'If you’re like most people, you’ve probably clicked “I agree” on many online contracts without ever reading them. Soon you may be deemed to have agreed to a company’s terms without even knowing it. A vote is occurring Tuesday that would make it easier for online businesses to dispense with that click and allow websites that you merely browse — anything from Amazon and AT&T to Yahoo and Zillow — to bind you to contract terms without your agreement or awareness.
As public outcry mounts over companies like Facebook collecting and selling user information, the new proposal would prime courts and legislatures to give businesses even more power to extract data from unwitting consumers. If the proposal is approved, merely posting a link to a company’s terms of service on a homepage could be enough for the company to conclude that a user has agreed to its policies. That includes everything from provisions that allow the sale of customer data or grant the right to track visitors to policies that limit consumers’ legal rights by barring them from suing in court or in class actions. Some courts have already given their blessing to this practice. But the proposal up for a vote Tuesday is set to make those kinds of business-friendly rulings all the more common.
The proposal has outraged consumer advocates, state attorneys general and other constituencies. They see it as improperly tilting the scales in favor of business interests. They argue that the solution is creating clearer, simpler contracts rather than lengthy, confusing ones that are harder to find. The proposal’s authors counter that they have simply summarized trends in American law.
There’s been little discussion of the impending change in the general public. That’s because the vote isn’t before Congress, the Supreme Court or a regulatory agency. It’s before a private association virtually unknown outside legal circles: the more than 4,700 judges, legal scholars and practicing attorneys that constitute the American Law Institute. The new proposal was drafted by three law professors affiliated with the organization.
Almost a century old, ALI is about as elite an institution as the United States has to offer. It counts among its founders two chief justices of the U.S. Supreme Court — one of whom, William Howard Taft, was also the 27th president — and its membership is a who’s who of the American bar. Speakers at ALI’s annual conclave in Washington this week include Chief Justice John Roberts and former Justice Anthony Kennedy.'
Read more: Soon You May Not Even Have to Click on a Website Contract to Be Bound by Its Terms
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