Terms of Service not legally binding?
Dear colleagues, With apologies for spamming the lists - on behalf of both a student project and our development of further refinements in internet research ethics I'd like to ask the following. I've heard somewhere recently that a U.S. court has ruled that Terms of Service are not necessarily legally binding. If anyone can forward more exact details of the ruling, I'd be very grateful indeed. Why? There is considerable discussion regarding the creation of fake profiles as part of research into social media, algorithms, etc. I have the impression that this has become common practice, and this ruling may give some direct and/or indirect support to arguments for such a practice. (With important caveats, generally a good thing in my view, FWIW.) At the same time, however, Norwegian law and thereby research ethics, as a start, tend to be considerably more strict than the U.S. (and even, in some instances, the E.U.). I would like to figure out the differences and resulting nuances in the implications for research ethics - both for the sake of the general example and for an MA student project that I have the pleasure of supervising. Many thanks in advance for any tips and suggestions. All best, - charles ess -- Professor in Media Studies Department of Media and Communication University of Oslo <http://www.hf.uio.no/imk/english/people/aca/charlees/index.html> Postboks 1093 Blindern 0317 Oslo, Norway c.m.ess@media.uio.no
Hi Charles, You are probably referring to Christian Sandvig et al.'s case ( https://www.aclu.org/news/judge-allows-aclu-case-challenging-law-preventing-... ) IANAL, but as far as I can tell the recent ruling allowed the case to go forward but it hasn't been decided yet. Best, Jeremy On Sat, Apr 7, 2018 at 1:51 AM, Charles M. Ess <c.m.ess@media.uio.no> wrote:
Dear colleagues,
With apologies for spamming the lists - on behalf of both a student project and our development of further refinements in internet research ethics I'd like to ask the following.
I've heard somewhere recently that a U.S. court has ruled that Terms of Service are not necessarily legally binding. If anyone can forward more exact details of the ruling, I'd be very grateful indeed.
Why? There is considerable discussion regarding the creation of fake profiles as part of research into social media, algorithms, etc. I have the impression that this has become common practice, and this ruling may give some direct and/or indirect support to arguments for such a practice. (With important caveats, generally a good thing in my view, FWIW.)
At the same time, however, Norwegian law and thereby research ethics, as a start, tend to be considerably more strict than the U.S. (and even, in some instances, the E.U.). I would like to figure out the differences and resulting nuances in the implications for research ethics - both for the sake of the general example and for an MA student project that I have the pleasure of supervising.
Many thanks in advance for any tips and suggestions.
All best, - charles ess
-- Professor in Media Studies Department of Media and Communication University of Oslo <http://www.hf.uio.no/imk/english/people/aca/charlees/index.html>
Postboks 1093 Blindern 0317 Oslo, Norway c.m.ess@media.uio.no _______________________________________________ The Air-L@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org
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Yes, this is correct. The case hasn’t been decided yet, but survived a motion to dismiss, and is moving forward mostly on first amendment grounds. I also just want to point out that this case is specifically about the application of the CFAA to TOS violations. If they are successful, it might mean that such an action wouldn’t be criminal under the CFAA, but that doesn’t mean that contract law couldn’t apply. (There’s also a chance that the case could be pretty narrowly construed and might not apply broadly to all kinds of research. :-\ ) Casey
On Apr 7, 2018, at 10:31 AM, Jeremy Foote <jdfoote1@gmail.com> wrote:
Hi Charles,
You are probably referring to Christian Sandvig et al.'s case ( https://www.aclu.org/news/judge-allows-aclu-case-challenging-law-preventing-... )
IANAL, but as far as I can tell the recent ruling allowed the case to go forward but it hasn't been decided yet.
Best, Jeremy
On Sat, Apr 7, 2018 at 1:51 AM, Charles M. Ess <c.m.ess@media.uio.no> wrote:
Dear colleagues,
With apologies for spamming the lists - on behalf of both a student project and our development of further refinements in internet research ethics I'd like to ask the following.
I've heard somewhere recently that a U.S. court has ruled that Terms of Service are not necessarily legally binding. If anyone can forward more exact details of the ruling, I'd be very grateful indeed.
Why? There is considerable discussion regarding the creation of fake profiles as part of research into social media, algorithms, etc. I have the impression that this has become common practice, and this ruling may give some direct and/or indirect support to arguments for such a practice. (With important caveats, generally a good thing in my view, FWIW.)
At the same time, however, Norwegian law and thereby research ethics, as a start, tend to be considerably more strict than the U.S. (and even, in some instances, the E.U.). I would like to figure out the differences and resulting nuances in the implications for research ethics - both for the sake of the general example and for an MA student project that I have the pleasure of supervising.
Many thanks in advance for any tips and suggestions.
All best, - charles ess
-- Professor in Media Studies Department of Media and Communication University of Oslo <http://www.hf.uio.no/imk/english/people/aca/charlees/index.html>
Postboks 1093 Blindern 0317 Oslo, Norway c.m.ess@media.uio.no _______________________________________________ The Air-L@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org
Join the Association of Internet Researchers: http://www.aoir.org/
_______________________________________________ The Air-L@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org
Join the Association of Internet Researchers: http://www.aoir.org/
Charles, Your questions often teach me, because I’m interested enough to go sleuthing. So I assume you’re aware of most of these resources; I include them as breadcrumbs for the interested. The EFF white paper (https://www.eff.org/wp/clicks-bind-ways-users-agree-online-terms-service) hasn’t been updated in almost a decade, though they have a nice summary of “unconscionability” in online contacts as of 2011 (https://ilt.eff.org/index.php/Contracts:_Click_Wrap_Licenses). The American Bar Association has a paper from 2015 (https://www.americanbar.org/publications/communications_lawyer/2015/january/...) going into some nice detail of browsewrap vs clickwrap, citing court decisions. Key cases are reviewed here as late as 2016: https://www.google.com/amp/s/termsfeed.com/blog/3-key-legal-cases-on-click-w... This 2016 blog post is the closest I’ve found to an answer to your question: https://blog.ericgoldman.org/archives/2016/08/anarchy-has-ensued-in-courts-h... Best of luck! Steve Lovaas Sent from my iPhone On Apr 7, 2018, at 12:52 AM, Charles M. Ess <c.m.ess@media.uio.no<mailto:c.m.ess@media.uio.no>> wrote: Dear colleagues, With apologies for spamming the lists - on behalf of both a student project and our development of further refinements in internet research ethics I'd like to ask the following. I've heard somewhere recently that a U.S. court has ruled that Terms of Service are not necessarily legally binding. If anyone can forward more exact details of the ruling, I'd be very grateful indeed. Why? There is considerable discussion regarding the creation of fake profiles as part of research into social media, algorithms, etc. I have the impression that this has become common practice, and this ruling may give some direct and/or indirect support to arguments for such a practice. (With important caveats, generally a good thing in my view, FWIW.) At the same time, however, Norwegian law and thereby research ethics, as a start, tend to be considerably more strict than the U.S. (and even, in some instances, the E.U.). I would like to figure out the differences and resulting nuances in the implications for research ethics - both for the sake of the general example and for an MA student project that I have the pleasure of supervising. Many thanks in advance for any tips and suggestions. All best, - charles ess -- Professor in Media Studies Department of Media and Communication University of Oslo <http://www.hf.uio.no/imk/english/people/aca/charlees/index.html> Postboks 1093 Blindern 0317 Oslo, Norway c.m.ess@media.uio.no<mailto:c.m.ess@media.uio.no> _______________________________________________ The Air-L@listserv.aoir.org<mailto:Air-L@listserv.aoir.org> mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org Join the Association of Internet Researchers: http://www.aoir.org/
Of interest: Justice Roberts admitting he doesn't read ToS: https://www.techdirt.com/articles/20101021/02145811519/supreme-court-chief-j... On Sat, Apr 7, 2018 at 8:57 AM, Lovaas,Steven <Steven.Lovaas@colostate.edu> wrote:
Charles,
Your questions often teach me, because I’m interested enough to go sleuthing. So I assume you’re aware of most of these resources; I include them as breadcrumbs for the interested.
The EFF white paper (https://www.eff.org/wp/clicks-bind-ways-users-agree- online-terms-service) hasn’t been updated in almost a decade, though they have a nice summary of “unconscionability” in online contacts as of 2011 ( https://ilt.eff.org/index.php/Contracts:_Click_Wrap_Licenses). The American Bar Association has a paper from 2015 ( https://www.americanbar.org/publications/communications_ lawyer/2015/january/click_here.html) going into some nice detail of browsewrap vs clickwrap, citing court decisions. Key cases are reviewed here as late as 2016: https://www.google.com/amp/s/ termsfeed.com/blog/3-key-legal-cases-on-click-wrap/amp/
This 2016 blog post is the closest I’ve found to an answer to your question: https://blog.ericgoldman.org/archives/2016/08/anarchy-has- ensued-in-courts-handling-of-online-contract-formation-round-up-post.htm
Best of luck! Steve Lovaas
Sent from my iPhone
On Apr 7, 2018, at 12:52 AM, Charles M. Ess <c.m.ess@media.uio.no<mailto:c .m.ess@media.uio.no>> wrote:
Dear colleagues,
With apologies for spamming the lists - on behalf of both a student project and our development of further refinements in internet research ethics I'd like to ask the following.
I've heard somewhere recently that a U.S. court has ruled that Terms of Service are not necessarily legally binding. If anyone can forward more exact details of the ruling, I'd be very grateful indeed.
Why? There is considerable discussion regarding the creation of fake profiles as part of research into social media, algorithms, etc. I have the impression that this has become common practice, and this ruling may give some direct and/or indirect support to arguments for such a practice. (With important caveats, generally a good thing in my view, FWIW.)
At the same time, however, Norwegian law and thereby research ethics, as a start, tend to be considerably more strict than the U.S. (and even, in some instances, the E.U.). I would like to figure out the differences and resulting nuances in the implications for research ethics - both for the sake of the general example and for an MA student project that I have the pleasure of supervising.
Many thanks in advance for any tips and suggestions.
All best, - charles ess
-- Professor in Media Studies Department of Media and Communication University of Oslo <http://www.hf.uio.no/imk/english/people/aca/charlees/index.html>
Postboks 1093 Blindern 0317 Oslo, Norway c.m.ess@media.uio.no<mailto:c.m.ess@media.uio.no> _______________________________________________ The Air-L@listserv.aoir.org<mailto:Air-L@listserv.aoir.org> mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/ listinfo.cgi/air-l-aoir.org
Join the Association of Internet Researchers: http://www.aoir.org/ _______________________________________________ The Air-L@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/ listinfo.cgi/air-l-aoir.org
Join the Association of Internet Researchers: http://www.aoir.org/
-- Rian Wanstreet PhD Student, Teaching Assistant Department of Communication, University of Washington Office: Communications Bldg., 340-T
Hi Charles -- I hesitate to generalize here, because there are literally treatises on this topic. But I think the best summary might be that there are opinions that hold that some terms of service are not necessarily enforceable in some situations. That of course means that the converse is also true, which is that most cases hold that most terms of service are enforceable in most situations. Again, at the risk of oversimplifying, one might characterize the decisions by saying that terms of service seem least likely to be enforceable where they attempt to waive or evade some type of protection that consumers are guaranteed under consumer protection laws. This seems more likely to be the case in the EU, where the Consumer Rights Directive and other measures are taken far more seriously than the fairly anemic consumer protections typically available in the US. California consumer protection is a little more muscular than most states, but even here I would generally assume that a ToS is likely to be enforced in the majority of instances. I am not sure that helps much with the question of fake profiles, unless there is some provision in Norway that guarantees a consumer right of anonymity/pseudonymity that would trump contractual provisions to the contrary -- I know almost nothing about Norwegian law, and am not even very good at keeping track of the pieces of EU regulation that Norway has agreed to abide by. As I think someone in a previous response indicated, what you may have heard about is the CFAA decision that is summarized by EFF here https://www.eff.org/deeplinks/2018/01/ninth-circuit-doubles-down-violating-w... But I don't think that has much to do with your question, which seems to be about contractual obligation rather than criminal liability. Cheers, DLB On 2018-04-06 23:51, Charles M. Ess wrote:
Dear colleagues,
With apologies for spamming the lists - on behalf of both a student project and our development of further refinements in internet research ethics I'd like to ask the following.
I've heard somewhere recently that a U.S. court has ruled that Terms of Service are not necessarily legally binding. If anyone can forward more exact details of the ruling, I'd be very grateful indeed.
Why? There is considerable discussion regarding the creation of fake profiles as part of research into social media, algorithms, etc. I have the impression that this has become common practice, and this ruling may give some direct and/or indirect support to arguments for such a practice. (With important caveats, generally a good thing in my view, FWIW.)
At the same time, however, Norwegian law and thereby research ethics, as a start, tend to be considerably more strict than the U.S. (and even, in some instances, the E.U.). I would like to figure out the differences and resulting nuances in the implications for research ethics - both for the sake of the general example and for an MA student project that I have the pleasure of supervising.
Many thanks in advance for any tips and suggestions.
All best, - charles ess
-- Professor in Media Studies Department of Media and Communication University of Oslo <http://www.hf.uio.no/imk/english/people/aca/charlees/index.html>
Postboks 1093 Blindern 0317 Oslo, Norway c.m.ess@media.uio.no _______________________________________________ The Air-L@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org
Join the Association of Internet Researchers: http://www.aoir.org/
-- Dan L. Burk Chancellor's Professor of Law University of California, Irvine ++++++++++++++++++++++++++++++++ 2017-18 Fulbright Cybersecurity Scholar
participants (6)
-
Casey Lynn Fiesler -
Charles M. Ess -
Dan L. Burk -
Jeremy Foote -
Lovaas,Steven -
Rian Wanstreet