Techdirt Podcast Episode 7: Terms Of Service Are The New Constitution: Do They Need A First Amendment?

from the thinking-through-the-issues dept

Thu, Jan 15th 2015 12:28pm — Mike Masnick

We all know that the First Amendment of the Constitution is there to protect us from government interference with free speech. It has no impact on private companies and how they treat your expression. However, with so much speech now happening on the internet these days, private companies almost always have some ability to get in the way of your expression. Sometimes, we think this is good -- as it can be used to prevent harassment. But, it also means that there are always points of attack, where anyone (including the government) can put tremendous pressure on private actors to stifle free expression. For many of us, when it comes to free expression, the First Amendment of the Constitution isn't so much in play as private companies' terms of service are. Yes, those terms of service that no one reads and are often written up by bored lawyers to include so much legalize as to confuse everyone, are often all that now really stands between you and your ability to express yourself. Should we be concerned at how modern speech is almost always controlled by private terms of service, rather than the First Amendment, or is there enough openness and competition online that it doesn't really matter?

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Filed Under: first amendment, free speech, podcast, terms of service, tos

16 Comments

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Anonymous Coward, 15 Jan 2015 @ 12:45pm

I have a better solution...
How about a government that just fines organizations that do this shit? Or instead of fining them make damages pretty F'ing severe when their data troves are breached?

Or make it easy for a customer to sue their pants off the moment the vendor breaches conduct with your data without consent or warning? Auto-consent should be non-consent!

that would fix it better than getting your turd muffin congress critters involved where they will just fuxxor it up without blinking an eye!
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Mason Wheeler (profile), 15 Jan 2015 @ 12:53pm

We all know that the First Amendment of the Constitution is there to protect us from government interference with free speech. It has no impact on private companies and how they treat your expression.

That excuse has always felt like a cop-out to me.

The way I figure it, if certain intrusions on our freedom are considered so fundamentally abominable that we preemptively deny their use even to the people that We The People choose to place in the positions of the highest trust, even though we can still hold them accountable after the fact, how much less, then, should we tolerate such intrusions from unelected, untrusted, unaccountable private actors?
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Anonymous Coward, 15 Jan 2015 @ 1:07pm

If people actually read the ToS and made rational decisions based on them, there would be a lot more openness and competition as well as consumer friendly behavior by companies in general. Of course there are some things that private firms do in secret and obfuscate or fail to disclose, but that seems to me to be in the minority compared to the questionable things they with complete transparency.

I think there is room for a "consumer bill of rights", but we have to shed our own willful ignorance at how the sausage gets made. Less complaining, more principled action.
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clemahieu (profile), 15 Jan 2015 @ 1:52pm

When it comes to speech limitations in ToS it seems to me like most of it stems legal liability or government censorship requirements.

Large scale providers go to great lengths to avoid being in the business of censoring speech.

This seems like blaming service providers for problems caused by the government in the first place.
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Lawrence D’Oliveiro, 15 Jan 2015 @ 2:17pm

Welcome To The Feudal Internet
Websites are fiefdoms. Users are serfs. Terms of service are not any kind of “Constitution”, they are simply what the landlord happens to be saying this week. They can change at any time. And they do.

Don’t like it? So, really, what are you going to do?
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orbitalinsertion (profile), 15 Jan 2015 @ 2:25pm

Re:
One of the reasons people don't really read ToS or EULAs is because there tends rather to be a monopoly of service and an imbalance of power: These contracts are not negotiable, as contracts should be. There is almost zero incentive for the average person (who doesn't imagine they would be violating anything, anyway) to read any boring lengthy thing (the preambles are generally enough to cause the mental equivalent of sticking one's fingers in one's ears and going "blalalalalala" while simultaneously trying to pay attention) when they have no control over it and have to accept it anyway to have what have become necessities (debatable, but that is the perception).
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John Fenderson (profile), 15 Jan 2015 @ 2:45pm

Re: Re:
Another reason that people don't read them is because they tend to be lengthy and difficult to understand. Although I'm pretty savvy about the language used in contracts (from decades of reading them), I'm never completely sure I understand what all the gotchas in any given ToS or EULA are.

If I took them seriously, then I'd have to have an attorney review each and every one of them before I agreed. However, that would make too many everyday life activities essentially impossible -- so instead, I refuse to take them seriously and just assume the worst.
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John Fenderson (profile), 15 Jan 2015 @ 2:52pm

Re:
I think I understand your point, but... there is absolutely nothing that requires that companies use ToS or EULA agreements. Since they're doing it voluntarily, it's fair to hold them accountable for the contents of them.

As an aside, I think this is statement is a stretch: "Large scale providers go to great lengths to avoid being in the business of censoring speech."

Providers go to great lengths to avoid being perceived as censoring, but they have shown little reluctance to engage in it when they want to stop speech that they personally dislike and they think they can do it without anyone really noticing.
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RR, 15 Jan 2015 @ 3:42pm

Washington State
I didn't listen to the podcast yet, sorry if you mentioned this.

http://arstechnica.com/business/2008/09/washington-court-deals-a-blow-to-unconscionable-eulas/

" ...The appeals ultimately made their way to the Washington Supreme Court.

That court has now returned a unanimous ruling that reaffirms the decisions of lower courts: AT&T's service terms contain clauses that are, in legal terms, "unconscionable," meaning that no reasonable individual would have agreed to them had he or she realized their full scope."
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clemahieu (profile), 15 Jan 2015 @ 5:55pm

Re: Re:
Personally I don't like ToS's at all and I think there should be a movement to reject them, that being said it lawyers could be adding stuff to them to keep themselves employed or there might actually be case-law where putting in your ToS "Can't use this service for illegal activity" saved them liability. Why does that line even need to exist? Busy work? Not sure.

Despite having first amendment rights and the FCC being a government institution they've still been able to enact decency regulations over common carriers for the last 50 years, listening to complaints from various "family organizations" that spawn an incredibly disproportionate amount of complaints to the FCC and have generate billions in fines to broadcasters. I worry what'll happen when broadband is reclassified and the internet is now subject to decency regulations in the US.
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Anonymous Coward, 16 Jan 2015 @ 12:47am

Re: Re:
there is absolutely nothing that requires that companies use ToS or EULA agreements

Is that true, though?
I think any website that has comments needs at least a "by commenting you give us limited copyright to reproduce your comment on our website, because that's the whole point of commenting in the first place, and if you didn't grant us that we couldn't show your comment" blurb.
I suppose that websites that allow no communication from the website back to the server probably don't require a ToS, but the EU (at least in theory) requires direct user permission to install cookies on your machine.
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Anonymous Coward, 16 Jan 2015 @ 7:32am

Re: Re: Re:
I think any website that has comments needs at least a "by commenting you give us limited copyright to reproduce your comment on our website, because that's the whole point of commenting in the first place, and if you didn't grant us that we couldn't show your comment" blurb.
Aren't you contradicting yourself here? The legal system isn't as stupid as people think. If it's so obvious ("the whole point of commenting"), we can say there's an implied license/contract, and I doubt a court would disagree. Lawyers are being way too cautious, as they tend to do.

And if they're needed at all, terms of service definitely don't need so much legalese. The text "Protective covenant, 3 yrs - 5 mi." was found to be a clear and presumptively valid contract term for example (ultimately unenforceable in that case but not due to drafting).
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John Fenderson (profile), 16 Jan 2015 @ 8:05am

Re: Re: Re:
"I think any website that has comments needs at least a "by commenting you give us limited copyright to reproduce your comment on our website, because that's the whole point of commenting in the first place, and if you didn't grant us that we couldn't show your comment" blurb."

Such a thing is absolutely not required. Many sites do it just to make a legal defense easier if someone hits them with a ridiculous lawsuit, but it remains totally optional. It isn't even needed to come out victorious in such a lawsuit.
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John Fenderson (profile), 16 Jan 2015 @ 8:06am

Re: Re: Re:
Missed this part:

"the EU (at least in theory) requires direct user permission to install cookies on your machine."

I'm speaking from the perspective of US law. I have no idea what other nations require.
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John Fenderson (profile), 16 Jan 2015 @ 8:09am

Re: Welcome To The Feudal Internet
Website are not places, and so they cannot be fiefdoms or have serfs. They have users. If you don't like how a website operates, you can complain to the website and try to convince them to change. If that doesn't work, then you can stop going to the website.

I've stopped going to many websites because I didn't like their policies.
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Steerpike (profile), 16 Jan 2015 @ 9:43am

Re:
I wouldn't call it a cop-out. It's just a statement of the law. The Constitution is a document intended to define the boundaries of government power. In general, some kind of "state action" is required if you want to bring a Constitutional claim.

But just because something isn't in the Constitution doesn't mean it can't be addressed. We have federal law for that (that's why we have the Civil Rights Act, for example; if you discriminate in your business on the basis of race you aren't violating the Constitution, but you are violating Federal law).

I agree we shouldn't tolerate it, but the fact that it isn't a Constitutional issue doesn't mean we have to tolerate it. We need Federal legislation in place that addresses these matters.
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