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23 Jan 2021

The New York Times Editorial Board

Commentary: It’s time to fix online terms of service contracts

“What Happens When You Click ‘Agree’?”, 23 Jan 2021

...[M]ost people have no idea what is signed away when they click “agree” to binding terms of service contracts — again and again on phones, laptops, tablets, watches, e-readers and televisions. Agreeing often means allowing personal data to be resold or waiving the right to sue or join a class-action lawsuit.

Violations of such terms and conditions agreements recently gave Amazon the power to block the right-leaning social media site Parler and for Twitter to ban Donald Trump and to sweep tens of thousands of QAnon pages into the digital ether. Time will tell the degree to which tech companies will police their own sites in the coming months and years. But if they do, terms and conditions will be a pretext they use to do so.

The potential for abuse on the one hand and restricting speech on the other hand has spurred calls for major reforms to the tech sector from politicians of both parties... At its core, the arrangement is unbalanced, putting the burden on consumers to read through voluminous, nonnegotiable documents, written to benefit corporations in exchange for access to their services...

“This is one of the tools used by corporations to assert themselves over their customers and whittle away their rights,” said Nancy Kim, a California Western School of Law professor who studies online contracts. “With their constant updates to terms and conditions, it amounts to a massive bait-and-switch.”

Technology companies will assert that none of their policies are mandatory — if customers don’t want to accept them, they can close their accounts or decline to sign up in the first place. But many companies have made their services so essential that opting out is not a feasible option, and customers are often presented with new terms at the moment they most need to use a service... Because courts have largely sided with the tech industry on terms of service rules, Congress needs to act.