A quick follow-up to my post a moment ago about the FTC action to ban non-compete agreements.
It seems that a week doesn’t go by these days without me receiving an email from some company I’ve done business with (which translates into needing an online account with) sending me an email telling me that they’ve changed their Terms and Conditions to deny me the right to participate in any class action case against them.
I’d love to see the FTC (or Congress, but I’m not holding my breath on that) create a rule forbidding that. Binding Arbitration in place of a court case makes sense if it’s agreed to by two equal parties sorting out some dispute who want to save the costs and complexity. But the legal system is there for a reason. The right to a trial by a jury of regular people ought to be one of those inalienable rights alluded to in our Declaration of Independence. Certainly, a large faceless company should not be allowed to unilaterally push individual people in that direction, particularly when people can’t really be expected to understand the trade-offs.
And that brings me to the next point: how long will the legal system prop up this ridiculous idea that anyone has acutally consented to anything in anyone’s Terms and Conditions? Certainly no one consents to those agreements by any reasonable definition of those words. And that’s doubly true when companies are allowed to unilaterally revise those terms after the fact.
I’ve long thought it would be helpful for regular people (and useful for small businesses trying to operate in good faith) if the FTC made several standard Terms and Conditions agreements available for use. It would be similar to the Creative Commons or the various Open Source licenses. The standard agreements would cover the common situations. They would contain the fine print that most good-faith Terms and Conditions agreements do now, but they would also have a good summary written to explain those terms to regular people.
That way, we wouldn’t have to read through ten pages of Terms and Conditions before applying for a credit card for example. The company offering the card could just say: “we use the Standard Consumer Card agreement, with 30% interest rate, and a 12 month interest-free introductory period,” and we would be able to reference that and trust that there isn’t some clause hidden in the fine print.
It would also have the helpful side-effect that companies couldn’t easily modify their agreements without consumers really understanding what’s going on (or at least having a reasonable opportunity to do so).
It would be helpful for small businesses as well, as they could make use of the system to choose a Terms and Conditions template that makes sense for their company, and trust that it covered the situations they should reasonably expect, without having to incur the overhead of going to a lawyer (or it would allow counsel to more effectively advise them, since the options would be better understood).
Come to think of it, such a system could work very well in this new era of federated social media, where standing up an individual blog or fediverse host of some kind is easy to do, but where having some standard Terms and Conditions (and Privacy Policies) that we could rely on as a template would be very helpful.