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Surrender with a Button: The Broken World of Terms and Conditions · Ryan's Journal

• 0:15
  Okay, Ryan opens with a confession, so I'm opening with it too.
• 0:20
  He says he skips right over the terms and conditions popup.
• 0:24
  He clicks OK just to make the screen go away so he can read his article.
• 0:29
  And I say good for him for admitting it, because everybody does it.
• 0:34
  Millions of people.
• 0:35
  Every day.
• 0:36
  Click, click, click.
• 0:38
  What gets me is that he's not lazy.
• 0:41
  The screen is sitting on top of the thing you came for, like a guy standing in front
• 0:45
  of a door with a clipboard.
• 0:47
  You say OK because you want the article.
• 0:51
  That's not consent.
• 0:52
  That's surrender with a button on it.
• 0:55
  Surrender with a button!
• 0:56
  That's it.
• 0:57
  And Ryan's point is that the whole system is built on that surrender.
• 1:02
  They count on the click.
• 1:03
  They count on you being tired.
• 1:06
  They win on tired, folks, they win on tired every time.
• 1:11
  He draws a line I thought was smart, too.
• 1:14
  If you subscribe to something like eBay, a change to the terms can land in your
• 1:19
  email.
• 1:20
  Somebody told you.
• 1:21
  But the guy who just wanders in off the street with no account?
• 1:26
  Who tells him anything?
• 1:27
  Ryan keeps coming back to that phrase, acknowledgement of receipt.
• 1:32
  What does a receipt even mean for a visitor?
• 1:36
  And notice where he's standing.
• 1:37
  Last time we went through his memo on the back door, companies ending your account
• 1:42
  at any time without notice.
• 1:45
  Now he's at the front door, the person who never signed up for anything.
• 1:50
  Back door, front door.
• 1:52
  He is covering the whole house.
• 1:54
  Then he walks right into a trap, and to his credit he spots it himself.
• 1:59
  Okay, so send people a notice when the terms change.
• 2:03
  Send it where?
• 2:05
  An email address.
• 2:07
  So to read one news story, you hand over your email, so they can tell you about the
• 2:12
  terms you didn't read.
• 2:14
  That's a toll booth built to fix a toll booth.
• 2:18
  A toll booth to fix a toll booth.
• 2:21
  Thank you.
• 2:22
  And then he gives us the recliner.
• 2:26
  The recliner is the whole show.
• 2:28
  You're just researching a chair.
• 2:30
  Ryan says you walk away, and possibly they've picked up your name,
• 2:34
  your address, your email, your browser, your IP address, maybe the last ten,
• 2:41
  twenty, thirty websites you visited.
• 2:43
  I'll give him his own qualifier, he says possibly, and he says you might not even
• 2:48
  have known.
• 2:49
  That's the point.
• 2:50
  A man went shopping for somewhere comfortable to sit, and he left a file behind.
• 2:57
  You went to look at the chair, and the chair was looking at you.
• 3:00
  That's a reclining chair with a surveillance package.
• 3:02
  Here's where it gets interesting, though.
• 3:04
  The background reading backs him up in one way and kicks him in the shins in
• 3:10
  another.
• 3:10
  Courts have had a problem with the passive version, where the terms sit in a footer
• 3:16
  and the site says just by browsing, you agree.
• 3:19
  That's called browsewrap.
• 3:21
  In Nguyen v.
• 3:23
  Barnes and Noble, the Ninth Circuit in 2014 said consumers cannot be expected to
• 3:29
  ferret out hyperlinks to terms they have no reason to suspect they'll be bound by.
• 3:36
  Good!
• 3:36
  The little guy gets a win.
• 3:38
  But now the click version, the one Ryan actually does.
• 3:43
  They call it clickwrap.
• 3:44
  In Forrest v.
• 3:46
  Verizon, the terms were in a small scroll box, around thirteen pages,
• 3:51
  hard to read, and the court still said the customer had ample notice.
• 3:56
  The principle was you had the opportunity to read it, so you're bound,
• 4:01
  whether you read it or not.
• 4:03
  So the exact click Ryan makes out of pure fatigue is the click the law likes best.
• 4:09
  The system rewards the reflex.
• 4:12
  That's why his question matters.
• 4:15
  It isn't whether the box got clicked.
• 4:18
  It's whether anybody was ever really told anything.
• 4:21
  Now the solutions, because Ryan actually brings some, and the first one I love.
• 4:28
  Make companies list every modification, every edit, every change to their terms.
• 4:34
  A full revision history, right there on the website.
• 4:38
  Show your work!
• 4:40
  You changed the rules, so show us every time you changed the rules.
• 4:44
  His second one is plain old common sense.
• 4:47
  Seventy pages is not a contract, it's a hostage situation.
• 4:52
  He says cut it down to one page.
• 4:55
  Maybe you agree to the basic terms, not every last sentence of the boilerplate.
• 5:01
  And he's honest that he doesn't know how you'd pull it off.
• 5:05
  But the instinct is right.
• 5:07
  And here's the part that made me sit up.
• 5:09
  Congress has already had a bill like this.
• 5:12
  The TLDR Act, Terms of Service Labeling, Design and Readability.
• 5:17
  Bipartisan, from Congresswoman Lori Trahan and Senators Bill Cassidy and Ben Ray
• 5:23
  Luján.
• 5:24
  It would have the FTC require a short summary at the top of the terms,
• 5:28
  including how much effort it takes to read them, like a word count or reading time.
• 5:34
  And the summary has to name the sensitive information the company handles,
• 5:39
  and online browsing history is on that list.
• 5:42
  It also calls for historical versions of the terms and the changes.
• 5:46
  That's Ryan's changelog, almost word for word.
• 5:50
  Now, the law firm that wrote it up, Loeb and Loeb, in January 2022,
• 5:56
  said it remained to be seen whether it would get the votes.
• 5:59
  So I'm not telling you it's law.
• 6:01
  I'm telling you a man talking into a recorder landed in the same neighborhood as
• 6:06
  senators.
• 6:07
  Same neighborhood, and he didn't need a hearing room.
• 6:10
  And the third idea is about power.
• 6:13
  Should a website be able to pass your personal information to third parties just
• 6:19
  because it's written in the terms?
• 6:22
  Ryan says that comes back to consent.
• 6:25
  Do you consent or don't you.
• 6:28
  Separately, for the data.
• 6:30
  Not bundled in with seventy pages.
• 6:33
  The privacy guidance points the same direction.
• 6:36
  Termly says under most data privacy laws, consent has to be an affirmative,
• 6:43
  explicit action.
• 6:45
  No pre-ticked boxes, and they say one big Agree button covering the privacy
• 6:51
  policy, the cookie policy, and the terms together is a legal problem under most of
• 6:58
  those laws.
• 6:59
  Separate choices, separate boxes.
• 7:03
  Ryan was feeling for that door in the dark.
• 7:07
  Meanwhile, the people's answer is, I'll get a VPN.
• 7:10
  He mentions that.
• 7:11
  People go that route.
• 7:13
  And Ryan's not knocking it, but he says it's treating the symptom.
• 7:18
  Putting a raincoat on because the roof leaks.
• 7:21
  It might keep you drier.
• 7:23
  It doesn't fix the roof.
• 7:25
  And the best part is he doesn't pretend.
• 7:27
  He says it out loud, I'm still at a big question mark.
• 7:31
  Most people with a microphone never admit that.
• 7:34
  They arrive with a solution and a mug.
• 7:36
  That's why I trust it.
• 7:38
  He asks how you make the terms fair and balanced, and he asks what's been done,
• 7:43
  what's being done, what's going to be done.
• 7:45
  Then he hands the question to you.
• 7:47
  If you've got an idea he hasn't touched, send it in.
• 7:51
  He says it might give him some guidance.
• 7:53
  So that's the assignment, folks.
• 7:55
  Think of something good.
• 7:56
  And the next time a popup shows up while you're just trying to read about soup,
• 8:01
  or a recliner, take one second before you click OK.
• 8:05
  Just one.
• 8:06
  Then click it, because we're all human.