party has an expensive and highly educated legal team and a lot of time. The other party wanted to eat a burger and didn't have a week to do a thorough legal review of the TOS to check if they were potentially selling any kidneys for a dollar.
RobotToaster 2 hours ago [-]
"Inequality of bargaining power is generally thought to undermine the freedom of contract, resulting in a disproportionate level of freedom between parties, and it represents a place at which markets fail. "
I know discussing HN behavior is off topic, but parent's comment is a perfect example of something unpopular that adds to conversation.
We shouldn't use votes to squelch opinions we don't hold. We should use them to improve the discourse.
danlitt 2 hours ago [-]
> Why should a government prohibit private parties from agreeing to anything other than those 3 things?
> I'm not saying any term should be enforceable. Contract law has a long history against that. I just wonder how and where you draw the line and what existing law is insufficient.
This is not a magic list of 3 things that I think is complete.
I think there is a compromise between allowing companies to add arbitrary terms, including some which are enforceable but (by my feeling) unreasonable, and excluding unreasonable terms completely with a blanket ban, which no doubt would result in some companies being unable to add reasonable terms that are not in the list.
I think if we picked the 3 terms I outlined in my comment, the result would be a more pleasant situation than the one we have.
You could just say I disagree about what is an enforceable term. The point of the analogy is to show how ridiculous I find the current judicial reasoning, which is something along the lines of "if you don't like the term, you don't have to use the service, so it doesn't really matter how restrictive the terms are". I really think this is how particularly US judges think about this sort of thing, and I think it does a lot of harm to society. People find it obviously unreasonable for McDonalds to say how you can eat your burger, or for a book store to say what you can do with the information in your book, but when a service tells you how you can use the data you get from them, it's fair game. It's ethically inconsistent.
alistairSH 1 hours ago [-]
Why? Because ToS as they exist today are unreasonably long and not understandable by the average person. Yet nearly everything we buy today comes with a complex ToS.
Added to that is the forced arbitration clauses they exist in most ToS. See the example about Disney getting out of a wrongful death suit at a theme park beciaee the plaintiff had a free Disney account for a PS5 that he bought many years earlier.
Tl;dr - buying a piece of software or home appliance shouldn’t come with more strings attached than buying a piece of real estate.
short_sells_poo 3 hours ago [-]
Because the power is disproportionally concentrated with one party - the service provider. The users of the service are numerous, comparatively small and uncoordinated.
In a situation like that, users have no means of resisting egregious terms, and no you cannot pull up stuff like "if you don't like it, don't buy it". As I wrote, the users are uncoordinated, and would take a huge effort to coordinate. Boycotting services rarely works (if ever). So what we end up with is that legal teams employed by firms optimize to shove as much bullshit into ToS as they can, the users grind their teeth and bear the bullshit, and get shittier service. Nobody really wins, because I'd argue the marginal gain for the company is minimal at best from this.
The government is not there just to enforce laws, but also to legislate such that the scales are balanced. Otherwise we may as well live in a dictatorship.
stinkbeetle 2 hours ago [-]
But some terms were claimed to be reasonable. If power being disproportionate is sufficient to void terms, why not those terms too?
> The government is not there just to enforce laws, but also to legislate such that the scales are balanced. Otherwise we may as well live in a dictatorship.
Should the state just prohibit all agreements between two parties unless the state's adjudicator decides they are exactly equal in "power" and permits it? Sounds horrific, like a dictatorship. The government is not my guardian and does not do my thinking for me. I get that many people are subservient and would much prefer that, but that's no good either. There's an enormous middle ground between anarchy and "the state intervenes to allegedly 'balance the scales' in every aspect of peoples' private lives".
danlitt 2 hours ago [-]
> If power being disproportionate is sufficient to void terms, why not those terms too?
Power being disproportionate is obviously not sufficient to void terms - that's not what the comment you're replying to said. It is necessary to void terms when there is a power imbalance.
> Should the state just prohibit all agreements between two parties unless the state's adjudicator decides they are exactly equal in "power" and permits it?
This is obviously ridiculous and makes me think you are not arguing in good faith. Terms have to justify their existence according to logical principles that we argue about. It does not follow that there has to be a "state's adjudicator"! I am just describing how democracies come up with laws - it is not some fantasy Orwellian nightmare.
> I get that many people are subservient and would much prefer that
Ironic comment!
stinkbeetle 1 hours ago [-]
> Power being disproportionate is obviously not sufficient to void terms - that's not what the comment you're replying to said. It is necessary to void terms when there is a power imbalance.
What are you trying to say here? I didn't claim the previous poster didn't think it was necessary, I was just commenting on the sufficiency part of the claim -- sufficient being a subset of necessary.
> This is obviously ridiculous and makes me think you are not arguing in good faith.
What is ridiculous is that you're pretending not to recognize a reductio ad absurdum, particularly in the context of a reply that included McDonalds dictating how you eat a hamburger! Makes me think you are not arguing in good faith, I may be forced to report you to an adjudicator to rule on how we are permitted to debate.
> Terms have to justify their existence according to logical principles that we argue about.
And that's exactly what I'm asking about. OP made a claim about what terms were "justified" and I'm trying to find out the basis for them.
> Ironic comment!
It isn't, you're just unable to address it.
ahartmetz 38 minutes ago [-]
> Should the state just prohibit all agreements between two parties unless the state's adjudicator decides they are exactly equal in "power" and permits it?
It's pretty simple. You can write whatever you want into a contract, but if you want to enforce an unreasonable term, you will lose in court and might be forced to remove the term from current and future contracts. That's how it works everywhere. The difference between legislations is just what is considered a reasonable term.
short_sells_poo 2 hours ago [-]
> Should the state just prohibit all agreements between two parties unless the state's adjudicator decides they are exactly equal in "power" and permits it.
This is a strawman and you know it. Please at least make an attempt to argue in good faith, otherwise there's no point.
Of course there should be a reasonable middle-ground. The current situation with completely bogus ToS is not it.
Let me turn it around: should the state just abandon it's duty of creating an fair and equal playing field between large corporations and clients and let society devolve into a corporatocracy where laws are enforced purely to further corporate interests? Because that's exactly what you seem to be suggesting.
See? Not particularly conductive to discourse, is it :D
stinkbeetle 1 hours ago [-]
> This is a strawman and you know it.
Uh yes? And you clearly know it too. It was a bit like your McDonalds strawman.
> Please at least make an attempt to argue in good faith, otherwise there's no point.
No need to get in a huff when we obviously both know what we're talking about. It's not conducive to the discussion.
> Of course there should be a reasonable middle-ground. The current situation with completely bogus ToS is not it.
I don't know exactly what the current situation with completely bogus ToS is, I'm willing to accept it could be adjusted. I was asking specifically about your proposed adjustment to it though. Your reasons for the new framework you suggested.
> Let me turn it around: should the state just abandon it's duty of creating an fair and equal playing field between large corporations and clients and let society devolve into a corporatocracy where laws are enforced purely to further corporate interests? Because that's exactly what you seem to be suggesting.
That isn't what I was suggesting. I was asking you how you came to your conclusion in the previous post. (EDIT: Sorry you did not conclude that, the grandparent did the parent of my first post you replied to, but you posted seemingly in support)
bradley13 6 hours ago [-]
IMHO the problem is allowing changes to terms and conditions for existing contracts. If I have a contract with a company, that contract was made under existing T&C. The company should not be able to change those conditions without my explicit permission. Denying me service if I disagree should not be a valid option.
I get this periodically on our overly-computerized car: Here are new T&C, click yes to agree. You can make the screen go away temporarily, but there is no options to say "no, I disagree".
impossiblefork 4 hours ago [-]
Here in Sweden the thing that makes something a contract is that you can't change it-- that it has definite provisions that have been agreed and that both parties actually expect the other to hold up their part.
The US breaking its contract law to treat non-contracts as contracts is one of the most insane things I've seen a legal system do to itself.
The key difference, is that the US is many jurisdictions (Federal + 50 states + a lot of others, from counties to cities to territories to MANY others), and the variance amongst those is high.
The key thing well regulated places like Sweden get right, is that in consumer contracts you have minimum bars that you must meet regardless of what you can get the consumer to agree to. So, for instance, return policies, for goods bought online have minimum standards they must meet.
In the US, these things have huge variability. There are well regulated states, and well, the others.
impossiblefork 3 hours ago [-]
>The key thing well regulated places like Sweden get right, is that in consumer contracts you have minimum bars that you must meet regardless of what you can get the consumer to agree to. So, for instance, return policies, for goods bought online have minimum standards they must meet.
Yes, but Swedish contract law actually is like this. A contract is a specific agreement, it can never be "Oh well, you can add provisions as you like if you send them to me" or "I will pay whatever".
close04 2 hours ago [-]
The workaround is that each change is a new contract. If you don’t accept the changes the existing contract ends and that’s it. But the power is mostly with the provider, you need it more than it needs you, so you will want the new contract. You can also ask and negotiate terms and the provider has the same choice. If there’s healthy competition you have some power, otherwise you are out of luck.
repelsteeltje 2 hours ago [-]
But that would supposed need to have some explicit text stating the expiration of that contract. An existing contract can't just end when provider feels like it, I suppose?
jtbayly 1 hours ago [-]
I would guess it can end the moment either party wants, unless a length was established. At the end of the month or year you’ve paid for, perhaps with a minimum notice, would make sense. Otherwise the provider can refuse to let you stop paying, citing the contract.
impossiblefork 1 hours ago [-]
Yes, you have to enter into a new contract with the person you want a new contract with and he has to actually agree, as in any contract negotiation.
junon 1 hours ago [-]
Which is still loads preferable to what's happening in TFA.
victorbjorklund 3 hours ago [-]
This is not true. It is 100% possible to write a contract in Sweden where one of the paragraphs says that you can change it in this and that way. And if we're talking about business to business contracts, it will probably in almost all cases be enforceable, even if you're writing that one party can just announce changes. In fact, I think most business to business contracts have some kind of clause specifying that it is possible to raise prices or change certain things.
impossiblefork 3 hours ago [-]
That absolutely isn't true. You can enter into agreements about how to form a contract, but a contract is definite, completely specific, with no changing provisions. That's what makes it a contract.
If you have an agreement that says one party can announce changes, you don't have a contract, because those changes were not agreed to.
shevy-java 3 hours ago [-]
I am not sure that is correct. At the least it sounds to be a violation of EU laws if this were possible in Sweden; but, even aside from it, I do not think a contract can be changed willy-nilly without offering termination of the service in due time.
lesuorac 3 hours ago [-]
Presumable in Sweeden you can agree to new contract that supercedes the current one? That's all that's (argueable) happening here.
To me the insane part is that contracts don't have to be registered with the courts (or some qualified third party) ahead of time.
Like each party could show up with their own piece of paper (or not be able to provide it). Which is largely the issue here in that one party is showing up with a 2021 document and the other a 2023 document.
impossiblefork 3 hours ago [-]
>Presumable in Sweeden you can agree to new contract that supercedes the current one? That's all that's (argueable) happening here.
Yes, of course.
We don't have any rules about contracts needing to be written down or registered or anything of that sort. Even verbal agreement are valid, and you are entering into simple contracts even when you buy something in a store.
kace91 3 hours ago [-]
There is a strange phenomena where introducing tech makes people suddenly blind or numb to established rules.
Can you imagine buying a car in the seventies and a month later finding a technician under your parked car making adjustments to it? You’d kick them out and call the police. But put an internet connection in between and it’s ok.
Same goes for wiretapping (compare Nixon vs current state), unlicensed hotels and cabs being ok when booked by an app, and so on.
carefree-bob 3 hours ago [-]
The other side of this is that companies do want to change their T&C from time to time, so what do they do, force you to quit and then sign up again? That adds a lot of friction. Or do they tag things and say "Customer X signed up on this date, so he is bound by T&C number 12, whereas this other customer signed up a year later and is bound by T&C number 13". That seems unwieldy since there is a common infrastructure.
I get emails from time to time that "Policy X has changed and will take a effect in X weeks" so at least I'm given advance notice, and am basically OK with that approach as long as the changes are spelled out clearly and not hidden in hundreds of pages of legalese. Maybe an LLM would help here, and translate what the new changes in terms really means so I can decide whether to continue with the service or not. In general I'm OK as long as I'm given enough notice and it's clear what is happening.
The same thing happens with pricing. What does a company do when they want to increase rates, or change their products? They send out a notification that starting on a certain date, the prices will go up. I don't think anyone objects to that. How is a T&C change different?
sethaurus 1 minutes ago [-]
> Or do they tag things and say "Customer X signed up on this date, so he is bound by T&C number 12, whereas this other customer signed up a year later and is bound by T&C number 13". That seems unwieldy since there is a common infrastructure.
If the company would like their T&C to carry the force of a binding contract upon me, then yes, keeping track of what I actually signed seems like the absolute bare minimum they must do.
Either these things are real contracts or they are not. The idea that it's too onerous for a company to keep track of their contractual agreements is absurd.
Lyrex 3 hours ago [-]
I work for a digital bank and the versioning is essentially exactly how we handle T&Cs.
The user accepts a certain version of some terms, and if we launch for example a new product that requires changed T&Cs then we ask the user to accept them if they want to use the new product.
If they don't, well, then they just keep using the existing offering without accepting any new terms.
getly_store 6 minutes ago [-]
Versioned terms help when changes apply to a product, not the whole platform. For a new product with different rules, require explicit, time-stamped consent before first use; otherwise grandfather users on existing terms. Provide a changelog, a grace period, and an easy opt-out. At Getly, per-product terms and payout rules kept separate can reduce friction.
alistairSH 56 minutes ago [-]
That’s sounds reasonable for services-based consumer offerings. Which would include consumer SaaS services.
Where it gets a little
muddy for me is hardware with services attached (a new EV, etc)… you pay $60k for a car, it really shouldn’t be possible to force a new ToS on something they has physical ownership. And definitely not possible to brick or de-option the car due to refusal to accept new ToS.
bux93 2 hours ago [-]
Telcos and insurers (especially life, pensions) too. Not rocket science.
tsimionescu 2 hours ago [-]
> What does a company do when they want to increase rates, or change their products? They send out a notification that starting on a certain date, the prices will go up. I don't think anyone objects to that.
Of course you do. I have a fixed contract with my mobile carrier - if they want to change rates, tough luck. Once the current contract expires, they can indeed notify me that the new contract will auto-renew with a new rate, and I can either accept it or choose a new carrier. But they very much can't change prices, or alter services rendered, while the current contract is in force.
behehebd 50 minutes ago [-]
No it is absolutely fine. I pay my lawyer 100k/y to read through all my TCs for my 2k/y subscription spend. Makes sense.
This all just needs statutory laws and eliminate TCs for basic services. It is a scam.
Rental contract sure. Employment contract yeah.
I bet a single set of statutory rights for consumer and provider could cover most things.
B2B is different.
lstodd 2 hours ago [-]
I'm still on a contract from 2016 or so with my mobile (cell) operator. 10 years of inflation, I pay basically nothing for some occassional data use and more voice than I could ever use.
Of course it irks them much to not be able to sell me less for more. But they can't do anything short of disconnecting me and that is unspeakable for a mobile operator.
I like this very much.
dinowars 23 minutes ago [-]
I used to have a good deal for years at Orange. They tried to get me on a new contract (slightly expensive) for a while, but at some point they just decommissioned the old program, basically they cancelled the old contracts and migrated everyone to the new plan. It was a minor change to me so went with it, then later they started to hike prices on the new plan, eventually I cancelled and left them after about 20 years.
ipython 34 minutes ago [-]
You can probably do even better with a prepaid mvno at this point
xhcuvuvyc 2 hours ago [-]
I got one of these on my tv. I returned it.
close04 5 hours ago [-]
But the “initial” T&C allows them to cancel your contract unless there’s a minimum contractual period. They can take that opportunity to force you into a deal change. The change is that now just using the service is considered consent.
The real problem is that the law allows this power imbalance and doesn’t tip the scales to even it out for the end user. That for me is evidence that the law is made for the companies (probably by the companies too).
I have the same in the car. Been postponing for 2 years now.
I wonder if this can be weaponized by users too (probably no legal basis for this), just send them a new T&C again and again and say delivering the service is consent. Force the companies to say the quiet part out loud: users are not allowed to have the same liberties as the company.
Frieren 5 hours ago [-]
> That for me is evidence that the law is made for the companies (probably by the companies too).
Yes, everything is becoming more and more convenient for big corporations while individual citizens need to navigate an ever increasingly complex world. Laws are designed to protect capital not individual citizens nor society. That never ends well.
gopher_space 55 minutes ago [-]
Strike out the parts that you don’t like and email it to legal@ Include a cute little JavaScript cat animation to brighten their day.
Barbing 5 hours ago [-]
>just send them a new T&C every day and say delivering the service is consent.
That’s domestic terrorism (charges)
user3939382 3 hours ago [-]
My Apple TV started doing this. New Terms, agree or “not now”. Ok how about never?
handoflixue 6 hours ago [-]
If you decline the new contract, you're entirely welcome to continue on the old T&C.
Worth noting, the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke.
Also worth noting, the old T&C you agreed to probably included a clause about these sorts of updates, too.
So, right there, you've already explicitly agreed to a contract that can be terminated if you don't accept updates.
> The company should not be able to change those conditions without my explicit permission.
The legal argument is that (a) you were explicitly notified of these changes, (b) your rights to use the service under the previous contract have been revoked, and (c) you're continuing to use the service.
So, either you're stealing their service, or you did in fact explicitly agree to the new contract - "“Parties traditionally manifest assent by written or
spoken word, but they can also do so through conduct.” Berman, 30 F.4th at 855."
qnleigh 5 hours ago [-]
> If you decline the new contract, you're entirely welcome to continue on the old T&C.
I think the point of contention here is that in practice, there is no way to continue on the old terms of service/contract. Suppose you're using a note taking app, and one day they update their terms of service to say that they can use your notes to train their AI. "Continued use implies consent," so you are locked into the new terms of service unless you stop using the app right then and there. You are not afforded the opportunity to decline the new terms of service and continue on the old ones.
shakna 5 hours ago [-]
Clauses existing, have very little to do with it being enforceable.
Vader might say he can change the deal at any point, but consumer law generally requires that what is purchased reflects what is advertised.
If you don't agree to a new set of terms, because the service is changed from what you purchased, then both parties generally should still be party to the previous.
Notification alone, is not enough. Agreement is required.
5 hours ago [-]
nomercy400 2 hours ago [-]
Can I do the reverse now as well? Email a company a unilateral change in the TOS? Or do TOS's have provisions against that as well?
"I do not agree with your new TOS and will continue under your old TOS, and I will continue to use your service". And see when they will close your account down.
mycall 39 minutes ago [-]
Now if most of their customers did that, they wouldn't close down all the accounts. Forgotten power of the people.
Noaidi 2 hours ago [-]
IMO, this would make a great court case.
PetriCasserole 1 hours ago [-]
I know I'd be listening intently if I were on the jury. I'm a "sauce good for the goose is good for the gander" kind of guy.
bell-cot 43 minutes ago [-]
> ... if I were on the jury. ...
Too bad that v1.0 of the ToS their victims "sign" forced all disputes into their lap-dog arbitration system.
nickorlow 19 minutes ago [-]
My new ToS I sent them allows me to appoint anyone (including my self) as the arbiter.
cogman10 1 hours ago [-]
It's a bad ruling. By it's logic, McDonald's can mail me a contact where they take my car if I eat at their restaurant and all disputes go to their arbitration court, and I agree to the terms by ordering food from them.
It's really no different. In fact, in some ways it's worse because McDonald's can send the contact via certified mail.
These courts just want to clear their dockets which is why they reversed.
jmward01 6 hours ago [-]
Hm. It seems that use actually goes two ways. They continue to use my information even when I leave their platform. Does this mean I can email info@google.com updated TOS, since I am a party to it I guess, and if they keep selling my info they accept it?
internet_points 4 hours ago [-]
No, because of the legal principle of habeas pecuniam (you can't afford as many lawyers as Google)
kubb 5 hours ago [-]
No, you don’t have the means obtain a similar ruling from the court.
exmadscientist 6 hours ago [-]
For those not familiar with US appeals courts, this is an unpublished order, which means that it's (broadly speaking; there are subtleties) not precedent and applies to this case alone.
lesuorac 3 hours ago [-]
Isn't the fact that it applies to _any_ case precedent?
Like if you're a lawyer and you read this do you go "My client will never win a case like this?" or do you go "we should go to trial"?
Sure you won't get summary judgement but if the courts rule this way once they can rule this way again.
patentatt 7 minutes ago [-]
Only if it’s in this district, it has almost no weight in another district. And being unpublished makes it a flimsy argument even in this district.
nickorlow 17 minutes ago [-]
A case like this is still theoretically winnable, different courts have different opinions, and higher level courts have yet to weigh in
JR1427 1 hours ago [-]
The current state of terms and conditions is a clear failure of modern law.
No one is reading them, and it would be practically impossible to do so. Signing something you cannot practically read and understand clearly does not mean you actually accept them.
How can we wake people up to this absurdity? The law should exist to help society. When it is not helping, reform it.
tkel 56 minutes ago [-]
What gets enshrined into law is a function of what powerful people in the society want enshrined. And these companies, their executives, and their beneficiaries are infinitely more powerful than individual users. In many ways the legal system is a compromise that companies tacitly agree to in order for legal/police protection in exchange for not hiring mercenaries and rebelling, as they do in some countries. The legal system has to serve their interests, or else powerful people would revolt. When they do revolt either violently or nonviolently, the laws shift and a new compromise is achieved. Or they just choose not to follow the laws and the state doesn't call them on their bluff, or if they do, it is only an entry-point to negotiation. Thus the current state of laws are a continuum of compromises between power players.
p0w3n3d 6 hours ago [-]
The TOS are changing from 1st of June as below:
- are your belongings are now ours
- please move out of your->our house
- you cannot use the service anymore
whatever1 6 hours ago [-]
Thanks, outlook moved it to spam. Will auto delete it in 30 days.
mapt 2 hours ago [-]
TOS changes:
Due to our contract with a Nigerian prince who is seeking to exfiltrate his family wealth, your last month's bill of $14.99 will be refunded in its entirety, and the fee schedule from now on will be as follows:
[6 pages of legalese]
$39.99
[3 more pages of legalese]
You can opt out at any time by sending a notarized letter to our legal department at ___. Should you wish to continue using our service, we will auto-renew you at the new rate on your next login.
p0w3n3d 1 hours ago [-]
I had exactly this case with T-Mobile in my country. They'd sent me price increase but I didn't see it and realised only when got charged 3x more for internet I didn't use. Then I answered them with email that I resign, but they wrote that they need my signature and I need to send it by post office or go to one of their places
alienbaby 2 hours ago [-]
- All your base are belong to us
softwaredoug 2 hours ago [-]
The issue is the consumer here doesn’t want to be forced into arbitration.
There is legislation proposed to end forced arbitration in consumer contracts like ToS.
My personal preference is for laws that promote reasonable limits on "Standard terms and conditions" and then recognizing that nobody reads them and making them applicable regardless of whether people read them or not. Then companies can stop pretending like people are reading the standard terms and unfair terms are just unenforceable. This does require that your civil law defines what unfair terms look like (generally that they are too one sided in favor of the contractor or are surprising given the service provided).
Obviously, this doesn't exist in the USA but does exist in (for example) the Netherlands. I would recommend lobbying in your country for such laws since in practice the vast majority of contracts like these that people face aren't actually negotiated nor negotiable.
I read ninth circle of hell, but this is clearly about ninth circuit. of hell or elsewhere, I dare not say.
dryadin 6 hours ago [-]
Good analysis. Addresses some of the questions here.
Joker_vD 3 hours ago [-]
Well, just one step more, and we'll have "TOS may be unilaterally updated by publishing the new terms on the firm's web site, it is entirely the user's duty to keep himself up to date, continued use implies unrevocable consent and giving up the right to re-negotiate" legal as well.
Terretta 26 minutes ago [-]
That's not one step more, that's been how clickwrap is written since late 90s.
PerplexityAI has been making the rounds of reddit because they had people sign up for 1 Year free of Perplexity Pro via various ways, including linking their PayPal accounts.
After a bunch of people signed up, they scaled down what you get with Pro to basically what a free version used to be, and now the useful version of Perplexity is called Max.
So you had an agreement for a certain service, and they just rugpull you on it.
dathinab 2 hours ago [-]
If "usage imply consent" then couldn't you just write unpleasant TOS updates so that they end up in the spam filter and then argue the user complied.
sending email + user using does not in any sane way guarantee that the user did even know about it
and if usage implies consent how do you even delete you account if you disagree with contract changes, as that requires logging in which can easily be maliciously seen as using the application as any landing page contains app functionality
13 minutes ago [-]
ForgeCommandApp 5 hours ago [-]
The implications for B2B contracts are significant here. In construction, for example, subcontractor agreements often reference separate terms documents that get updated independently. If email notice plus continued use constitutes acceptance, it changes the calculus for how companies manage contract amendments across multi-party project teams. The practical challenge is that on a large project you might have 50+ subcontractors who all need to actively acknowledge revised terms, and this ruling suggests passive acknowledgment through continued use may suffice.
ruined 6 hours ago [-]
by reading or not reading this comment, you imply consent for me to access, manipulate, and/or assume control of any of your checking and savings accounts, investments, stocks, bonds, options, futures, securities, lines of credit, and real estate that you hold now or may acquire in the future, regardless of my chosen method or manner of access. disputes arising from any such activity shall be arbitrated by me. you may opt out at any time by replying “I CONSENT”
thaumasiotes 5 hours ago [-]
You're going to run into problems with the concept of an unconscionable contract.
allreduce 2 hours ago [-]
The point is that the tech companies don't.
Agreeing to say, forced arbitration with a company, because you signed up for say, their streaming service, is obviously unconscionable. What would be even worse if those TOS said that you have to go into arbitration in matters unrelated to the streaming service.
Yet, this is what's happening. Disney used such an agreement (obtained through Disney+ TOS) when a man sued them on behalf of his dead wife, who died in their parks. It's common practice now to have these clauses in TOS, e.g. Discord has it too.
contubernio 6 hours ago [-]
US law fails to recognize real world practice. It's bad engineering at its finest.
thaumasiotes 6 hours ago [-]
The analysis isn't great. In particular, they say "this is a three-factor test, two of the factors are in favor, one is against, two is more than one, so Tile is fine". Normally you'd expect some kind of analysis of how much weight each factor contributes.
That said, they do also say this:
> we determine that Appellees received inquiry notice of the Oct. 2023 Terms. Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” Godun v. JustAnswer LLC, 135 F.4th 699, 710 (9th Cir. 2025), and we do not hold that notice by mass email establishes inquiry notice in every case.
So the HN headline is misleading at best.
(They also note that, while they should consider how normal internet users behave, they can't do this because "there is very little empirical evidence regarding" the question. So they substitute a discussion of how reasonable they find Tile's actions in the abstract.)
dryadin 6 hours ago [-]
Naturally this does not apply in every case. But the comment is fair, I updated headline to be clearer.
motbus3 26 minutes ago [-]
The fact of changing the terms of fact after you sign up and bought products is ridiculous.
ef2k 1 hours ago [-]
This would make more sense if email was 100% guaranteed to be delivered. Not sure if this angle was argued, but just like regular mail, just because something was claimed to be delivered is not enough to prove that it was, hence the existence (in the US) of certified mail and signature return receipts.
data-ottawa 42 minutes ago [-]
TOS updates almost always go to junk/spam. So delivered doesn’t mean seen, nor having a reasonable chance of being seen.
You often don’t determine what goes to junk, that’s decided by thousands of other people and the email provider. Junk folders often auto delete so there’s no recovery.
yread 6 hours ago [-]
By both sides?
jrflowers 6 hours ago [-]
Reminds me of the guy that rewrote the terms of his credit card application and succeeded
On a much smaller scale I did the same thing with a consulting contract. They sent it me and said to full in my own job description and "check the contract". The laziness annoyed me, so I altered the payment terms from 30 days to 7. Every month they paid after around 15 days and I let it go, but one month they hadn't paid after 31 days and I sent them an invoice for late payment for every single invoice to that date (only 4 or 5). I didn't think they'd pay it but they did
2Gkashmiri 6 hours ago [-]
Now this is a case that's something I can get behind and fight for.
ruined 6 hours ago [-]
worth a shot
PunchyHamster 4 hours ago [-]
Of course not
g947o 1 hours ago [-]
If a service provider sends me a bill with
<div style="width:1px; height:1px; overflow:hidden; font-size:1px; line-height:1px;">
New Terms and Conditions
</div>
Does that imply my consent?
49 minutes ago [-]
Bender 2 hours ago [-]
When an enforced agreement can be updated at a whim one may no longer feel compelled to recognize law or those enforcing it. Pray this sentiment does not spread far and wide as citizens outnumber their masters and one day the citizens may come to realize this.
koolala 6 hours ago [-]
So much stuff is getting put in Terms of Services that have nothing to do with using the service. Games will tell you how your allowed to make fan art in them. If I am drawing a picture at my desk I'm not even in the game.
threethirtytwo 3 hours ago [-]
Do you own a semi-popular product? Just send an email to users saying USE OF THIS PRODUCT NOW COSTS 1 BILLION DOLLARS.
And target some user with some money to lose and sue them for it.
dataflow 6 hours ago [-]
Fundamentally, the court seems to be treating this identically to a scenario where the user was ignorant and failed to read their inbox. The court seems to be completely disregarding that it was misdelivered into spam. The word "spam" doesn't even appear more than twice in the ruling (one of which is in an irrelevant footnote)!
Why the heck is the court completely oblivious to that fact when weighing the facts on each side? You'd think a case hinging on a crucial email being sent into spam would at least mention that fact more than once? (!) The court certainly seems to take into account common practices in every other aspect of the case except that most crucial one... why?! No explanation whatsoever? Would this really survive on a hypothetical appeal?
> As Tile users, each Appellee provided an email address during account registration, and should have expected to receive relevant updates there while the account was active.
Well yes, they did, but:
> Because “there is very little empirical evidence regarding” Internet users’ expectations, the focus of this inquiry is “on the providers, which have complete control over the design of their [apps and] websites and can choose from myriad ways of presenting contractual terms to consumers online.”
...Tile should've expected that its email might go into spam, right? Shouldn't the court at least mention this, even if it doesn't lend it any weight?
> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” and we do not hold that notice by mass email establishes inquiry notice in every case.
At least they say their ruling doesn't generalize...
handoflixue 6 hours ago [-]
>> You'd think a case hinging on a crucial email being sent into spam would at least mention that fact more than once?!
> Broad did not locate the Oct. 2023 Notice until January 2024, when she
affirmatively searched for the email and found it in her spam folder.
I think it's rather relevant that she affirmatively searched for and found the email?
nickff 5 hours ago [-]
Unless the user’s e-mail was controlled by their counter-party, what folder the message ended up in seems to be irrelevant to me. The user is the one who selected the e-mail inbox service provider, and has some degree of control over message categorization.
noirscape 3 hours ago [-]
That does sound like there's an exploitable element there isn't it?
Statistically speaking, most people use one of the biggest email providers, which use their own models to detect spam (or even quietly drop messages). If you're doing an unpopular TOS change, why not set the mail up to still be RFC compliant but in such a way where the mail isn't going to be allowed through by any of the providers. Then you can just claim the problem is userside.
For example, the Message-ID header is technically not required (SHOULD rather than MUST), but as a spam detection measure, Gmail just drops the message entirely for workspace domains: https://news.ycombinator.com/item?id=46989217
hrimfaxi 1 hours ago [-]
Okay and if you did that only for that message your intent would be really easy to prove.
thaumasiotes 5 hours ago [-]
> The court seems to be completely disregarding that it was misdelivered into spam.
Spam categorization isn't a delivery issue. The delivery is the same whether you, upon taking delivery, toss the message into a bin labeled "spam" or one labeled "inbox".
quietbritishjim 3 hours ago [-]
I guess it's an instance of a more general principle: sending an email doesn't guarantee it gets to the user's inbox, never mind that it gets read.
Even if you are OK with the idea that a user can be presented updated TOS with no option to disagree (I don't, but put that aside for a moment), it should still require a mechanism that actually guarantees (or at least verifies) that the user has seen that the terms are updated. Email is not that. (An unskippable notice on login to a web service would be.)
hrimfaxi 1 hours ago [-]
If registered mail is sufficient and that only requires proof of delivery/receipt, why would the same thing for email be insufficient?
throwaway81523 4 hours ago [-]
I have altered the deal. Pray I do not alter it again.
flenserboy 29 minutes ago [-]
interesting. if this is to be allowed, it must be allowed both ways.
throwaw12 3 hours ago [-]
Why not remove TOS completely, if your provider is anyway forcing new terms?
Suppose I start with simple TOS at the beginning: do not use in criminal scenarios
Then I change it to: do whatever you do with it, you are responsible for it anyways
I can even do this per sign-up, show TOS which makes sense, then next day send new TOS to allow everything
lurk2 4 hours ago [-]
The original Minecraft EULA did not have any of the usual boilerplate language to support unilaterally modifying the terms. I had a Minecraft account purchased under this original EULA which was modified a year or two after I bought the game. Around 5 or 6 years ago, Mojang emailed me about changes to their login system that would require me to migrate my account to Microsoft’s system (no doubt under new T+C), but the migration process never worked and they never responded to my support requests.
When I tried to resolve it a couple of years ago I received boilerplate emails informing me that the migration period had ended.
So if you deal with companies that simply don’t honor their contracts—companies like Microsoft and Mojang—you don’t even need use to imply consent, because they can just lock you out of your purchases and tell you to pound sand.
netcan 3 hours ago [-]
I remember various judges writing ope-eds about being presented a 40 page TOS for updates. Southpark also did an episode.
TOS simultaneously became extremly important, commanding CEO attention and became completely ritulized.
I'm surprised that the legal profession has tolerated this is escalation of dysfunction.
krickelkrackel 3 hours ago [-]
Even if it makes things overly complicated sometimes, I like the EU style that forces companies to make people actively confirm their consent, and puts the 'inform' part of 'informed consent' into the company's responsibility.
hananova 13 minutes ago [-]
Yeah. I enjoy the modern trend of not even showing the EULA on the screen where you agree to it. Those will all be so easy to get thrown out if they ever become a problem.
jacquesm 51 minutes ago [-]
And courts keep wondering why commoners lose respect for the law. I know a judge and had a couple of really interesting conversations with him. We agreed on lots of things but there was one item that stood out for me that made a massive difference in interpretation: to him the map was the territory, he saw the law as the thing that made the world, not the other way around. I always found that to be extremely interesting in that it explains why some of those decisions come across so completely tone deaf. On paper it may all look like it makes sense but in the real world it leads to bonkers effects.
codelion 5 hours ago [-]
the key issue is the interpretation of "consent" when continued use is the only option. aree users truly consenting, or are they simply left with no alternative?
batrat 4 hours ago [-]
I had the somehow the same problem with a mobile operator here in EU. They said just by sending an email I agree with their new terms and subscriptions. It's a gray area, IMO. They could simply terminate the service but who wants that?
hobs 34 minutes ago [-]
"and we do not hold that notice by mass email establishes inquiry notice in every case."
Basically the case met two of three factors and so they said yeah probably but its not establishing precedent because each case is special.
cbsmith 5 hours ago [-]
Might be fun to take some BSD or MIT licenses and send out e-mails updating them to GPLv3...
duskdozer 4 hours ago [-]
No problem - I'll just have my AI copy it to turn it back to MIT :)
ArchieScrivener 3 hours ago [-]
>US Court of Appeals
Call me when the only court that matters makes a move.
6 hours ago [-]
Pinegulf 5 hours ago [-]
To be fair, this document says that they updated TOS and by continuing to use the app, you agree. (End of page 3)
chrismorgan 6 hours ago [-]
> In October 2023, Tile sent to all accountholders […] an email with the heading “Updated Terms of Service and Privacy Policy” […] to the email address provided by accountholders during registration, […] “[i]f you continue to use any of [Life360 and Tile’s] apps, or access our websites (other than to read the new terms) on or after November 26, 2023, you are agreeing to the [Oct. 2023 Terms].”
> Broad did not locate the Oct. 2023 Notice until January 2024, when she affirmatively searched for the email and found it in her spam folder. […]
> Doe “never knew that Tile sent” the Oct. 2023 Notice and so never “read any revised or updated Terms.”
> The district court held that neither Broad nor Doe assented to the Oct. 2023 Terms.
So then it was challenged, and the appeals court gets into the weeds: were the Appellees “on inquiry notice of the Oct. 2023 Terms”? (“Inquiry notice” is clearly a specific legal term, I can’t comment on its precise meaning.)
The entire thing seems to hinge on whether appropriate notice was given: it seems to be accepted by all parties and case law that “continuing to use after such-and-such a date implies consent” is okay. (This is explored at the end of the document: simply using the app is treated as “unambiguously manifesting assent”, presuming inquiry notice.)
The court decides: yes, it was sent in the appropriate way and clearly marked and described. And
> Although the email did not say specifically that the arbitration agreement would be updated, reasonable notice does not require the email to discuss every revision.
They do say
> Tile could have done more to ensure that all its users were on inquiry notice of the Oct. 2023 Terms. Tile could, for example, have interrupted users’ next visit to the Tile App with a clickwrap pop-up notice. […] Because Tile should have known that at least some of its users do not closely monitor email, […] and Tile should have furnished additional notices, this factor weighs against finding inquiry notice.
They conclude: two factors for, one against, and thus determine that inquiry notice was received, although Tile didn’t handle things properly themselves, and should have done more.
But they avoid setting this as universal precedent:
> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” […] and we do not hold that notice by mass email establishes inquiry notice in every case.
—⁂—
This is my interpretation from a brief read of this interesting-sounding document. I’m neither a lawyer nor American. My understanding is almost certainly incomplete. I think I have avoided inserting any interpretation of my own, others can do that.
handoflixue 6 hours ago [-]
The argument seems to be that for Broad, there was clear receipt of the email, even if it was delayed by being in the spam folder - we know she found it eventually.
Doe is a bit more interesting, since she re-downloaded the app, and they're saying that in-and-of-itself is sufficiently clear intent/consent to the current Terms of Service
("Doe unambiguously manifested assent to the Oct. 2023 Terms by
downloading the Tile App in March 2024 and using the Scan and Secure feature in
attempting to locate her alleged stalker’s Tile Tracker.")
vcfunding 1 hours ago [-]
Trust no one.
Never sign or use anything.
Noaidi 2 hours ago [-]
Gonna try this with my landlord....
blitzar 5 hours ago [-]
The court sounds bought, I hope they paid them well.
actionfromafar 2 hours ago [-]
OTOH they have a lot inventory of laws to shift before Sundown, so you might get a good price if you act now :-D
shevy-java 3 hours ago [-]
How do they ensure that the email reaches the destination though?
I have had emails never delivered to me, not due to my own fault
but the service provider filtering it away before I could do
anything. It is also dangerous to assume "use implies consent".
I am sure there are other ways to ensure terms of use to be
changed; if it is a web-application then one could only resume
using it if the services were accepted before.
iririririr 3 hours ago [-]
well, I hope the companies doing that have someone watching contact@ to cut my acces when I send my version of thr updated terms of service, since allowing my usage can imply consent. Right?
soganess 5 hours ago [-]
Is this panel (Gould/Clinton, Nguyen/Obama, and Bennett/Trump) a standard pull for the ninth? Considering how many judges are in the ninth:
So I'm wondering if it is some procedural thing I am not privy to?
hsbauauvhabzb 6 hours ago [-]
The email account I cannot access because google decided to ask me for a captcha for which I have no knowledge of, and the don’t have a human help desk that I can contact to prove ownership by providing ID documents?
Got it.
EarthAmbassador 6 hours ago [-]
Exactly.
I don't understand how a community such as this, as connected as it is, can't back channel a message to Google brass to do something about these lockouts, which occur frequently and are unnecessary. There is no way Google doesn't know about them.
Gmail is an essential piece of pervasive personal infrastructure, upon which hundreds of millions of people rely. People are losing irreplaceable data for lack of care on the part of Google. The cost of providing a way to prove identity while maintaining security ought to be part of the cost of doing business for Google as it provides Gmail.
Surely there are some Google employees lurking who can chime in on this frustrating neglect.
hsbauauvhabzb 4 hours ago [-]
The cost of adding a support desk outweighs any potential profit, I would imagine by a huge amount given accounts are ‘free’.
It’s not that the executive don’t know, it’s that they don’t care.
duskdozer 4 hours ago [-]
If they weren't making enough money from having people use their "free" accounts, they wouldn't offer them.
kotaKat 3 hours ago [-]
The jackasses at Ring provide a clickwrap forced EULA consent in their app update changelogs.
They slip "By using this app, you agree to Ring’s Terms of Service (ring.com/terms). You can find Ring’s privacy notice at ring.com/privacy-notice." into their app update changenotes for every update.
michaelteter 6 hours ago [-]
US capitalism (aka, powerful financial entities driving policy).
To be fair, not all people in business or government prioritize "the all-mighty dollar" over everything else. Unfortunately, those who don't usually have principles; those who do often are willing to break rules. This is not an even match.
nozzlegear 6 hours ago [-]
It's just an appellate court ruling, not the summary execution of Bernie's last faithful warrior. It can't even set precedent since the opinions are unpublished.
6 hours ago [-]
Noaidi 2 hours ago [-]
JFC, BOYCOTT EVERYTHING!
Seriously, WTF? We know the leverage we all have but we refuse to use it because "convenience".
apples_oranges 5 hours ago [-]
lol what a load of crap.. since when can a contract be changed by one side only without the other one signing it off?
dathinab 2 hours ago [-]
and sending a notification without any (reasonable) form of "has been read/noted confirmation"
email is notorious for arbitrarily not being delivered due to "spam/scam" filters misclassifying things
tastybberries 5 hours ago [-]
In summary, the Ninth Circuit applied California law to determine that users received sufficient notice. Are other states' laws on notice similar enough to California law for this ruling to be applied broadly? I understand that the order is unpublished so the ruling has little precedential value regardless but I wonder whether the three-factor test is used in other states.
riteshyadav02 6 hours ago [-]
[dead]
throw7384748r 5 hours ago [-]
[flagged]
PunchyHamster 4 hours ago [-]
Sir this is Wendy's
thaumasiotes 5 hours ago [-]
Dog owners are responsible for hospital bills.
Rendered at 13:00:42 GMT+0000 (Coordinated Universal Time) with Vercel.
There are too many demands on our attention and our wallets and most of us aren't getting more money or time. I cancelled all the family's streaming services in 2025. Everyone adapted. It turns out a lot of things we are told we need, we really don't. People lived without them as recently as a few years ago. A lot of the novelty of mobile, streaming, social media and weird tech nobody needs has worn off and the value has been eroded. There are so many better things to do and experience and you don't need to hand over your privacy or sign your soul away.
They feel like the legal equivalent of Calvin Ball. So long as you just stash it in a ToS, you can apply any stupid rule your lawyers can imagine.
I understand that it’s not so easy for Americans whose internet activity is constantly scrutinized. I’ve had the privilege of choosing exactly who and what I pay.
I usually don’t subscribe to any streaming service, but when I do choose to pay for something, my money goes to smaller entities that I don’t actively want to see fail.
In my book, none of the Hollywood deserves a single cent. It’s an amazing feeling to be in the power to dictate this.
I feel like we can’t even call it “advertising“ anymore. It’s such a misnomer. It’s basically data fracking and psychological warfare to make us all into little addicts. This whole industry built around chasing “the attention economy” is a social blight.
> <DmncAtrny> I will write on a huge cement block "BY ACCEPTING THIS BRICK THROUGH YOUR WINDOW, YOU ACCEPT IT AS IS AND AGREE TO MY DISCLAIMER OF ALL WARRANTIES, EXPRESS OR IMPLIED, AS WELL AS DISCLAIMERS OF ALL LIABILITY, DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL, THAT MAY ARISE FROM THE INSTALLATION OF THIS BRICK INTO YOUR BUILDING."
<DmncAtrny> And then hurl it through the window of a Sony officer
<DmncAtrny> and run like hell
Or Disney telling you they are exempt from killing someone in their theme park restaurants because you signed up to Disney+… https://www.bbc.co.uk/news/articles/c8jl0ekjr0go
https://www.allergicliving.com/2026/03/03/lawsuit-against-di...
"Disney dropped its bid to force arbitration over the streaming service’s clause in August 2024, following a barrage of public backlash."
And not because it was a clearly outrageous thing to do.
The argument was not "they agreed to a EULA 5 years ago and therefore mandatory arbitration in all disputes with Disney".
This is a privately owned restaurant at a glorified shopping mall within the larger Walt Disney World resort. If you went to a normal restaurant in a normal shopping mall in Florida the mall owners would generally not be liable unless there's something else going on.
The theory that Disney is liable here is more than anything based on the *restaurant featuring on their app.* The EULA for *that app* would certainly be relevant to this argument.
Now, the Disney lawyers also tried to argue that the Disney+ EULA would actually (at least plausibly) be relevant. That is more than a bit of a stretch, especially for a free trial from years ago, and I'd be surprised (but IANAL) if such a theory would actually hold up in court. Still, on a spectrum from "person died due to maintenance failure on a Magic Kingdom ride" to "person died from going to a restaurant featured on a Disney+ program", if you're arguing that the Disney+ EULA is relevant, this is a whole lot closer to the latter than the former.
(If I recall the details correct, it has been a while since I read into that case.)
and you are not allowed to criticize it or write about the size of it or how much meat there is in it or how filling it is to eat the burger.
and you are definitely not allowed to compare it to burgers from other companies.
https://ppc.land/german-businesses-systematically-delete-cri...
I'd be surprised if all those stars align anytime soon.
To be fair existence of TOS is suspiring.
And the way the resteraunt this right is by covering their walls with TOS text like an Egyptian tomb.
Why? Why should a government prohibit private parties from agreeing to anything other than those 3 things?
> Especially garbage like what you're allowed to do with the stuff you get from the service even while not using the service, or about setting up competing products. It's like McDonald's selling you a burger and telling you how to eat it.
It is vaguely like that, but but I'm not sure the analogy facilitates understanding of this subject. McDonalds shouldn't tell you how you can eat your burger, therefore... companies must not enforce any terms on their services aside from those things. Why?
I'm not saying any term should be enforceable. Contract law has a long history against that. I just wonder how and where you draw the line and what existing law is insufficient.
USA: There is no solution!
Rest of world: slightly embarrassed look
There are legal terms and concepts like good faith, expected and unexpected terms, reasonable expectations, abuse of a legally unsophisticated party and so on. In other countries, neither the fiction that everyone reads or is expected to read the 10-page "dining contract" of a restaurant exists nor is it allowed (enforceable) to put any unrelated or unreasonable crap in there.
because ToS have been long used to demand unreasonable things and threaten people with expensive lawsuits. The advantage of companies losing bullying power significantly outweighs the disadvantage of less business freedom
ToS are normally "contracts" (hard to even call them that) between a large corporation with very high resources for a lawsuit and an individual with very low resources. The power imbalance makes challenging ToS for the individual unfeasible in 99% of cases
Why those in particular though? The criminal law one sure that's a part of contract law already. Why the others? Why not different ones? It was just asserted that those were reasonable and no other terms are.
The point they were making (rightly or wrongly) seems to be that contract law just isn’t the right way of managing consumer-business relationships. I suspect that actually meshes with the intuitions of a broad swath of the population, who want a reliable, predictable, consistent, and consumer-beneficial set of norms and laws around all consumption so that it is easy to manage and understand when you are departing from the norm and to be able to confidently conduct a public life knowing that your purchases are not subjecting you to any surprising gotchas other than having lost the money and having acquired a product.
You could take this line of thought charitably in another direction to assert that “unusual” agreements are presumed unenforceable but not that there are no legal mechanisms for adding additional clauses.
Because a severe power imbalance allows for abuse, and governments should prohibit such abuse.
https://en.wikipedia.org/wiki/Unconscionability
https://en.wikipedia.org/wiki/Inequality_of_bargaining_power
We shouldn't use votes to squelch opinions we don't hold. We should use them to improve the discourse.
> I'm not saying any term should be enforceable. Contract law has a long history against that. I just wonder how and where you draw the line and what existing law is insufficient.
This is not a magic list of 3 things that I think is complete.
I think there is a compromise between allowing companies to add arbitrary terms, including some which are enforceable but (by my feeling) unreasonable, and excluding unreasonable terms completely with a blanket ban, which no doubt would result in some companies being unable to add reasonable terms that are not in the list.
I think if we picked the 3 terms I outlined in my comment, the result would be a more pleasant situation than the one we have.
You could just say I disagree about what is an enforceable term. The point of the analogy is to show how ridiculous I find the current judicial reasoning, which is something along the lines of "if you don't like the term, you don't have to use the service, so it doesn't really matter how restrictive the terms are". I really think this is how particularly US judges think about this sort of thing, and I think it does a lot of harm to society. People find it obviously unreasonable for McDonalds to say how you can eat your burger, or for a book store to say what you can do with the information in your book, but when a service tells you how you can use the data you get from them, it's fair game. It's ethically inconsistent.
Added to that is the forced arbitration clauses they exist in most ToS. See the example about Disney getting out of a wrongful death suit at a theme park beciaee the plaintiff had a free Disney account for a PS5 that he bought many years earlier.
Tl;dr - buying a piece of software or home appliance shouldn’t come with more strings attached than buying a piece of real estate.
In a situation like that, users have no means of resisting egregious terms, and no you cannot pull up stuff like "if you don't like it, don't buy it". As I wrote, the users are uncoordinated, and would take a huge effort to coordinate. Boycotting services rarely works (if ever). So what we end up with is that legal teams employed by firms optimize to shove as much bullshit into ToS as they can, the users grind their teeth and bear the bullshit, and get shittier service. Nobody really wins, because I'd argue the marginal gain for the company is minimal at best from this.
The government is not there just to enforce laws, but also to legislate such that the scales are balanced. Otherwise we may as well live in a dictatorship.
> The government is not there just to enforce laws, but also to legislate such that the scales are balanced. Otherwise we may as well live in a dictatorship.
Should the state just prohibit all agreements between two parties unless the state's adjudicator decides they are exactly equal in "power" and permits it? Sounds horrific, like a dictatorship. The government is not my guardian and does not do my thinking for me. I get that many people are subservient and would much prefer that, but that's no good either. There's an enormous middle ground between anarchy and "the state intervenes to allegedly 'balance the scales' in every aspect of peoples' private lives".
Power being disproportionate is obviously not sufficient to void terms - that's not what the comment you're replying to said. It is necessary to void terms when there is a power imbalance.
> Should the state just prohibit all agreements between two parties unless the state's adjudicator decides they are exactly equal in "power" and permits it?
This is obviously ridiculous and makes me think you are not arguing in good faith. Terms have to justify their existence according to logical principles that we argue about. It does not follow that there has to be a "state's adjudicator"! I am just describing how democracies come up with laws - it is not some fantasy Orwellian nightmare.
> I get that many people are subservient and would much prefer that
Ironic comment!
What are you trying to say here? I didn't claim the previous poster didn't think it was necessary, I was just commenting on the sufficiency part of the claim -- sufficient being a subset of necessary.
> This is obviously ridiculous and makes me think you are not arguing in good faith.
What is ridiculous is that you're pretending not to recognize a reductio ad absurdum, particularly in the context of a reply that included McDonalds dictating how you eat a hamburger! Makes me think you are not arguing in good faith, I may be forced to report you to an adjudicator to rule on how we are permitted to debate.
> Terms have to justify their existence according to logical principles that we argue about.
And that's exactly what I'm asking about. OP made a claim about what terms were "justified" and I'm trying to find out the basis for them.
> Ironic comment!
It isn't, you're just unable to address it.
It's pretty simple. You can write whatever you want into a contract, but if you want to enforce an unreasonable term, you will lose in court and might be forced to remove the term from current and future contracts. That's how it works everywhere. The difference between legislations is just what is considered a reasonable term.
This is a strawman and you know it. Please at least make an attempt to argue in good faith, otherwise there's no point.
Of course there should be a reasonable middle-ground. The current situation with completely bogus ToS is not it.
Let me turn it around: should the state just abandon it's duty of creating an fair and equal playing field between large corporations and clients and let society devolve into a corporatocracy where laws are enforced purely to further corporate interests? Because that's exactly what you seem to be suggesting.
See? Not particularly conductive to discourse, is it :D
Uh yes? And you clearly know it too. It was a bit like your McDonalds strawman.
> Please at least make an attempt to argue in good faith, otherwise there's no point.
No need to get in a huff when we obviously both know what we're talking about. It's not conducive to the discussion.
> Of course there should be a reasonable middle-ground. The current situation with completely bogus ToS is not it.
I don't know exactly what the current situation with completely bogus ToS is, I'm willing to accept it could be adjusted. I was asking specifically about your proposed adjustment to it though. Your reasons for the new framework you suggested.
> Let me turn it around: should the state just abandon it's duty of creating an fair and equal playing field between large corporations and clients and let society devolve into a corporatocracy where laws are enforced purely to further corporate interests? Because that's exactly what you seem to be suggesting.
That isn't what I was suggesting. I was asking you how you came to your conclusion in the previous post. (EDIT: Sorry you did not conclude that, the grandparent did the parent of my first post you replied to, but you posted seemingly in support)
I get this periodically on our overly-computerized car: Here are new T&C, click yes to agree. You can make the screen go away temporarily, but there is no options to say "no, I disagree".
The US breaking its contract law to treat non-contracts as contracts is one of the most insane things I've seen a legal system do to itself.
https://newsroom.spotify.com/2025-09-24/spotify-terms-creato...
The key difference, is that the US is many jurisdictions (Federal + 50 states + a lot of others, from counties to cities to territories to MANY others), and the variance amongst those is high.
The key thing well regulated places like Sweden get right, is that in consumer contracts you have minimum bars that you must meet regardless of what you can get the consumer to agree to. So, for instance, return policies, for goods bought online have minimum standards they must meet.
In the US, these things have huge variability. There are well regulated states, and well, the others.
Yes, but Swedish contract law actually is like this. A contract is a specific agreement, it can never be "Oh well, you can add provisions as you like if you send them to me" or "I will pay whatever".
If you have an agreement that says one party can announce changes, you don't have a contract, because those changes were not agreed to.
To me the insane part is that contracts don't have to be registered with the courts (or some qualified third party) ahead of time.
Like each party could show up with their own piece of paper (or not be able to provide it). Which is largely the issue here in that one party is showing up with a 2021 document and the other a 2023 document.
Yes, of course.
We don't have any rules about contracts needing to be written down or registered or anything of that sort. Even verbal agreement are valid, and you are entering into simple contracts even when you buy something in a store.
Can you imagine buying a car in the seventies and a month later finding a technician under your parked car making adjustments to it? You’d kick them out and call the police. But put an internet connection in between and it’s ok.
Same goes for wiretapping (compare Nixon vs current state), unlicensed hotels and cabs being ok when booked by an app, and so on.
I get emails from time to time that "Policy X has changed and will take a effect in X weeks" so at least I'm given advance notice, and am basically OK with that approach as long as the changes are spelled out clearly and not hidden in hundreds of pages of legalese. Maybe an LLM would help here, and translate what the new changes in terms really means so I can decide whether to continue with the service or not. In general I'm OK as long as I'm given enough notice and it's clear what is happening.
The same thing happens with pricing. What does a company do when they want to increase rates, or change their products? They send out a notification that starting on a certain date, the prices will go up. I don't think anyone objects to that. How is a T&C change different?
If the company would like their T&C to carry the force of a binding contract upon me, then yes, keeping track of what I actually signed seems like the absolute bare minimum they must do.
Either these things are real contracts or they are not. The idea that it's too onerous for a company to keep track of their contractual agreements is absurd.
Where it gets a little muddy for me is hardware with services attached (a new EV, etc)… you pay $60k for a car, it really shouldn’t be possible to force a new ToS on something they has physical ownership. And definitely not possible to brick or de-option the car due to refusal to accept new ToS.
Of course you do. I have a fixed contract with my mobile carrier - if they want to change rates, tough luck. Once the current contract expires, they can indeed notify me that the new contract will auto-renew with a new rate, and I can either accept it or choose a new carrier. But they very much can't change prices, or alter services rendered, while the current contract is in force.
This all just needs statutory laws and eliminate TCs for basic services. It is a scam.
Rental contract sure. Employment contract yeah.
I bet a single set of statutory rights for consumer and provider could cover most things.
B2B is different.
Of course it irks them much to not be able to sell me less for more. But they can't do anything short of disconnecting me and that is unspeakable for a mobile operator.
I like this very much.
The real problem is that the law allows this power imbalance and doesn’t tip the scales to even it out for the end user. That for me is evidence that the law is made for the companies (probably by the companies too).
I have the same in the car. Been postponing for 2 years now.
I wonder if this can be weaponized by users too (probably no legal basis for this), just send them a new T&C again and again and say delivering the service is consent. Force the companies to say the quiet part out loud: users are not allowed to have the same liberties as the company.
Yes, everything is becoming more and more convenient for big corporations while individual citizens need to navigate an ever increasingly complex world. Laws are designed to protect capital not individual citizens nor society. That never ends well.
That’s domestic terrorism (charges)
Worth noting, the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke.
Also worth noting, the old T&C you agreed to probably included a clause about these sorts of updates, too.
So, right there, you've already explicitly agreed to a contract that can be terminated if you don't accept updates.
> The company should not be able to change those conditions without my explicit permission.
The legal argument is that (a) you were explicitly notified of these changes, (b) your rights to use the service under the previous contract have been revoked, and (c) you're continuing to use the service.
So, either you're stealing their service, or you did in fact explicitly agree to the new contract - "“Parties traditionally manifest assent by written or spoken word, but they can also do so through conduct.” Berman, 30 F.4th at 855."
I think the point of contention here is that in practice, there is no way to continue on the old terms of service/contract. Suppose you're using a note taking app, and one day they update their terms of service to say that they can use your notes to train their AI. "Continued use implies consent," so you are locked into the new terms of service unless you stop using the app right then and there. You are not afforded the opportunity to decline the new terms of service and continue on the old ones.
Vader might say he can change the deal at any point, but consumer law generally requires that what is purchased reflects what is advertised.
If you don't agree to a new set of terms, because the service is changed from what you purchased, then both parties generally should still be party to the previous.
Notification alone, is not enough. Agreement is required.
"I do not agree with your new TOS and will continue under your old TOS, and I will continue to use your service". And see when they will close your account down.
Too bad that v1.0 of the ToS their victims "sign" forced all disputes into their lap-dog arbitration system.
It's really no different. In fact, in some ways it's worse because McDonald's can send the contact via certified mail.
These courts just want to clear their dockets which is why they reversed.
Like if you're a lawyer and you read this do you go "My client will never win a case like this?" or do you go "we should go to trial"?
Sure you won't get summary judgement but if the courts rule this way once they can rule this way again.
No one is reading them, and it would be practically impossible to do so. Signing something you cannot practically read and understand clearly does not mean you actually accept them.
How can we wake people up to this absurdity? The law should exist to help society. When it is not helping, reform it.
Due to our contract with a Nigerian prince who is seeking to exfiltrate his family wealth, your last month's bill of $14.99 will be refunded in its entirety, and the fee schedule from now on will be as follows:
[6 pages of legalese]
$39.99
[3 more pages of legalese]
You can opt out at any time by sending a notarized letter to our legal department at ___. Should you wish to continue using our service, we will auto-renew you at the new rate on your next login.
There is legislation proposed to end forced arbitration in consumer contracts like ToS.
https://hankjohnson.house.gov/media-center/press-releases/re...
Obviously, this doesn't exist in the USA but does exist in (for example) the Netherlands. I would recommend lobbying in your country for such laws since in practice the vast majority of contracts like these that people face aren't actually negotiated nor negotiable.
Cases cited from '98 and '00: https://en.wikipedia.org/wiki/Clickwrap
sending email + user using does not in any sane way guarantee that the user did even know about it
and if usage implies consent how do you even delete you account if you disagree with contract changes, as that requires logging in which can easily be maliciously seen as using the application as any landing page contains app functionality
Agreeing to say, forced arbitration with a company, because you signed up for say, their streaming service, is obviously unconscionable. What would be even worse if those TOS said that you have to go into arbitration in matters unrelated to the streaming service.
Yet, this is what's happening. Disney used such an agreement (obtained through Disney+ TOS) when a man sued them on behalf of his dead wife, who died in their parks. It's common practice now to have these clauses in TOS, e.g. Discord has it too.
That said, they do also say this:
> we determine that Appellees received inquiry notice of the Oct. 2023 Terms. Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” Godun v. JustAnswer LLC, 135 F.4th 699, 710 (9th Cir. 2025), and we do not hold that notice by mass email establishes inquiry notice in every case.
So the HN headline is misleading at best.
(They also note that, while they should consider how normal internet users behave, they can't do this because "there is very little empirical evidence regarding" the question. So they substitute a discussion of how reasonable they find Tile's actions in the abstract.)
You often don’t determine what goes to junk, that’s decided by thousands of other people and the email provider. Junk folders often auto delete so there’s no recovery.
https://www.independent.co.uk/news/world/europe/read-the-sma...
And target some user with some money to lose and sue them for it.
Why the heck is the court completely oblivious to that fact when weighing the facts on each side? You'd think a case hinging on a crucial email being sent into spam would at least mention that fact more than once? (!) The court certainly seems to take into account common practices in every other aspect of the case except that most crucial one... why?! No explanation whatsoever? Would this really survive on a hypothetical appeal?
> As Tile users, each Appellee provided an email address during account registration, and should have expected to receive relevant updates there while the account was active.
Well yes, they did, but:
> Because “there is very little empirical evidence regarding” Internet users’ expectations, the focus of this inquiry is “on the providers, which have complete control over the design of their [apps and] websites and can choose from myriad ways of presenting contractual terms to consumers online.”
...Tile should've expected that its email might go into spam, right? Shouldn't the court at least mention this, even if it doesn't lend it any weight?
> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” and we do not hold that notice by mass email establishes inquiry notice in every case.
At least they say their ruling doesn't generalize...
> Broad did not locate the Oct. 2023 Notice until January 2024, when she affirmatively searched for the email and found it in her spam folder.
I think it's rather relevant that she affirmatively searched for and found the email?
Statistically speaking, most people use one of the biggest email providers, which use their own models to detect spam (or even quietly drop messages). If you're doing an unpopular TOS change, why not set the mail up to still be RFC compliant but in such a way where the mail isn't going to be allowed through by any of the providers. Then you can just claim the problem is userside.
For example, the Message-ID header is technically not required (SHOULD rather than MUST), but as a spam detection measure, Gmail just drops the message entirely for workspace domains: https://news.ycombinator.com/item?id=46989217
Spam categorization isn't a delivery issue. The delivery is the same whether you, upon taking delivery, toss the message into a bin labeled "spam" or one labeled "inbox".
Even if you are OK with the idea that a user can be presented updated TOS with no option to disagree (I don't, but put that aside for a moment), it should still require a mechanism that actually guarantees (or at least verifies) that the user has seen that the terms are updated. Email is not that. (An unskippable notice on login to a web service would be.)
Suppose I start with simple TOS at the beginning: do not use in criminal scenarios
Then I change it to: do whatever you do with it, you are responsible for it anyways
I can even do this per sign-up, show TOS which makes sense, then next day send new TOS to allow everything
When I tried to resolve it a couple of years ago I received boilerplate emails informing me that the migration period had ended.
So if you deal with companies that simply don’t honor their contracts—companies like Microsoft and Mojang—you don’t even need use to imply consent, because they can just lock you out of your purchases and tell you to pound sand.
TOS simultaneously became extremly important, commanding CEO attention and became completely ritulized.
I'm surprised that the legal profession has tolerated this is escalation of dysfunction.
Basically the case met two of three factors and so they said yeah probably but its not establishing precedent because each case is special.
Call me when the only court that matters makes a move.
> Broad did not locate the Oct. 2023 Notice until January 2024, when she affirmatively searched for the email and found it in her spam folder. […]
> Doe “never knew that Tile sent” the Oct. 2023 Notice and so never “read any revised or updated Terms.”
> The district court held that neither Broad nor Doe assented to the Oct. 2023 Terms.
So then it was challenged, and the appeals court gets into the weeds: were the Appellees “on inquiry notice of the Oct. 2023 Terms”? (“Inquiry notice” is clearly a specific legal term, I can’t comment on its precise meaning.)
The entire thing seems to hinge on whether appropriate notice was given: it seems to be accepted by all parties and case law that “continuing to use after such-and-such a date implies consent” is okay. (This is explored at the end of the document: simply using the app is treated as “unambiguously manifesting assent”, presuming inquiry notice.)
The court decides: yes, it was sent in the appropriate way and clearly marked and described. And
> Although the email did not say specifically that the arbitration agreement would be updated, reasonable notice does not require the email to discuss every revision.
They do say
> Tile could have done more to ensure that all its users were on inquiry notice of the Oct. 2023 Terms. Tile could, for example, have interrupted users’ next visit to the Tile App with a clickwrap pop-up notice. […] Because Tile should have known that at least some of its users do not closely monitor email, […] and Tile should have furnished additional notices, this factor weighs against finding inquiry notice.
They conclude: two factors for, one against, and thus determine that inquiry notice was received, although Tile didn’t handle things properly themselves, and should have done more.
But they avoid setting this as universal precedent:
> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” […] and we do not hold that notice by mass email establishes inquiry notice in every case.
—⁂—
This is my interpretation from a brief read of this interesting-sounding document. I’m neither a lawyer nor American. My understanding is almost certainly incomplete. I think I have avoided inserting any interpretation of my own, others can do that.
Doe is a bit more interesting, since she re-downloaded the app, and they're saying that in-and-of-itself is sufficiently clear intent/consent to the current Terms of Service
("Doe unambiguously manifested assent to the Oct. 2023 Terms by downloading the Tile App in March 2024 and using the Scan and Secure feature in attempting to locate her alleged stalker’s Tile Tracker.")
Never sign or use anything.
I have had emails never delivered to me, not due to my own fault but the service provider filtering it away before I could do anything. It is also dangerous to assume "use implies consent". I am sure there are other ways to ensure terms of use to be changed; if it is a web-application then one could only resume using it if the services were accepted before.
> https://en.wikipedia.org/wiki/United_States_Court_of_Appeals...
It seems less likely to (randomly) have the same panel on two higher profile cases so close to each other:
> https://courthousenews.com/ninth-circuit-keeps-block-on-dhs-...
So I'm wondering if it is some procedural thing I am not privy to?
Got it.
I don't understand how a community such as this, as connected as it is, can't back channel a message to Google brass to do something about these lockouts, which occur frequently and are unnecessary. There is no way Google doesn't know about them.
Gmail is an essential piece of pervasive personal infrastructure, upon which hundreds of millions of people rely. People are losing irreplaceable data for lack of care on the part of Google. The cost of providing a way to prove identity while maintaining security ought to be part of the cost of doing business for Google as it provides Gmail.
Surely there are some Google employees lurking who can chime in on this frustrating neglect.
It’s not that the executive don’t know, it’s that they don’t care.
https://play.google.com/store/apps/details?id=com.ringapp
They slip "By using this app, you agree to Ring’s Terms of Service (ring.com/terms). You can find Ring’s privacy notice at ring.com/privacy-notice." into their app update changenotes for every update.
To be fair, not all people in business or government prioritize "the all-mighty dollar" over everything else. Unfortunately, those who don't usually have principles; those who do often are willing to break rules. This is not an even match.
Seriously, WTF? We know the leverage we all have but we refuse to use it because "convenience".
email is notorious for arbitrarily not being delivered due to "spam/scam" filters misclassifying things