Legal Incantations and Informed Consent
(This is a response to a piece written by Edward Felten for Tech Policy. Check that out first, then read one.)
One technicality that Felten is overlooking is the user's informed consent upon registration. When users sign up, they opt-in to the terms as offered by Facebook. Then Facebook, its third party partners, and FTC, all convince themselves that the user actually read and understood the offered terms, and knowingly consented to them. This is the basis of informed consent online, and despite everybody involved knowing that the 'informed' part is a farce, it is what makes Facebook's claims of consent (tenuously) binding, while making users' claims of consent a meme.
As an informed user who consented, you know about and consented to the clause that allows Facebook to change the terms of its agreement with you, and get automatic consent from you. Basically, because you read the terms (you did read them, right?), you consented not only to the terms and conditions as defined at the time you registered, but you also agreed to all future versions of the terms and conditions. At no point did Facebook agree to the same perpetual consent of terms and conditions as modified by you. Facebook never opted in on the clause 'Our continued availability of our website, and hosting of your content, constitutes our acceptance of your amended terms.' This is why the legal incarnation meme doesn't work: Facebook isn't bound to consent to changes defined by users to the terms and conditions in the same way that users are bound to consent to changes defined by Facebook.
OK, so that explains why a Facebook user can not simple change his/her agreement. Now lets look at the terms of use that Felten includes, courtesy of Cory Doctorow
READ CAREFULLY. By reading this post you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.
The problem with this is there is no informed consent at all. In order to be informed of the terms as defined above, I have to read them. But by reading them, I consent. I can not be informed of the terms and decide not to consent. For all of the flack that Facebook takes about unilaterally defining its agreement with me, I at least had the option to decline after reading when I registered with Facebook.
All that said, I agree with the spirit of Felten's post. The informed consent distinction is easily overlooked by people because websites and the FTC overlook the informing part everyday. It's no wonder that Felten writes "any explanation as to why [legal incantations] should be unenforceable would tend to undermine Facebook's own claims about its terms of use and related statements." Everybody involved knows the consent system is built on looking the other way. If Facebook calls attention to that, the court, or policy makers, might finally call into question just how binding those terms and conditions truly are.
Besides, in a day and age in which operating agreements are no longer negotiated, why should corporations have all the fun of broadcasting legalese?
