Abstract
Standard form consumer contracts (SFCCs), including Terms of Service agreements, are drafted by businesses and presented to consumers on a non-negotiable basis. Since these contracts present an asymmetric imbalance of information and resources between parties, they have been of concern for consumer rights in recent years. While some have characterized these issues as a ‘duty to read’ for consumers or as egregious terms and weak disclosures by drafters,’ this project suggests at least part of the issues exist from a lack of consideration of the document itself (i.e., medium, format, authenticy, reliability, stability) and the processes that deem it ‘standard.’
Highlights
Standard form consumer contracts (SFCCs) are drafted by businesses and presented to consumers on a non-negotiable basis, commonly appearing as Terms of Service (ToS) agreements in the margins of many popular web pages
This information was provided to the firm Cambridge Analytica (CA) whom had been hired by the Trump campaign team to profile users using this data for political influence through social media platforms
One prominent author on the topic, Omri Ben-Shahar, cited a “grand bargain”—a term that was eventually disfavoured after a pushback by consumer advocacy groups 6—when he described how new legal descriptions of these contracts 7 embody a trade-off between a service and convenience of use: On the one hand, the draft endorses rules of assent that are fairly lenient; they do not require too many clicks for terms to be adopted, they do not require too many boxes to pop up when consumers surf on the Internet
Summary
For SFCCs, this phase will outline what the ideal solution would accomplish—the information ideally communicated or explained, processed, extracted, understood, and preserved, based on the SFCC situation. The most important outcome of this phase will be to decipher between the types of compliance efforts that would be required of businesses (e.g., format or schema requirements) and the work that would be done by other entities such as consumer advocacy groups. These two efforts most probably would be iterative and inform each other, but a clear distinction is necessary to set out the types of regulation that might be needed
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