‘Little Clicks, Big Consequences’

Brett Frischmann and Evan Selinger, Re-Engineering Humanity (2018). The unique qualities of digital contracts – weightless, easily duplicable – have made them ubiquitous and much longer than their paper counterparts. Consequently, they are everywhere and accordingly, nobody reads them. Yet, courts have consistently argued that digital or ‘wrap’ contracts (shrinkwrap, clickwrap, browsewrap, etc) are just like paper contracts and that the same doctrinal rules should apply. Sure, tech giants like Facebook and Google use wrap contracts to vacuum our data under the guise of consent, and companies have used them to impose onerous one-sided clauses, but isn’t that just the same old ‘lack of consumer bargaining power in a capitalist society’ problem that we’ve always had dressed up in digital form? It’s not like digital contracts will lead to the end of civilization as we know it – or will they? … (more)

[Nancy Kim, JOTWELL, 17 June]

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