By viewing our site, you agree to reams of crap

We see it all the time, do we not? “Use of our site constitutes agreement to [a massive Terms of Service that has probably been read once in history, by the paralegal who mashed it up for the lawyer’s signoff, and contains gods only know what].”

I am making the case for paying such TOS little to no heed.

Here’s my approach: I don’t recognize them. Yes, they probably in theory have the law on their side; no, I don’t care. I will not comply, and they can go to hell for trying to give me orders. Here is my reasoning:

  • No one put a weapon to the organization’s head and caused it to publish a website viewable by the random general public. The information now has the moral privacy rights of a billboard, or the side of a city bus, or the painted front window of a business.
  • I am not planning on misappropriating their information, nor plagiarizing it. If the site has downloadable content, it looks to me like a pile of flyers with a sign that says “take one.” Any information whose distribution they wish to restrict, they will put behind closed doors (requiring login and password, perhaps more). The New York Times does just that. In turn, I decided not to keep visiting the Grey Lady in her assisted e-living home.
  • If the site doesn’t like people using itself unless one allows all the data mining and other widgets to work, fine; have the designers break it for anyone who will not. Oh my heck, they say, but that results in a lot of complaints? Too damn bad, not my problem. If the company does not care about my problems, as evidenced by a bulky TOS, it gives me no moral reason to care about its problems. I have the loophole here and I see zero reason not to use it.
  • Absent some moral reason, only enforceable laws and claims matter. One can claim that someone ‘signed’ an agreement all one wants, but unless one is willing to sue to enforce it, and would win, it means nothing. If the law or claim cannot or will not be enforced, the question then becomes whether it has moral force. For example, taking too many napkins at the burger joint: how many is too many? Legally, it’s probably as many as you can pull out before being noticed and kicked out. Morally, it’s as many as necessary to maintain some semblance of civilized dining. Morally, the business has trusted you without putting up an admonishing sign, or putting the napkins behind the service counter, or trying to tell you that your eating here constitutes acceptance of these terms. Trust deserves validation.
  • The best case for a moral reason comes from sites which ask politely, but do not penalize anyone for declining. Fark.com is one. DuckDuckGo is another. In those cases, with no compulsion, the site’s offer has moral validity and deserves reasonable consideration (and will get same from me).

The same is true for license agreements. The law has let the software industry construct a bizarre situation which now allows, for example, a car company to install software in your vehicle and thus claim that you haven’t really purchased all of your vehicle, that you don’t really own it. In service of the legitimate cause of fighting piracy, the law has let them construe it that you don’t ever actually own anything tangible, just a license.

That’s crap. To me, morally, a piece of software looks more like a book (or a coffee maker, etc.) than like a legal right to do a thing. I believe that if I bought a copy, I own that copy. The law says otherwise, and I do not care. If I duplicate the book and sell copies, that’s morally wrong. If I copy part or all of the book and claim it myself, that’s morally wrong. But if I tear a page out of the book because for some reason I don’t like it, I see nothing morally wrong with that. And if I want to hack the software for my own use and purposes, I see no moral problem with that either. It’s when I rob the producer of sales, or misrepresent the producer’s work as my own, that I step over the moral line. If it’s shareware, though, I should (and often do) pay if I plan to use it.

It is an example of how corporations and government frame a situation the way they prefer, and we allow them to get by with it by speaking in their terms, acknowledging the moral legitimacy of their framing. We could cease to do that.

  • “The TOS says you agree to take cookies and not to block our ads.”
  • “That conflicts with my own TOS, which say screw you, since there’s nothing you can do about it.”
  • “But you made a legal agreement!”
  • “Great. Sue to enforce it, and see how well that works. I don’t recognize agreements done in slimy ways, like four pages of fine print written in legalese full of hidden gotchas. If you want us to make an agreement, make it up front, sensible, and readable. If it’s not stupid, maybe I’ll agree to it. If it’s stupid, I’ll just say screw you.”
  • “You can’t do that!”
  • “Then stop me. There are a lot of things I would stop you from doing as well, perhaps, but I can’t. Better hope I never can. In the meantime, tough; screw you.”
  • “But the ads are part of our revenue stream!”
  • “The implication is that I care about your future. I don’t; we all have our problems. If you feel that way, then break your site for anyone who blocks them.”
  • “That’s not feasible!”
  • “I’m still waiting to hear how your problem is my problem. Some of your scripts, cookies, and such serve useful purposes for site operation; some are just data mining and shoving stuff in my face. My own TOS, which are not written down but which I consider binding, say that I should avoid all data mining that I can, and that once your site attempts it, you forfeit all moral anything and I can use your site however I want provided I don’t damage it.”
  • “If everyone looked at this your way, we’d have to become a pay site.”
  • “No one held a knife to your neck and required you to publish a website. You think it looks like your office filing cabinet. I think it looks like a billboard. I can look at the billboard all I want, and I don’t owe the billboard any data about myself. And if the billboard demands data, I get to flip off the billboard. Do what you have to do, but I’m not letting you frame this from a standpoint of legal or moral superiority. Legally, there’s nothing practical you can do. Morally, you have done the opposite of establishing moral high ground, turning the gesture of flipping you off into a pleasing act of rebellion. Party on.”

The philosophy in play here is simple: we are not morally obligated to comply with a situation/agreement/TOS just because it has some tortuous legal basis. Law is not morality and shouldn’t ever be mistaken for it. And when we forget that, we are letting government and corporations define all the terms, set all the parameters, dictate right and wrong.

They’d like that, wouldn’t they? They do like that. They hope you will troop along in submission.

And what of my own website, this one? Well, I’m the maintainer, not the user. I can’t do anything about whatever rules WordPress imposes; it imposes some on me, and I have to abide by them or they’ll kick me off. I have no difficulty with that in an ongoing relationship as a trade for a permanent hosting platform, since I get something of value.

But perhaps some users don’t like something about whatever TOS WordPress may have. If so, someone will probably circumvent them, with a minor impact on me–one is user data. But how, then, do I feel about the missing visitor data? I feel great about it. My right to compile visitor data doesn’t reach the moral level of my readers’ right to privacy, and if I ever try to say that it does, someone needs to put me out to pasture. Therefore, if you are reading this yet blocking a bunch of cookies or scripts or what have you, okay. I have no opinion on it. If I were the type to set up hoops for you to jump through, I’d be doing that. I am not, and it’s not feasible, and you could just ignore them, so it’s a stupid discussion that we need never have. I am just glad you are a reader, and that you visited today, and I hope you come back again regularly. Thank you for not plagiarizing or misappropriating; those are all I do ask, and I appreciate that you do not do them.

I hope more of us, in more situations, will require a better reason for obedience than “because a corporation tells us so.”

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2 thoughts on “By viewing our site, you agree to reams of crap”

  1. Good article, as such, but it feels very idealistic. The TOS one encounters are accompanied by a box which requires a check mark from the user before proceeding into the site. And if a user has a legitimate choice, it’s easy to simply shrug and move on to a competitor. But sometimes the site is for a utility for which there is no alternative. Or the user is assigned an task by their employer which does not leave a choice (at least not a sane one). These are just two examples of the consumer not having a good choice. They are effectively coerced into using the website on the terms the company demands. By checking the box, one agrees to the TOS, but not checking the box means the website can’t be used. As far as lawsuits, that is more for the company to protect itself against customers. Often, by checking the box, the customer gives up their right to file suit, and instead agrees to binding arbitration. And, the arbitrater can be in the employ of the company. Consumer Reports has done stories on this issue and there is not a simple or good remedy for consumers. Our laws need to keep up with technology! And when this does not happen, the exploitation of technology by a filthy rich company is inevitable.

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    1. It is idealistic in that it advocates avoiding the conflation of ‘right’ with ‘legal.’ I didn’t address the check boxes in the article, but I should have. In short, I check the box, but I consider it an agreement presented in bad faith, thus I am no more bound by it than I am by a coerced oath.

      Liked by 1 person

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