Abstract
The longstanding legal assumption that signing a contract represents an informed and willful agreement of the signatory to the terms of the contract has long been challenged in the case of terms of service (ToS) and privacy policies agreements (PPAs) of digital services. Although these legal documents regulate what may be a long-term and active relationship between users and the app, users tend to sign them without reading them. Yet, ToS and PPAs often include normatively problematic provisions regarding the handling of users’ private information, limitations on legal actions, and other issues that users may not expect to contain. Still, according to the current “notice and consent” regulatory model, users are mostly legally bound by the provisions to which they mindlessly agreed by clicking the button. This study argues that technology and digital interface design, which are part of the problem, may also be part of the solution. It establishes the failures of the current regulatory model, presenting evidence of low rates of ToS and PPA perusal. Next, it analyzes the current technological solutions developed in response to these failures and evaluates their effectiveness. After concluding that current models are far from optimal, the Article articulates a set of guiding principles for creating an aggregate numeric index that captures the degree to which the apps protect users’ privacy and rights. The paper discusses the problems, current solutions, and potential innovations in ToS and PPAs regulation, contributing to both scholarly debates and policy-making efforts in this domain.
Details
Presentation Type
Paper Presentation in a Themed Session
Theme
2024 Special Focus—Traveling Concepts: The Transfer and Translation of Ideas in the Humanities
KEYWORDS
Law and technology; Digital consumer contracts; User Data Protection Index
