The most dangerous place on the Internet may well be inside that little button that says “I Agree.” The opportunity to bind oneself to a contract almost unconsciously abounds on the Internet, and the immediacy of the Web encourages click-through agreements that are almost never read and, if they are, impossible to understand.
The Electronic Frontier Foundation has provided a nice primer on on-line agreements in this document called “The Clicks the Bind: Ways Users “Agree to Online Terms of Service.” This is a long blog post or, in PDF, a three page document that should be read by everyone who uses the Internet. It helpfully distinguishes major types of online agreements and the relative likelihood that the different forms result in binding contracts. The document, by EFF’s Ed Bayley makes two programmatic assertions, both of which seem unarguable.
First, users should have to take an affirmative step to agree to terms of service. Put another way, terms of service that are there if you want to look at them but do not require even that thoughtless click should not be enforceable.
Second, Bayley asserts that terms of service from online service providers should be publicly available, not just presented as a pop-up as one enters the site for the first time. This would allow public discussion, which is important if people are to get past the habit of clicking without reflection on “I Accept” and come to some awareness of what they are agreeing to. Even when TOS are publicly available, they are not very easy to understand. Over a year ago, I printed out the TOS for Flickr just as an example and found that, at that time, they ran to over 12 pages of printed legelese. A repeat of that experiment shows that they are shorter now — “only” 10 pages. And to Flickr’s credit, they are available to anyone who wants to see in advance what they are getting into.
Bayley’s short essay is vital information, and the suggestions he makes seem like minimum steps that must be observed if courts are really going to hold individual users to the extensive and complex clauses found in these online terms of service.