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Friday, October 4, 2013

Do you think before you click those "I Agree" statements?

I must admit that I do not usually take time to read through the "I Agree" statements that seem to accompany every single computer application and every time I sign up for a new service on the Internet. Even though I am an experienced attorney and should know better, I ignore them simply because there is no way to circumvent their application unless I want to crawl back into a hole and ignore the world. But it is still a good idea to at least understand what they are attempting to do. For that reason, I captured a few of these boiler plate provisions so I could comment on them.

Before getting into specifics, there is an area of the law referred to as "adhesion contracts." These types of contracts attempt to solicit an agreement from the user of a service or the purchasers of a product. Basically, the idea is that you print a contract on the back of a ticket or a receipt and say something like,"Using this product or employing us to do the service binds you to all of the provisions on the reverse side of this document." In most cases these adhesion type contracts are not enforceable for lack of consideration.

That is essentially what is happening with the proliferating "I Agree" contracts you have to click through to do anything these days on the Web. The companies are attempting to limit their liability by getting you to automatically agree to a contract. The bad thing is that they are also including a number of provisions that may be entirely outside of the scope of merely limiting liability. Some of these provisions may be surprising to say the least.

Another bad thing about this is that courts have upheld these types of online contracts for a variety of reasons. You can assume that the company that created the "I Agree" document had an attorney who spent considerable time and his or her client's money to make sure the language of the agreement was enforceable. At the heart of this issue is the disparity in economic interest between you and the company. You have invested no money or maybe at the most, a few dollars, but the company is willing to spend thousands, perhaps hundreds of thousands of dollars to prove that their agreement is enforceable. Do you really want to try and defeat Apple or Microsoft? Think about it.

So, should we be concerned? Well, yes. Let's see how concerned we should be.

Here is a statement copied from a recent notice from PayPal.com:


When you visit the PayPal.com website or use PayPal Services, we collect information sent to us by your computer, mobile phone or other access device. The information sent to us includes data on the pages you access, your computer IP address, device identifiers, the type of operating system you’re using, your location, mobile network information, standard web log data and other information. Web log data includes the browser type you’re using and traffic to and from our site. When you visit the PayPal.com website or use PayPal Services, we also collect information about your transactions and your activities.
Hmm. It looks like to me that using these online services may involve a little more than a simple transaction. Let's see what else PayPal.com does with all this information:

In addition, if you open a PayPal account or use PayPal Services, we may collect the following types of information: 
  • Contact information, such as your name, address, phone, email, and other similar information. 
  • Financial information, such as the full bank account numbers and/or credit card numbers that you link to your PayPal account or give us when you use PayPal Services. 
  • Detailed personal information such as your date of birth or social security number. 
We may also obtain information about you from third parties such as credit bureaus and identity verification services.  
You may choose to provide us with access to certain personal information stored by third parties such as social media sites (e.g., Facebook and Twitter). The information we may receive varies by site and is controlled by that site. By associating an account managed by a third party with your PayPal account and authorizing PayPal to have access to this information, you agree that PayPal may collect, store and use this information in accordance with this Privacy Policy. 
So much for your privacy, which seems to disappear into their privacy policy.

Realistically, almost all of this type of information is being gathered about you and your use of your own computer, whether you have agreed or not. Notice, they did not tell you when this gathering process started or ask your permission to implement their policies.

This particular PayPal.com "agreement" goes on for several long pages. I have only skimmed the surface of the long involved document. Here is one more of the huge number of provisions of this one document:
PayPal maintains your preferences for use and sharing of information, including how we contact you. Some federal and state laws allow you to restrict the sharing of your personal information in certain instances. PayPal does not share your personal information with third parties for their marketing purposes unless you have given your explicit consent. PayPal's related family of companies, which are owned by eBay Inc., will only use your personal information for marketing purposes if you have requested services from those companies. If you do not want PayPal to share your personal information with eBay companies for the purpose of marketing their products within our corporate family, simply indicate your preference by logging into your account, going to the Notification section under the Settings tab and updating your preferences. 
Isn't that comforting? Now you can sleep better at night knowing you have all this control over how they use your information. Around the same time, I got updates from ebay.com and others, by the way.

Can we all just drop out of the system and avoid all this hassle? I'm sorry, but I can't give that type of advice. You will have to talk to your own legal counsel.   

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