Why Do We Blindly Sign Terms Of Service Agreements?

Audie Cornish talks with University of Chicago Law School professor Omri Ben-Shahar about terms of service agreements for software and websites.

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From NPR News, this is ALL THINGS CONSIDERED. And it's time now for All Tech Considered. Do you agree to the terms of service? For most of us the answer is yes, after blindly scrolling down to the bottom to check the box. We have to if we want to use that cool new software we just downloaded or that smartphone we just bought. But what exactly are we agreeing to? Many of us don't know and don't care until it affects us directly, especially when it comes to privacy. And one of the more recent dustups has been around Facebook's new messenger app.

REED ALBERGOTTI: Basically, Facebook Messenger is the same thing as sending a Facebook message right within Facebook. But it's a separate app with some different features.

CORNISH: That's Reed Albergotti. He covers Facebook for The Wall Street Journal, talking about Facebook's new feature for mobile phones.

ALBERGOTTI: A lot of people, when they downloaded the Facebook Messenger app, especially in the Android operating system, they realized that they were being asked to give Facebook permission to access all sorts of things.

CORNISH: Things such as your microphone, camera and location. That's when people started complaining to Facebook. They had downloaded something and agreed to the terms to use it, but they hadn't realized until later all the things it could possibly do.

ALBERGOTTI: I mean, Facebook has amassed the largest store of data, of personalized information about people, in the history of the world. Nobody, not even the NSA, has this much data stored on servers about people. So I think that's one of the reasons these privacy concerns flare up about Facebook from time to time - because I don't think most people realize really what they're giving up.

CORNISH: And, of course, it's not just Facebook. We agree all the time to terms for software and websites, and we do it blindly. Why do we have these boxes to click on, anyway? For that, we turn to Omri Ben Shahar. He teaches contract law at the University of Chicago. He's co-author of the book, "More Than You Wanted To Know: The Failure Of Mandated Disclosure." Welcome to the program.

OMRI BEN SHAHAR: Happy to be here, Audie.

CORNISH: So the idea of mandated disclosure people might recognize as the terms and conditions. And you've studied this issue, at one point actually printing out the Apple iTunes contract, right? What did that look like?

SHAHAR: Yes, after I received one of their new versions on my iPhone. When I scrolled down and it said, page 1 of 55, I emailed it to myself, printed it out, and it looked like a 30-feet long monster of eight-point font. So to display its enormity, I hung it from the roof of the building of University of Chicago Library, for all to see, to try to exhibit the length and the pointlessness of trying to read the disclosure that we receive from all sorts of services.

CORNISH: Pointless, even for an expert in contract law?

SHAHAR: It is pointless, probably even for the lawyers that drafted it because when I looked at that particular version, I found many typos. It looked like probably not even the disclosers read their own texts carefully.

CORNISH: Now, there's actually a little legal history behind that popup box - right? - like the idea that hey, before you go any further, you've got to click yay or nay.

SHAHAR: There's actually a very interesting decision by then-Judge Sonia Sotomayor, before she became a Supreme Court justice. In the early days of the Internet, when we all used the program - I don't know if you remember it - Netscape Navigator.

CORNISH: Yes, of course. (Laughter).

SHAHAR: Yep. So Netscape invented one of these data harvesting devices. But it wanted people's agreement. The problem is that their lawyers did not advise them to get expressed agreement by these mechanical clicks of, I agree. Instead, they only explained what they're doing in a link. And the link, Judge Sotomayor held, was not conspicuous enough. So people were denied the opportunity to give meaningful agreement to that. And I think most businesses learn that if they want to make sure they are not subject to lawsuits, they have to get these agreements through the I agree click.

CORNISH: Now, what's wrong with doing it this way? I mean, yes, it's annoying. Yes, we should probably read them. But what's damaging about it?

SHAHAR: There's nothing wrong. It's a very minor annoyance. But there's also nothing good. We know from studies that nobody reads it. And when I say nobody, I'm not rounding up a small number to zero.

SHAHAR: The actual - the number is actually zero. So this is a fiction of informed consent. And if we think that there are reasons to protect people, to help them make meaningful choices, this particular regime is failing.

CORNISH: What are some of the alternatives that will, A - let consumers know what they're getting into, right?

CORNISH: And corporations don't want to be sued. I mean, what's the next option?

SHAHAR: Well, I think to know what the solution has to be, we have to understand if there is a problem here. And so far, the problem of websites collecting people's information seems a bit abstract. We don't have actual victims who say, look what happened to me and ask for some kind of legal protection.

CORNISH: But you - you did say earlier that corporations are trying to protect themselves legally, right? I mean, they must perceive a problem, then.

SHAHAR: They perceive the problem that they might be sued for using people's private information without consent. And because of that, they try to protect themselves to avoid lawsuits. But in the area of data collection and privacy concerns, it seems that what's going on in this market is a grand bargain. The businesses give you these fantastic services, Google Search, Facebook and many other things, for free. You, in return, give us the information, and we commercialize it by selling it to advertisers and sending you targeted ads. Now, if you don't like it, you don't have to use our service. This is how we do it. If you're very sophisticated and you don't like it, there are ways in which you can opt out. You can pay probably up to a hundred dollars a year to all sorts of online services that will anonymize you. But for many people, the bargain is a great bargain. They don't really care that much about a hypothetical dignitary effect of having their information stored by someone. And at the same time, they like very much that they don't have to pay.

CORNISH: Sounds like you're saying we shouldn't bother reading those terms and conditions.

SHAHAR: Oh, absolute not - don't even try. You don't have enough time in the year. Don't feel guilty about it. What you should do is follow some of these watchdog and watch groups that circulate information about particularly annoying new practices, like the one that you mentioned that Facebook is launching. And in the past, this kind of consumer pushback has led Facebook and Google and others to scale back their aggressive data harvesting practices. To the extent that something truly upsets a large number of consumers, we see that this - the mechanism forces businesses to respond to consumer demand.

CORNISH: Omri Ben Shahar. He teaches contract law at the University of Chicago. He's also co-author of the book, "More Than You Wanted To Know : The Failure Of Mandated Disclosure." Thanks so much for talking with us.

SHAHAR: It's been a pleasure.

CORNISH: OK, one note for you privacy hawks who just know there are keys to look for in that gobbledygook, if only you could understand it. For you, there's Jonathan Zittrain, law professor at Harvard. He says you can look for certain things in a website's privacy policy.

JONATHAN ZITTRAIN: It will be important to see if that site reserves the right to sell your data or provide it to third parties that it selects.

CORNISH: And Zittrain says if you want your computer to warn you about less-than-kosher policies, you can download a plug-in called Disconnect.

ZITTRAIN: It will have, ahead of time, parsed that ridiculously long terms of service. And it will purport to give you red flags if there's something within it that isn't normal.

CORNISH: Then again, even Disconnect has its own terms of use.

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