From: Murray Lohoar [mailto:
]
Sent: Monday, January 14, 2013 2:22 AM
To: Savage, Christopher
Subject: RE: Battle of the Online Forms [Was: [projectvrm] Mobile SSL holes]
Murray,
<snip>
>>By the way using your analogy of picking up the apple, it is easy to make people pick up the apple without them even knowing – putting a web page
up that draws content from other web pages is how the web works and so I was never really sure how the default acceptance of terms could survive any level of scrutiny even at a basic level. Just because my computer sent your computer a request for some data,
does not mean that I knowingly sent the request. If I did not knowingly make the request, can I be making a contract at all? It’s easy to have people walking down the street and for me to fill their pockets with apples and for them to be oblivious of the
fact.<<
The short answer is, yes, sometimes you can. One level of analysis is what you actually know. Another level of analysis is what a “reasonable person” would know in the relevant circumstances.
Now, it may be that in some situation the individual could argue that even a reasonable person would not have known [x], but if you think about it you will see why legal rights and responsibilities can’t entirely turn on actual subjective knowledge. If they
could, then basically the best defence against a legitimate legal claim is to be stupid and clueless, since then you can truly explain that you didn’t know, didn’t understand, etc.
>>In fact many email tracking services use that exact mechanism by injecting an invisible image onto the page of an email and when you read the email,
the image is served (unknown to you) from the server. In opening the email, have I agreed a contract?<<
In that case, probably not.
<snip>
>>If I understand correctly, you are driving at orchestrating a mechanism to challenge a legal point. One of the things I was thinking about was a
sort of Crowd Sourcing for this type of idea. Currently there seems to be many asymmetric legal agreements where, as an individual, it’s not really viable to challenge the situation where you are subject to a default item of an agreement, but which you might
want to challenge (the current surprise price increase in UK telecoms is a good example). I was wondering whether the concept of crowd funding the financing and orchestration of legal test cases was a realistic concept. <<
Basically. Right now I am looking at individual participants in the marketplace being naked and defenceless against online standard terms and conditions in various websites. My first, modest plan
here is to give folks something by way of defence. Given that we are talking defence, not really an attack, we’d have some tactical questions: do we craft our individual-friendly terms and conditions mainly to try to negate the most outrageous
stuff that enterprises might try to do to us? Or do we counter outrageousness with outrageousness (e.g.,
my $50 per week “disk space rental fee” for placing cookies without my express consent).
>>Currently, people can express their displeasure in a passive way by complaining at various sites or voting with their feet, but sometimes you do
get the feeling a more collective positive action is required.<<
That is exactly
what I am suggesting. My idea is not that there actually would be truly individualized negotiations between individuals and enterprises, leading to a myriad of separate contracts. My idea is that some organization would develop (say) two or at most
three standard individual-friendly contracts (cf. Creative Commons). People would pay $10 (or
£10, over there) to sign up. You would get the “tell the enterprises that all downloads from their server are conditional on acceptance of your terms” add-on. The organization would then have a group of potential
parties to legal disputes with enterprises that violate the individual terms that the enterprises agreed to by downloading their files to the individual’s computer.
<snip>
>>So here’s an idea.<<
>>Start a consumer legal projects service which is crowd funded in the normal way. A legal “case” is defined and a target war fund estimated to achieve
a series of objectives (PR, first stage action, etc etc). People can view and agree with the action and donate to funding the work. It’s a sort of online petition where you get to fund some action. In the same way that Crowd Funding works, the activity only
begins once the target has been achieved. Cases with high “passion” get funded, cases with low passion fall by the wayside.<<
>>Currently there is no collective legal entity to press home these points.<<
>>So... your idea of orchestrating a test case to push some of this thinking forward could even be funded!<<
Right. There are some legal/regulatory hoops one would have to leap through here in the US but that is basically it.
The key legal hack is this: if it is legal for enterprises to impose outrageous and unfair conditions on individuals by virtue of a machine exchange of signals (individual reading a web site file
binds individual to web site’s terms and conditions), then it is also legal for individuals to impose reasonable conditions (maybe even outrageous and unfair ones!) on enterprises by virtue of a machine exchange of signals (enterprise-controlled servers sending
files to individual’s computer, etc.). What’s sauce for the goose…
>>Presumably, there is no reason why anyone can’t support a cause through funding?<<
At least in the US there are some formalities required but it’s certainly do-able. The EFF and the ACLU, e.g., are member-funded groups (as well as recipients of donations) who take on legal defence
of members (or even non-members) in appropriate cases.
Chris S.