Waiving Rights With a Click

I really like Wired magazine, so I subscribe. I mainly do that to support the journalism there. Unfortunately, Wired is owned/published by Condé Nast Digital. That means I am subject to the Condé Nast Digital user agreement, which includes automatic opting in to binding arbitration.

Binding arbitration is having a bit of a moment in consumer agreements now. If you look, you’ll find that virtually every agreement you have, whether it’s a streaming service, mobile phone provider, web site, or used car dealer, you’ll probably find that you are agreeing to waive some rights and instead enter into arbitration with the other party if you have some beef with them. And this means that even if they do something egregious, like exposing all the personal details online of all their customers, each of those customers will have waived their right to enter in to a class action lawsuit. Instead, the company gets to pay an arbitrater to arbitrate.

Back to Condé Nast. They have updated their “Privacy Policy and User Agreement” effective 1 January 2020, and they’ve given me all of 8 days notice, with the holidays in the middle of all that. Nice work.

What they Require

First, this agreement applies to anything I do with them. They say it “should be broadly construed to cover any claim relating to any aspect of your relationship with us”.

Next, they think they have obligated me to try to work things out informally first. “You agree that in the event you have any Claim against us, you will first contact us and make a good faith sustained effort to resolve the Claim before resorting to more formal means of resolution, including without limitation arbitration or any court action."

Then, assuming their informal mechanisms don’t satisfy me, I’m bound to arbitrate it using their arbitrator who they pay and select. “in the event any claim cannot be informally resolved, you and we agree to arbitrate all claims on an individual basis in accordance with the terms of the arbitration provisions of this agreement, rather than litigate the claim in court”. Note also that key phrase individual basis. They want to prevent me from forming a suit with a group of similarly aggrieved consumers.

I waive a legal right granted to me in law simply by visiting one of their sites and not doing anything else. The only way to maintain my legal right is to visit their web site AND take further action to opt out of arbitration. They put a few burdens on me:

  1. I have to know that the web page I went to is a Condé Nast web page. Good luck with that.
  2. I have to send a letter—by mail—to a postal address they provide. In that letter, I have to tell them
    • My full name and address
    • The name of the service or product I accessed, visited and/or used
    • A clear statement that I do not wish to resolve claims with them through arbitration

And can I just point out how impossible it would be for them to verify any of what I told them?

Pay for your rights

So given that there is no mechanism that is free for me to post a letter to their law firm, Condé Nast has now created a situation where I automatically waive legal rights unless I pay money to maintain them. They don’t have a free “click here to opt out” button. That, obviously, would cost them to provide it, but would not cost me to use it. Nice when you can make your customer pay for stuff that is required by law.

Their user terms contains a little lecture on how good arbitration is. “Arbitration means you will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury. by entering into this agreement, you and we each agree to waive the right to a trial by jury for all claims”. I think it is a bit rich for them to state so bluntly that it’s sure to be fair and neutral.

As Lapin Law Offices point out, arbitration favours companies over consumers. They back that up with a report on the US Supreme Court ruling’s impact from Public Citizen.

So wealthy customers who can take the time and money to retain their legal rights will have more rights than those who do not take the time or money to opt out of these agreements.

Know the owner of a web site?

Really?

15 web sites I load if I go to wired.com

15 web sites I load if I go to wired.com

How on earth does the average user know they have visited a Condé Nast web page or used a service that belonged to them. Why is this their responsibility? Is it even practical?

The image here shows all the web sites that send me some JavaScript when I visit https://www.wired.com/ in December 2019.

There are fifteen distinct URLs there. And they have some interesting properties to them. Obviously if I visit wired.com I am visiting a Condé Nast site (though I have to do an unreasonable amount of sleuthing to figure that out), and clearly something with condenast in the domain (like condenastdigital.com) is a candidate for being owned by Condé Nast. So I need to print a piece of paper listing all of those URLs that I went to.

But what about cloudfront.net? That’s interesting because it’s Amazon Cloudfront. That’s a service that is sold to various businesses for content distribution. The content coming from cloudfront.net might be Condé Nast content, in which case I need to tell them that I opt-out of arbitration related to that content. But it could just as easily be used by one of the dozen or so advertising networks that is incorporated into this page. So only a human could read the content that comes from cloudfront.net, determine its ownership, and tell me whether or not the file I downloaded was a Condé Nast file subject to their terms and conditions.

I’m not even going to get into the fact that there are around 10-12 different legal entities represented by the 15 domains there, and that each one of them probably has some similar user agreement that I agreed to be bound to just by visiting wired.com.

What could go wrong?

The list of ways that a web site or digital business might “injure” you (in the legal sense of the word) is long and complex (which is why they want you to give up your protections).

The point is that no upstanding business like Condé Nast would ever do malicious things like this on purpose. They are asking to be given a pass on the law even if they did it accidentally. But the way these terms and conditions are written, they can be exceedingly sloppy and reckless and still be protected. They say, for example (lowercasing mine): “We shall not be liable …, including damage to your device, or for software disabling devices, time bombs, viruses, worms, bugs, or devices or defects of similar nature alleged to have been obtained from the service, content or products…even if advised of the possibility of such damages”.

The upshot is that IF something goes wrong AND you try to hold them accountable, you either have waived your right to do so entirely, or you have waived your right to do so in a court of law and must submit to arbitration instead.

Conclusion

My chief complaint here is that:

  1. These are impossible burdens for any normal person. No one knows who owns or operates or provides a service that they’re interacting with.
  2. You cannot keep your rights for free. Spending time is like spending money. Typing up a letter and putting it in the mail costs money for postage and time to write. Unless you spend the extra time and money, you implicitly waive a right given to you by law.
  3. They can put a blanket “we protect everything this way” license all over their content, but I, as a consumer, have no corresponding way to say “I opt out of your arbitration clause always and everywhere no matter what.”
  4. This is just the latest extension in a long series of problems
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