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.
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.
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.