The Missouri case of the mother who taunted a teenage girl over the Internet until she committed suicide has created a legal question quite apart from the facts of that case. Due to where and how it was prosecuted, the verdict may create a precedent wherein the criminal justice system can be used to prosecute civil law cases. You’ll have to find the details of the case elsewhere, but basically what happened is that when Missouri decided it couldn’t put forward an actual criminal case, the district attorney in Los Angeles prosecuted the case on the basis that the communications went through MySpace’s servers in California, and therefor the mother violated MySpace’s terms and conditions, and in doing so crossed state lines, and blah, blah, blah.
I tell you this to draw your attention to terms and conditions. We need to get rid of them. We probably need to completely overhaul our legal system to do it, but that’s ok. I’m up for the challenge if you are.
Here’s our problem. We want our corporate friends to be good, so we want to have a legal system that allows us to go after them when they are bad and A) make us whole and B) hurt them enough to convince them to be good. Unfortunately, that same legal system can be used to abuse them and hurt them when they really haven’t done anything that wrong. It also gives them, too often, a get out of jail free card in the shape of “terms and conditions” agreements, shrink wrap licenses, etc.
And we’ve gotten into a mouse / mouse trap thing with them. First, someone figures out how to sue the corporation 1,500 miles from where they are. So corporations all add clauses to their contracts about where cases will be tried. Then somebody figures out how to sue them because they got hurt trying to use their knife as a screwdriver. So corporations all add “fitness for use” clauses to their terms and conditions. Then somebody figures out how to use children as a legal weapon against them. So the corporations (Google and many other popular websites have done this) add clauses in their terms and conditions that users must be 18 years or older. If a 9 year old gets hurt on their site, they are no longer responsible because the 9 year old violated the terms and conditions of the site. Had the nine year old heeded them, he wouldn’t have gotten hurt.
You know as well as I do that the long terms and conditions agreements on so many things are bypassed as a matter of common practice. Even when we have to push a button agreeing that we read them, we haven’t read them. And they know that. The button is only there because somebody figured out a way to sue them because someone hadn’t acknowledged that they had read the terms and conditions.
We have created an impossible situation for both consumers and corporations. They cannot possibly predict all of the ways we might come at them and we cannot possibly imagine what limitations have been put on our use of whatever it is we’re using by the terms and conditions agreement. We are both in a legal quagmire.
The solution is that we need to step back from details and try to find principles to replace them with. We want our corporations to be good and to treat us fairly. We don’t want them to take advantage of us. Likewise, we need to be good and treat the corporations fairly. We shouldn’t be using a legal system that allows us sneak up on them and “gotcha!” from left field.
Especially for consumer transactions, where legions of lawyers cannot be brought to bear on day to day nonsense, I think nearly all, if not all, legalese has to be banned. In its place we need standards of conduct. If there is a problem over where corporations will be sued, lets just make up a standard and write it into the law so it doesn’t have to go into a contract. Lets acknowledge that search engines and portal sites are obviously going to be used by children, so they can’t write into their terms and conditions that they can’t. And lets also acknowledge that children are going to use search engines exactly like adults, so we’re going to need some sort of exception to the issue about minors not being able to enter into binding contracts. Rather than each website having to clarify that they are not responsible for what we do with their site, we need to figure out the principles that can be applied across the board. Corporations can’t be held responsible when people abuse their sites. Corporations also can’t build sites that are designed to be abusive or that leave obvious, discovered opportunities for abuse unresolved.
Believe it or not, this idea isn’t unheard of. It would be quite possible for each state to use vastly different standards for their road signs. Vermont might like to stick with the black and white rectangular speed limit signs, but New Jersey might decide that speed limits shall be on maps posted on toilet stall doors in turnpike rest areas… and give every unsuspecting Vermonter who couldn’t find a speed limit sign a hefty ticket once they’re half way across the state. But we don’t. Rather than create convoluted ways for states to hide speed limits and equally convoluted ways for drivers to figure them out, we’ve created standards… all speed limit signs are black text on white rectangular backgrounds, generally of a certain size, position, and even font. And it works great.
We can do the same with software, websites, music, electronics, toasters, car seats, etc. The basic principles are what we need to figure out… not page after page of tiny legalese.