Terms of Service - Agree or ... Okay We Have to Agree

We've all done it.  But we can't help ourselves... we have no choice.  I'm talking about agreeing to terms of service (TOS). We create accounts on websites or install software on our computers and in the endless clicks we make to create an account or get the software installed, there they are... the "terms of service."

Do we ever read them?  Of course not.  And for many reasons.  1) They are too long.  2) They contain too much legalese.  3) It makes absolutely no difference whether we disagree with them or not.

Many TOS have disclaimers and information about warranty... or most of the time that there is no warranty and if the software is garbage and destroys your system, it still is not the software maker's fault.  Some provisions include information about where and how you can sue the developer or maybe they force you into arbitration and you can never sue.  Check out Section 16 of Facebook's TOS.  You must sue in Santa Clara County, California and there is absolutely no warranty for anything.  Going further, we find that if Facebook is sued because of something a user does, the TOS require the user to indemnify Facebook.  Does the average user have the financial ability to indemnify Facebook?  Not likely.

But really, the point is that if you want to install the software, you have to agree to their one-sided TOS.  If you want a Facebook account, you must click agree.  If you want to install Angry Birds, you must click agree.  The only choice is to agree or not install the software. Most TOS are generally the same so even if you try an alternative product, you end up in the same situation.

What really gets me is even if you bought software and did not agree to the TOS when you try to install the software, what choice do you have?  Most places will not allow a refund on open software (due to piracy) so now you have an open box of software which you cannot return because you disagreed with the TOS but you had no idea what was in the TOS until you opened the box!

More recently though, courts are at least starting to take notice that TOS cannot be forced onto consumers without the user affirmatively clicking on something to show their acceptance.  As explained fully in this post at Eric Goldman's site, Zappos (an online show retailer - personally I love Zappos) had their terms thrown out by district court judge in Nevada due to the fact that users were not required to affirmatively accept the terms by clicking an "I Agree" button.  The reasoning is pretty sound.

It takes to sides to enter into a contract; one side to offer and one side accept.  Well if no one accepts, then there is no contract between the two.  Because no one clicked "I Agree," the TOS did not form a contract between Zappos and the user so the users cannot be required to live up to the terms in the TOS.

The result in the case is a good one - but in reality it is going to make little difference.  If you want to shop at Zappos, you are now going to have to agree to those exact terms.

Western City Magazine - Electronic Media and the Public Records Act

The cover story in Western City Magazine, the monthly publication of the League of California Cities, features an article written by the Public Records Act Committee, which I am a member of.

The article, "Local Agency Electronic Media Use and California Public Records Law," is a little technical.  However, that can happen when we deal with electronic media because often people need the fundamentals first, and this article assumes the reader has those fundamentals already.   Unfortunately, laws are often behind technology and this is one area where the Records Act struggles, but is catching up to technology realities.

The Committee has some great members and I am proud to be a part of it.

The electronic version of the article is available here if you do not have access to the print copy.  Click here for the tablet version.

Please feel free to email any questions about the article.

High Speed Rail - Now $30 Billion Cheaper

As reported by the Fresno Bee and others, the High Speed Rail Authority has issued a new business plan.  The highlight of the plan on this highly contested plan is that the Authority has slashed $30 billion off the price tag from just four months ago.

It will be interesting to see where this goes as Prop. 1A lawsuits continue, and whether the people believe the Authority has make legitimate revisions or is setting up the people for another "bait and switch" as previously alleged when the November business plan came out at double the original price.

Tulare County Supervisors Brown Act Suit Appealed

As the Visalia Times Delta is reporting this morning, the suit against the Tulare County Board of Supervisors has been appealed to the Supreme Court.

The article is not clear on several important points, so I will clarify those.

First, what has occurred is that the newspapers in question have filed a petition for review.  They are just asking the California Supreme Court to review the issue at this point.  The Court will have to decide whether they actually want to hear the case.  Statistically, they will decline to do so.

Second, the case was already heard at the Fifth District Court of Appeal where the newspapers lost, making their odds of success slim, even if the Supreme Court agreed to hear the case.

Commentary - Stop Online Piracy Act (SPOA)

This is the kind of legislation that results when Hollywood gets to write laws, puts them in the hands of a group of knowledgeable politicians, then lobbies those politicians to pass the law.

SOPA is a terribly written law, worse than the Digital Millennium Copyright Act, and any reader should know my feelings on the DMCA.

First, any law that has to start out with "Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution" - does exactly that.

Second, the entertainment industry wants the federal government and other companies like Google to be their copyright police all over the world.  With all the issues facing the country, taxpayer money is effectively spent elsewhere, especially when media companies consistently cry about piracy, but continue to receive record profits. I have nothing against media recording profits - just do not cry about a problem that does not exist when there are real problems to be solved.  SOPA basically says the government, who just botched a domain seizure that I previously wrote about here and here, can seize a domain upon application to the court if piracy is suspected.  Pages 10-13 at the link below to the bill text describe the enforcement provisions.

Finally, this Act will stop nothing. Just visit godaddy.com and see how long it will take a pirate to get a new domain if the old one is blocked. [spoiler alert - you can get a ".info" domain for $1.99]

The Technical Aspect

The government can make a site disappear by requiring search engines and internet service providers to eliminate the site from DNS records.  DNS records are what computers use to point to each other - when you type in www.google.com, the DNS record at your ISP (such as Comcast), takes that name, looks in a table for that name and its associated IP address, and then requests the web page from that IP address.  If the search engines and ISP's remove the name of the site they do not want you to see from the DNS record, the site effectively cannot be located since all DNS records are supposed to be the same around world.

It's not just teenage kids and nerds in their basements opposing SOPA.  Companies against it include eBay, Go Daddy, Facebook, Google, and Wikipedia. I hope someday we will have politicians who will understand these technical issues. I do not get my hopes up though.

The bill text of SOPA can be found here.

Article from techdirt on how they believe (I agree) how SOPA will be abused.

UPDATE:  Since the President has come out against the laws in their current form, opposition has grown.  Also, Wikipedia and others are shutting down tomorrow to protest the two laws.  Mke sure your kids get their homework done early.

Immigration Agents Using Social Media to Check for Fraud

A very interesting article in California Lawyer magazine this month regarding how immigration agents are using social media to investigate fraud in applications.

Social media is a great investigative tool, I never realized that it could be used in this way.  But this is a particularly interesting topic given the state we live in.

It makes me wonder what other government agencies are using social media, and for what purposes.  But of course, there is nothing wrong with social engineering; especially when the information is volunteered.

California Lawyer

Governor Brown Decides Privacy Worth $38,900

Governor Brown rejected a legislative challenge to the California Supreme Court's decision earlier this year in People v. Diaz which I wrote about here.

The Governor said the courts are better to decide Fourth Amendment questions, but as you can read in my earlier post, the result in Diaz was completely absurd and NOT necessarily the best outcome.  Cal. Supreme acknowledged it may not have been the best outcome, but under current U.S. Supreme Court precedent, it had no choice.  So the Governor suggesting that the courts are better to decide these questions does not quite hold water here.

The article at wired.com suggests that this was merely a decision to appease Brown contributors.  If true, that would mean the Governor just gave away the privacy of millions of Californians for $38,900.

If you do not already password protect your phone, you might want to start.