[gorgoiler]

If a website knows I didn't really read a contract, can they claim I am bound by it?

I like to hope that the time-spent-reading is logged somewhere. Should it come up in court, Website.com would be required to disclose their logs which would show that I spent all of 1.35s reading their terms and conditions, most of which was spent scrolling.

Another puerile hack of mine is to sign a document with the name "I do not agree" and then press accept, and see if they agreed to let me use the service anyway.

[albertgoeswoof]

This is why they’re non enforceable in a real court. If I put the rights to your inheritance in a tos no judge is actually going to enforce that, because no one would reasonably sign that away for access to a website.

In reality only things which you would reasonably expect to be in a tos or privacy policy could be enforced, given 99% of users don’t read them, or understand them.

[nikanj]

Luckily they don't end up in real courts, because corporations go for mandatory arbitration nowadays.

[lcall]

IANAL, but it seems like I have read multiple times (incl. on HN discussions, maybe by a lawyer) that such agreements are in fact enforceable in real courts, at least in the USA. I read many years ago that in the 9th circuit one provision was struck down, that the user was bound by any changes posted online w/o notice, but I don't know the status of that anywhere now.

[vlovich123]

That sounds like how you wish the works worked vs how it does. Are you aware of a single court case where a judge dismissed it on those grounds?

[still_grokking]

I don't know about US law but at least in Germany it's really like pointed out.

There is a law governing TOS terms, and it says among other things that the TOS can't contain unexpected und unrelated terms.

So if you write for example into the TOS governing your website something like that every visitor owes you 1000 bucks that won't be enforceable.

The TOS related legislation is nothing new. It was there already in the analog age to prevent companies form tricking people into signing inappropriate contracts.

[alsetmusic]

I don’t think time spent would matter if someone took the deliberate action of clicking “Accept.” It’s like arguing that you didn’t read a contract before you signed. You still signed.

I’m not arguing in favor of TOS. I just don’t buy this.

The “I do not agree,” method reminds me of the tactics of “sovereign citizens.” They try to game things via highly specific language. People think they can loophole the system, but still get snared. SCs still go to jail.

[Wowfunhappy]

My take is that if one party to a contract does not have a reasonable expectation that the contract was read by the other party, the contract should be invalid.

People need to know what they’re signing. Imagine if a celebrity was signing a bunch of autographs for fans, and someone surreptitiously stuck a contract under their hand. We can agree that wouldn’t be valid, right?

[johannes1234321]

You deliberately chose not to read it. Why should you then be allowed to use the service AND claim not being bound by the terms?

(And yes, I think german law has the right principle there: clauses which are "unexpected" to an average consumer are invalid with consumers (different in B2B context), thus risk as consumer is low when blindly accepting)

[WindyLakeReturn]

>Why should you then be allowed to use the service AND claim not being bound by the terms?

It is like a child signing a contract. The child isn't bound to it, but the other party is. In this case, a corporation attempted to use an extreme disparity in knowledge and power to take advantage of a much weaker party. The disparity is larger than that between an average adult and an average child. As a consequence of this, it seems just as fair as in the case of contracts signed by children.

[bigwavedave]

>It's like a child signing a contract.

I don't know if I'd go that far. There's a whole class of laws around protecting children (two quick examples here in the US: age of consent; being tried as a minor vs tried as an adult) because the reality is that, in general, children are easier than adults to exploit. I mean, I convinced my nephew over the holiday that eating all his broccoli was like doing extra credit for Santa Claus, so it would cancel out the naughty action of eating one of the cookies he put out for Santa.

Saying that an adult agreeing to an unread ToS is unenforceable because we don't hold children accountable for signed contracts is plain nonsense.

[WindyLakeReturn]

Our current law makes a sharp divide between children and adults, but I think when you ignore the current law and instead look at the reasoning and the data we have, the comparison is pretty sound. The gap in knowledge and domain specific reasoning ability between the average child and adult is smaller than the gap between the average adult and a corporate team of lawyers. While I think that is already a sign the issue needs to be considered, we have corporations exploiting this knowledge gap to their advantage. There are also many countries have recognized this as a problem and have developed different attempted solutions, such as creating limits on what sort of contracts can be enforced.

So I do not see how the overall idea can be dismissed as nonsense.

[johannes1234321]

The Child is assumed to be unable to sign a legal contract.

You are able and chose not to. (Unless maybe you have a mental disability and then some caretaker)

[gorgoiler]

Serious contracts are witnessed or, better, notarised. These witnesses attest to the good faith involved in the signing ceremony.

Accept button clicking is not witnessed. Any contract so-signed should be good for all of $10 worth of dispute. No more.

[colejohnson66]

Assuming that became a law: I now need to get witnesses to me checking a box to use some software? What’s to stop me from just being my own witness under a fake name? I get the explosion of TOS contracts are stupid and need to be fixed, but we can’t just be crazy with fixing it.</rant>

[Wowfunhappy]

Why should you need to sign a TOS in order to use some consumer software? No, what would happen is TOS's would go away for everything but high-level professional software.

[colejohnson66]

Websites with accounts all have TOS because they need some legal recourse to boot you from their platform. The TOS lays out what you are allowed to do on the site (in addition to other things). That’s not changing no matter what you (or I) wish would happen without a massive change in how the legal system works in America.

[wittyreference]

Actually signing a contract doesn't begin and end at a signature. It requires a meeting of the minds, which the signature is meant to represent. A contract without a meeting of the minds - such as a contract presented in a context coercing the counterparty not to have an attorney parse it for them - is invalid, signature or no.

[clairity]

time spent doesn't work because it's only loosely correlated to the actual behavior they're trying to track, which is to read the tos. reading is not even perfectly correlated with understanding the tos, which is what we're really after.

this type of mistaken logic (loose correlations taken as tight ones) is everywhere. it's so common to look for secondary characteristics that can stand in for the desired one. and that's often how we get unintended consequences.

[rusk]

> You still signed

Prove it was me that signed. Prove it was me that clicked accept.

[aflag]

In order to access the service you need to register. The registration form would not allow you to register without accepting it. They only need to prove that you indeed access the service. That doesn't seem too hard to prove for most services out there, or at least the most popular ones.

[hansvm]

It's not really that cut and dry.

- They need to prove that "you" accessed the service, not somebody claiming to be you, somebody with the same full name and rough location as you, etc.

- Websites are often pretty bad at actually requiring ToS acceptance to register. The fact that you've accessed the service doesn't necessarily imply you've accepted anything.

- Even if registration is ironclad, accessing the service won't prove you agreed to any particular version of the ToS. The ever popular amend-at-will clauses never hold up in court, so you really do need to know which version was agreed to.

- ToS are often presented coercively. Maybe you've already signed a lease and moved in, but to actually pay your rent you need to accept an additional one or more third-party ToS because the landlord doesn't accept cash or checks. Maybe you've already paid for your vehicle registration, and after the cash is removed from your account you're presented with additional terms that need to be agreed to in order to receive your tags. Even if you've agreed to some specific contract, that kind of coercion can invalidate the additional terms, even though the party whose ToS you agreed to might not have known about the coercion.

[icedchai]

I think you missed the point. They can't prove it was him actually filling out the registration form, only someone from some IP address at a specific time. They can't prove the person who logs in using that registered username/password is the same one that accepted the TOS.

ToSes are mostly useless. They generally contain a line that indicates the terms can change at any time and you accept them by continuing to use the service.

[aflag]

I guess you'll need to convince the judge that there's reasonable doubt that you did not create the Facebook account that you use and that you were unaware of the ToS and not acting in bad faith. Not saying it's impossible, but it's not as difficult to enforce the ToS as it has been suggested. They are certainly not useless.

[icedchai]

They are useless in that reading them is pointless since they can be modified and/or enforced arbitrarily. If you violate the ToS, the site might kick you off. If you do something the site doesn't like, they can change the ToS and kick you off anyway.

[scotty79]

I often don't even read what's written on the button? Am I lefally accepting something even if I'm just cliking buttons randomly to make anything useful happen in your app?

[mmcconnell1618]

If you randomly clicked the accept button before you realized that is was asking you to agree to TOS, can you get back to the terms? I just realized that 99% of the sites that have TOS do not send me a copy of what I just agreed to or have anyway to get back to that screen. In most other circumstances, both sides of the agreement receive a signed copy for their records.

[salawat]

actually, this is a great detriment to every form of established contract law as we've trivialized what it means to establish a legal contract. Easy com, easy go.

A contract requires consideration, and a meeting of the minds. If you can't even request a change to the terms for your agreement, it isn't a spiritually valid contract. It's the difference between actually being prepared to negotiate, and making an ultimatum. ToS's are often presented in the forms of ultimatum's with no alternatives. That I do not accept.

[chki]

This will depend on your specific jurisdiction but just to give you an example of the law in Germany (which I expect to be similar in other places, especially in Europe where a EU-regulation was created on the basis of the German law):

Terms of services ("Allgemeine Geschäftsbedingungen" (AGB)) are pre-formulated clauses that one party introduces into the contract without giving the other party the possibility to object to or at least negotiate these clauses.

The ToS are part of your legal contract with the other party, regardless of whether you read them. One example of ToS could also be the house rules in your local gym, which possibly weren't even handed out to you but instead they are up on a wall somewhere near the front desk. The important thing is that you need to have the _possibility_ to read them (if you are blind they will need to make sure there is a workaround). Depending on the circumstances the obligation to make sure that you are aware of the ToS can be more strict.

The important caveat to using terms of services as a company is a strict content control. § 307-309 of the german civil law define certain things that you cannot possibly put in your ToS. And if a company still does it, a Court will not try to interpret the rule in a favorable way for them, they will strike it out completely. (no "geltungserhaltende Reduktion")

Examples of content control include that when buying something it is impossible to sign away (some of) your rights as a consumer for a faulty product. But there are also some "catch-all" clauses in there that will check whether parts of the ToS placed an unfair burden on you as a consumer.

ToS can also be void if they are unclearly written.

Edit: Signing with "I do not agree" is an interesting approach and sometimes these "hacks" can actually work in Court. That being said, it would probably not hold up. Pressing on "accept" is not somehow invalid just because you said so somewhere else.

Off topic but an interesting example of a similar hack is this case of a man changing a pre formulated contract with his bank which they send to him first and then signed it when he had send it back to him. https://www.themoscowtimes.com/2013/08/14/man-who-outwitted-...

[gorgoiler]

Thank you. This was fascinating.

Re: I do not agree: the only way my sophomoric hack might ever actually work would be if I argued that clearly the website’s didn’t bother reading my contract response — if they had they would have correctly interpreted my actions as meaning I didn’t agree to the terms.

But then I went ahead and used the site anyway. Someone who didn’t agree to the terms would never do such a thing. It is a very silly idea of mine.

[khuzudin]

This article is about a plug-in that recognizes TOS agreements and summarizes them for you. I've often wondered if it's feasible to create a plug-in that recognizes TOS agreements and clicks the Accept button for you.

It should also make a record showing that you never saw the agreement and did not click the button. Maybe it could aggregate these records to show that for a given website there are thousands of users who have never seen the TOS.

Given that most people seem to think these click-through agreements are already pretty weak from a legal standpoint, I wonder how much more it would take to make them completely worthless.

[vntok]

For those reading, be aware that while signing "I do not agree" is borderline fraudulent, at least it's not clear user impersonation ie identity theft.

There are people who do similar things but sign "Daffy Duck" or even "Barack Obama". Someday they'll be in for a surprise visit.

[wolco5]

Not true at all. No one is coming for a visit ever.

You could be known as Daffy Duck or Obama or call yourself that. There is no legal requirement to use a legal name.

What sites do if a legal name is required is to require a credit card and get the info from there.

Clicking,I do not agree is not borderline fraud. Turning off javascript and not getting a tos prompt is not fraud either.

[aflag]

I think disabling javascript could be considered hacking the software.

[hansvm]

Intent might matter a little. I wouldn't be surprised if disabling JS for the purpose of bypassing an access control falls afoul of the CFAA but intentionally browsing the web without JS (e.g. via lynx) does not. If that were the case, they'd have to prove that you intentionally circumvented their access controls.

[gorgoiler]

Moreover: signing as “do not agree” and then using the service anyway is about as clear-cut as an abuse-of-service can be.

Aka “wire fraud”, if you’re a DA.

[13415]

The best thing to do is to send them by snail mail a printed copy of their ToS with the changes highlighted that you'd like to suggest, accompanied by a friendly letter stating that they are free to send you back their suggestions for further negotiation and that no further action on their behalf is needed if they accept the suggested changes.

[Engineering-MD]

But would this hold up in a court?

[mkl95]

It should be fairly easy to do this with something like Hotjar. Although I'm not sure if it is legally feasible to do it without the user's consent, especially in Europe.

[tmikaeld]

You'd just have to agree to the agreement to be tracked first.

Though, GDPR stipulates that if it's a legal requirement for the service to work (which is the case) then it's not required to log visitor approval.

[zxienin]

The way website.com will start dealing with that, is to block end users to spend legally minimum amount of time on ToS.

[Enginerrrd]

That won't work. The real answer is to make it 100 words or less.

[Wowfunhappy]

Then they will lose users, though.

[zxienin]

Would’ve been my thought too. Yet look at what happened to EU GDPR cookie rollouts.

[Wowfunhappy]

Those only take a few seconds. We're talking about at minimum a solid five minute blockade—and I would posit it really needs to be a couple of hours or more, given the length of these agreements.

If a TOS is important enough to a company that they're willing to impose a two hour waiting period on customers, I'd say that's their prerogative. It would likely be effective in getting many users to read the agreements.

[hundchenkatze]

Here's a case between Uber and a blind person [0].

TLDR:

- Someone is suing Uber for discrimination because drivers didn't allow the person's guide dog in the car.

- Uber's terms state users can't sue Uber and must go through Uber's arbitration process

- Uber's terms were presented in the "By continuing you agree to these terms" fashion

- Person claimed they never agreed to arbitration and that they should be allowed to sue Uber, and a state court agreed

> But the broader impact of the ruling is to put companies on notice that they can't bind users to restrictive terms merely by linking to those terms somewhere in a site or app's registration process. In order to create a legally binding contract, a tech company has actually put the terms in front of the user and get them to affirmatively agree to them.

[0] https://arstechnica.com/tech-policy/2021/01/court-says-uber-...

[m463]

California allows you to opt-out of binding arbitration at the time of signing or for a period after signing.

[colejohnson66]

That’s actually part of the Federal Arbitration Act; It’s not specific to California. However, California’s labor laws do have some restrictions on arbitration in the workplace.

[stunt]

Yes, as long as they make it a required step. It's your fault if you choose to not read it.

[lcall]

Too bad the parent was down-voted. IANAL but I think from other reading that it is correct at least in the USA. I think if one does not read & agree, it is dishonest to say you did.

[nerdponx]

I am curious if there is any legal doctrine on this in any part of the world.

[13415]

In most EU countries ToS are pretty much void anyway because they tend to contain frivolous or illegal clauses. For example, a ToS is void in the EU that limits the consumer's rights for legal action in any way.

Here is a list of unfair contract terms that will likely cause an EULA or ToS to have no legal binding at all:

https://europa.eu/youreurope/citizens/consumers/unfair-treat...

[_v7gu]

In Turkey the precedent is that not only ToS'es and any kind of pre-written contracts have to be fair by law (ie punitive measures for the customer while there is none for the firm will simply be thrown out by the court) and not include any unexpected conditions. Some time ago, the higher court ruled in favor of a guy who simply claimed he didn't read the long contract and the unexpected conditions shouldn't have been enforceable.

Also all consumer disputes below a certain amount have to be resolved by consumer referees, so no binding arbitration clauses here either.

[wolco5]

You could skip steps on some systems, put in null values, click yes get the next link and remove approval.

There is no legal requirement you agree to use the service. The system may prevent access but that's not a legal requirement.