Keeping track of Terms and Conditions

How many terms and conditions did you agree to today? If you're like most people, you probably signed up for a website and clicked "I agree" without reading a single word. We all do it. Yet, what if these documents we collectively ignore are actually legally binding and could be used against you in court?

The Legal Reality Nobody Talks About

Remember when Disney tried to dismiss a wrongful death lawsuit by pointing to terms their customer had agreed to when signing up for Disney+? The public outcry was swift and fierce. Everyone understood the absurdity of using streaming service terms to avoid liability for a death at one of their resorts or establishments. Disney eventually backed down, but the case highlighted an uncomfortable truth: these agreements we never read are legally binding documents that companies take very seriously.

For Terms and Conditions to be legally enforceable, they must meet several criteria:

1. The user must actively agree (e.g.,click "I agree")
2. They must be clear and fair (though this is heavily debated)
3. They cannot contradict existing law
4. The user must be legally capable of agreeing (not underage)

Every point can be contested, but here's the paradox: while we can generally agree these requirements make sense, virtually none of us actually read the terms we're agreeing to.

The Company Side: Where Every Word Matters

Flip the switch to the company's perspective, and these documents become sacred texts. At one company I worked for, we treated our terms and conditions with the utmost care, updating them constantly. Whenever we made even slight modifications to our code, we had to wait for legal approval. The legal team would spend weeks reviewing our changes, only to come back with a couple of words updated in a 30-page document. We'd make the change, then immediately receive another request for corrections.

Each correction triggered a mass email campaign to notify users. The irony wasn't lost on us. As employees, none of us read the terms. As consumers, none of us ever read those update notifications either. I briefly tried pasting the content into ChatGPT to get the gist, but that habit quickly died.

The Technical Challenges of Consent

The implementation challenges reveal just how complex this system has become. I once built a feature that only activated the "I agree" button after users scrolled to the bottom of the document. In theory, this meant they had read it. In practice, we all knew better.

We also had to create a comprehensive versioning system to track which terms each user had actually agreed to. An email notification about changes doesn't constitute consent to new terms. We couldn't force users to agree to updated terms if they were using an app version without push notification support. We couldn't force app updates either.

Despite our sophisticated tracking system, whenever a customer threatened to sue, they were invariably using a version of the app where we couldn't verify which terms they had originally agreed to.

The Uncomfortable Truth

We've created a legal fiction where binding agreements exist that nobody reads and few understand. Companies spend enormous resources crafting and updating these documents, implementing complex systems to track consent, and treating every word as legally significant. Meanwhile, users scroll past walls of text to reach the "agree" button as quickly as possible.

This disconnect isn't sustainable. We need either terms that people actually read and understand, or a fundamental rethinking of how digital consent works. Until then, we're all participants in a system where the most important agreements we make are the ones we never actually read.

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