Resisting Terms of Use, Or: The Revolution Will Not Be Boilerplate

Technology users are becoming frustrated over privacy-invasive terms of use agreements. In the past, this frustration was difficult to channel effectively enough to regularly change the terms. However, that futility is slowly abating. Users are increasingly attempting to negotiate the terms of their agreement through technology or a protracted exchange of public criticism and response. I would like to explain why a few recent developments leave me optimistic that a combination of resistance and innovation can offset some of the inequities in the standard-form contracts formed between users and websites.

Standard-form contracts for online or technology services, typically referred to as "terms of use" or "terms of service," have always been bothersome for users. Users that ignore the fine print are left to wonder what they just agreed to and those brave few that actually took the time to read probably didn't like what they found. Yet, most individuals continue to use the websites and technologies that required these agreements, likely because of the perceived low likelihood that these boilerplate terms would actually be enforced or even applicable. Outside of some intellectual property, scraping and jurisdictional disputes, historically these agreements have been largely ignored by the general public, sneaking their way into the tapestry of an individual's legal obligations.

However, it feels like user discontent with privacy-related terms of use agreements is mounting. This discontent has spawned two similar yet distinct responses: resistance and innovation. Both responses challenge the idea that users have a binary choice with terms of use agreements: total acceptance or just walk away.

First, resistance. This past week, OnStar, a company that offers navigation and safety systems for cars, announced via a change in its terms and conditions of service that it planned to continue collecting driving data from its customer's devices even after the customers canceled their OnStar subscriptions. Thankfully, at least one person read the terms when they were distributed and helped publicize the problems with this plan. Of course, this is hardly the first time critics have cried foul over a change to a terms of use agreement. (Although some of those disputes arose from confusion over the terms.) Yet, how often does an updated boilerplate agreement get members of the Senate riled up? The involvement of the Senators was no small thing. OnStar quickly relented and reversed its decision to track users that no longer subscribe to the service.

Another prominent example of resistance to terms of use is the recent dust-up over the use of an individual's real name online, called by some as the "nymwars." When Google+ was introduced this summer, the service's mandated use of a user's real name was criticized by pseudonymity advocates. In light of the blowback, Google+ revised its policy with respect to public display of names. Although Google's revision was only incremental, here, the resistance to the online agreement provoked a change from the offeror of terms, which is no small feat for standard-form agreements. The outcry also helped spark a movement that seeks to support and educate Internet users on the freedom to choose the name you use online.

Innovation is the other important factor in the summer of our discontent with terms of use. Most of our contractual relationships with websites are not formed in person or on paper. Instead, they are formed online. Thus, it's no surprise that new technologies hold the promise of altering the nature of user-website relationships. Several innovations have risen from the frustration of being unable to negotiate, keep track of, or even understand boilerplate online agreements.

The Electronic Frontier Foundation's TOSBack project is a brilliant and creative service that keeps tabs on every change made to the terms of service agreements for 56 important websites. Users of the service can easily see any changes made via a side-by-side, color-coded comparison of old and new versions of the agreement.

In a laudable attempt to inject the concept of negotiation into online contracting, Kevin Owocki created TOSAmend, a javascript bookmarklet that will modify the terms of service on the page, and pass the amended terms back to the site, where the web-service can either accept or reject them. The bookmarklet will change any highlighted terms in an online agreement to "I agree that I like ham sandwiches." The contractual validity of the tool is, of course, highly debatable, as is the likelihood of a response by the website. However, Owocki argues that the tool isn't supposed to perfectly execute binding negotiated contracts, but rather, it is supposed to be "an experiment, proof of concept, and...a conversation starter about the relationship between and rights of applications and their users." I think Owocki succeeds in those goals.

Although a unilateral declaration of ham-sandwich affection in place of the originally offered terms might not be binding upon websites, Owocki has demonstrated how technology might be able to make negotiation between users and websites possible. Along those lines, I argue in a recently published article that privacy controls and other interactive features should be considered part of the online agreement between websites and users.

Other technological solutions to the problems with terms of use are currently being explored with varying degrees of success. Zynga launched "PrivacyVille" - a game that teaches the player about Zynga's privacy practices. However, the game is largely an exploration of the service's boilerplate privacy policy, which is to say, not as much fun as Portal 2. Designers and researchers have attempted to make these policies easier to read and understand. Others have attempted to create tools that read the fine print for you. Ryan Calo has documented the many ways users might better understand boilerplate terms using innovative technology.

Creativity can also help with the terms of use dilemma. In one of the most clever (although crude & explicit) attempts to make terms of use bearable, the website Slacktory translated the entire Facebook Terms of Service in "Bro Speak." (Excerpt: "Seriously, though, we promise not to tell advertisers anything about you without your permission. See? When you get to know us, we’re not so bad."). The Small Print Project has created an "anti-EULA" as an attempt to dispel all non-negotiated agreements. (Excerpt: "you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements...").

Most of these innovations will not be adopted en masse. Yet even the failures represent resistance to the idea that these one-sided terms can unilaterally be imposed upon users and consumers. Like the development of better privacy controls, each failure brings us closer to achieving the often elusive goal of contract law--a "meeting of the minds." Even if boilerplate agreements persist, some of these innovations can better inform consumers than the simple slough of reading. As argued by Scott Peppet in a recent article, the availability of information forms the contours of what we consider "freedom of contract."

So it appears that technology users will not go gentle into that good night. The recent resistance and innovation in response to boilerplate agreements gives me optimism that online agreements can be more than one-sided tools for websites that often disadvantage users. Instead, perhaps online agreements can become a more positive force to keep both users and websites accountable by using technology conducive to interaction and negotiation.