Techdirt Podcast Episode 7: Terms Of Service Are The New Constitution: Do They Need A First Amendment?
from the thinking-through-the-issues dept
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
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I have a better solution...
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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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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Re:
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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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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Re: Re:
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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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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Re:
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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Re: Re:
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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Re: Re:
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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Re: Re: Re:
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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Re: Re: Re:
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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Re: Re: Re:
"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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Welcome To The Feudal Internet
Don’t like it? So, really, what are you going to do?
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Re: Welcome To The Feudal Internet
I've stopped going to many websites because I didn't like their policies.
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Washington State
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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