> 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.
>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
> 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.
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.
We could have a sort of “Consumer Protection Agency” that broadly enforces these norms when a company feels the need to avenge themselves on someone. A sort of regulatory agency, if you will.
But the critical question is whether it would be possible to create, staff, operate, publicize, and oversee such an "agency", at a cost that is sufficiently lower than a tiny fraction of a heavy explodey thing.
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.
Is it your contention that the rest of the world has solved the case of terms of service? That the alleged solution is restricting possible clauses to those OP enumerated? Or that USA does not have any limits or regulations around fairness in contract law? I'm fascinated.
> This is one of these cases like gun crime where:
This is going off topic but I don't think that's going to go anywhere interesting, so why not...
> USA: There is no solution!
> Rest of world: slightly embarrassed look
Well presumably not the 20 odd countries with higher gun homicide rate than USA, but sure. One that did used to be counted among those ranks was El Salvador. El Salvador used to top the list just a decade ago and it was not even close! Today it's around par with New Zealand. Amazing! That is perhaps the most recent and dramatic case of a solution to gun crime being found. You are right that rest of the world is indeed embarrassed about that for some reason. You would have thought everybody would be overjoyed, praising it, looking to emulate it, all the self-proclaimed "experts" admitting they were wrong... but no. It's strange, everybody just has this slightly embarrassed look about it.
On the other hand, if the goal is to restrict the peoples' access to firearms, the solution to that in most other countries was not constitutional violations by their governments of course. So presumably the same solution for that in USA would be to amend the constitution so that such firearms restrictions could be implemented. Also very obvious. I strangely have not heard of any serious efforts by mainstream political parties toward this solution though. I can see there would be second hand embarrassment for them for not seeing the obvious solution to what they want.
What's strange is that I have never heard a single "human rights expert", humanitarian lawyer, government, NGO, bureaucrat, or global body say a single word about the flagrant and far more wide spread abuses of the human rights of people who should have the basic right to live unmolested by criminals and under a government system that provides reasonable justice. Not a single one. Turns out that none of them are actually concerned with human rights abuses in the slightest bit, they are concerned only with how human rights abuses can be leveraged for their own gain.
>What's strange is that I have never heard a single "human rights expert", humanitarian lawyer, government, NGO, bureaucrat, or global body say a single word about the flagrant and far more wide spread abuses of the human rights of people who should have the basic right to live unmolested by criminals and under a government system that provides reasonable justice. Not a single one.
Because those "humanitarian" lawyers, bureaucrats and NGO activists, don't live in high crime areas they advocate for, they instead live in some of the nicest, cleanest, greenest, homogenous, quietest neighbourhoods, suburbs or gated communities that (taxpayer) money can buy.
They virtue signal for open borders, second chances and human rights for criminals, ONLY as long is it's not negatively impacting their own backyard, but try to enter their gated communities without their consent and you see them suddenly believing in borders and law enforcement by force. Try building a DMV, unemployment office, or refugee housing center in their neighborhood and see how they turn into the most harcore NIMBYs ever. They want to write cheques that only other people have to cash. "Rules for thee but not for me." Champagne socialists.
During friendly discussions and arguments my lawyer friends like to make the same kind of thought terminating cliche filed arguments that you just replied to.
I think that your response really hit the nail on the head and it raises the question my mind of how do we most effectively eliminate these kinds of malformed American-system brained thoughts from disrupting real and possibly even productive conversations about these kinds of topics?
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.
US contract law has the concept of unconscionability already. You're not listening to me, my question is why should those things be allowed but nothing else? "Because a severe power imbalance allows for abuse, and governments should prohibit such abuse." does not address my question because it does not explain why the would-be permitted things are not subject to severe power imbalance or abuse of a type that governments should prohibit.
The GP alluded to "a handful of terms everyone agrees are reasonable". Regardless of what those are, their hypothetical definition makes them implicitly reasonable. You can circularly reason that these hypothetical univerally-reasonable terms are univerally-reasonable because it is impossible to abuse them with a severe power imbalance.
Re-reading your post, you appear to be asking if the GP would ban all contract terms that aren't universally-reasonable. I don't think that's what they were saying, and it's not what I'm saying.
The purpose of unconscionability is clear, the question is what findings will trigger it? There is a spectrum of opinion on that. My position would be that, whenever it can be demonstrated by one court that a powerful entity did commit abuse via unconscionable contract terms, it should be noted by other courts and applied equally to other similar entities.
The US courts already do this, but the problem is they tend to take the narrowest possible application, and that's ultimately because they're deferential to the US Congress. They don't want to be making law, they only want to interpret the law they have. They want Congress to make law... but Congress doesn't seem very good at that. Most other country's systems are Roman law systems rather than Common law, which in practise means they tend to update laws and regulations more often, and the courts get their clarifications via updated laws rather than build up centuries of precendent.
Yes they did not just allude to them, they gave several concrete examples. And were then were completely unable to substantiate their arguments or provide any reasoning for their position.
"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. "
It's funny. When I have a topic I am interested and passionate about, and want to find an improvement or solution, I welcome the chance to have my ideas questioned. To explain them, to in turn question the alternatives others put forward.
In their frothing haste to put down my heresy here https://news.ycombinator.com/item?id=47307056, not one single commenter took just a second to understand what I actually wrote. Most of the responses aren't even coherent on their own, much less address my questions. I did not advocate for the status quo, I did not even assert OP was wrong. I invited them to provide some reasoning for their proposal. Quite troubling, even cultish behavior.
I try not to assume malice (i.e. Hanlon's Razor) when it happens to me. Unfortunately the mob rule seen on other user-curated sites seems to be infectious.
I try to gently call it out here when I see it, though, because HN is the one user-curated site where I still feel that people come to get to 'truths' versus 'agendas'. I want it to stay that way!
> 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.
> This is not a magic list of 3 things that I think is complete.
Okay, but you do think it should be an extremely limited scope of things along those lines that parties may form contractual agreements around. It's just such a radical idea that I was hoping to hear some interesting reasoning behind it. If it's just things seem like they might be more pleasant if we did that, then sure thing that's great, certainly would be nice if things were more pleasant we can agree on that.
Judges which apply that sort of reasoning really ought to think about how it applies to a hospital visit in which they were incapacitated and received a bunch of treatment. Would it be legally appropriate to slip a term about binding arbitration, or a hold harmless, or maybe a release allowing photos of their visit to be used for advertising?
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.
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".
> 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
> 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.
> 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.
Sufficient is not a "subset of necessary". "Sufficient" in this context means a reason that voiding terms is justified. There being a power imbalance does not mean that the terms should be voided. If the more powerful party stipulates "You may not continue to use the service if you use it to commit a crime", then nobody would argue that the term must be voided just because the more powerful party stipulated it. That is why when you say "the state's adjudicator decides they are exactly equal in "power" and permits it?" this is neither a reductio ad absurdum nor logically valid. Nobody said or implied that any part of the process should be "void the terms if the parties are not equally powerful". You just made that up.
What they did imply was "if the terms are otherwise not justified, and the parties are not equally powerful, you may have to void the terms". In other words, it would be necessary to void the terms.
> What is ridiculous is that you're pretending not to recognize a reductio ad absurdum
It isn't a reductio ad absurdum, because you took the argument "all TOS terms except these 3 categories should be unenforceable" to the logical extreme of "there should be a state-appointed adjudicator who reviews every contract". I am simply advocating for a particular law that should be published.
> OP made a claim about what terms were "justified" and I'm trying to find out the basis for them.
The background reasoning is that service providers should not be able to dictate your behaviour unless it is behaviour that directly affects the service - either because you're using the service in an unethical way, or you're making the service unreasonably hard to provide, or whatever. It happens to be the case I can only think of a handful of terms that have this property. Maybe there are more.
> It isn't, you're just unable to address it.
I think we agree, I am unable to address such titanic arguments as "many people are subservient". I will meditate on these words.
No sufficient definitely is a subset in the context I used it. Go back and re-read and try again. Or actually you're getting a bit heated at the suggestion you might be a wee bit subservient to your government betters. Might be an idea to have a nap instead.
> 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.
> The government is not my guardian and does not do my thinking for me.
This is a quaintly (US) American perspective.
The government is and does literally both of those things, and the arguments in these threads are about the fine details of the manner in which they should continue doing so in the future.
> 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
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)
Why needlessly complicate this with so many obtuse hypotheticals when you can just look at other countries that have objectively lower crime rates, greater citizen happiness levels, lower wealth inequality and see how the solved this problem?
Personally I have no issue with people mutually agreeing to any terms (within reason) as long as it's an actual agreement and not just some boilerplate legalese that nobody really expects you to even read, let alone carefully study and give informed consent to.
"Use implies agreement" should not be allowed. Probably even "check the box to agree" should not be allowed. If a company wants to force all their customers to agree to something in a legally binding way beyond the basic standard of what the law requires (things like don't violate our copyright, don't DoS us, etc) they should have to mail a contract and wait for the customer to sign it with ink and send it back. (Well, maybe not literally that, but at the very least some similarly weighty process which makes it clear to all parties that this is something they need to read carefully and take seriously.)
It's nonsense to on the one hand treat a ToS like "no big deal" and expect everyone to passively agree to it with no friction or push-back while at the same time treating it like a contract signed in blood as soon as lawyers get involved.
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.
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.