8 ms·

Automatically opting-in customers to a more restrictive TOS is pretty suspect, especially given the timing. IANAL, but I'm pretty sure that a court would not al

Automatically opting-in customers to a more restrictive TOS is pretty suspect, especially given the timing. IANAL, but I'm pretty sure that a court would not allow that, given that the TOS was changed AFTER the breach and it's pretty clear that the company is trying to avoid legal issues after-the-fact. I would expect the court would evaluate any breach under the TOS that was in effect at the time of the breach, rather than under a new (and arguably suspect one) that was put in place after it, arguably in an attempt to "rewrite history".

dannyw 3y ago
Federal Arbitration Act severely, and nearly completely, ties courts hands around throwing out binding arbitrations. Of course, if people don’t accept the new terms, they are still bound by the one ones. But if you don’t opt out…
- kelthan 3y ago
  But having the company update a TOS that automatically removes rights from the consumer, after the consumer already agreed to a TOS that didn't previously restrict those rights is likely not going to hold up in court, either. Especially when the TOS changes were made after an event likely to trigger litigation. This isn't a case of a minor change to consumer rights in the TOS like changing who would arbitrate a case. It's a significant restrictive change to the rights of the customer in favor of the company. And it was made after a security breach that affected a huge portion of the companies clients which is likely to trigger lawsuits of the form that the TOS now seeks to restrict. This is clearly a case of attempting to close the barn door after the horse was spotted in the next county over.
- BobaFloutist 3y ago
  The good news is binding arbitration has some significant downsides for corporations - look up "mass arbitration".
thereddaikon 3y ago
And just because a TOS says something doesn't mean it will necessarily hold up in court. They aren't law.
- kelthan 3y ago
  Right. Also, the practice of having a sticker on a shrink-wrapped box of software that read "By opening this package you agree to the Terms of Service contained within", where the TOS was inside the box that you needed to open the package to read, was deemed unenforceable back in the 90's. It's the reason that TOS' are now displayed as a pop-up during installation. Not that many more people actually read them before installing the software, but at least they are given the option to. I suspect that a competent lawyer could fairly easily argue that this "automatic opt-in" is the same thing in a slightly different format.
throwaway092323 3y ago
They probably know that it doesn't hold water legally. The hope is to victim blame as much as possible so that fewer people sue them in the first place. The next step will be to "remind" people about the TOS that they totally agreed to.
- lp0_on_fire 3y ago
  Exactly. Same reason construction vehicles have "Stay back 200 feet: not responsible for broken windshields" written on the back.
  - constantly 3y ago
    Yep. A small tangent for anyone who has seen these: they’re very clearly not specifically enforceable. I got a window banged up by things falling off a truck with this signage, and the first thing they said when I called their “How Am I Driving” number the first thing they said was that they were not responsible citing this sign. Fortunately that sign was non binding. :)
    - lelandfe 3y ago
      “If you can read this bumper sticker, the occupants of your vehicle agree to…”
      - Rayhem 3y ago
        "Private sign, DO NOT READ"
    - jstarfish 3y ago
      Georgia (state) takes it a step further. They wrote an exemption to the license plate law that allows dump truck owners to display the plate only on the front of the vehicle. Makes it that much harder to hold them accountable.
      - sonicanatidae 3y ago
baryphonic 3y ago
Cornell's law school has a pretty good guide to these "adhesion contracts" such as web TOS.[0] This alteration strikes me (IANAL) as running the risk of being unconscionable. If the contract change is unconscionable, then the new terms mandating binding arbitration are void. Again, IANAL. Just my opinion as a citizen, not legal advice. Seek competent legal advice before taking legal action. [0] https://www.law.cornell.edu/wex/adhesion_contract_(contract_of_adhesion) https://www.law.cornell.edu/wex/adhesion_contract_(contract_...
smcl 3y ago
I'd say it's more than suspect, what's the point of agreeing to a terms of service if they can change after you agree to them?
- huytersd 3y ago
  They usually put that exact thing into the ToS. The right to change it at any time.
  - smcl 3y ago
    Ahh ok this sounds like a thing that’s OK in the USA but not EU :-/
    - smcl 3y ago
      Ahh ok this sounds like a thing that’s OK in the USA but not EU :-/ NOTE: instead of downvoting as a knee-jerk defense of USA, just reflect on whether you'd benefit from some slightly better consumer protection laws.
    - raphman 3y ago
      Indeed. > "Besides the general requirements of 'good faith' and 'balance', the EU rules contain a list of specific contract terms that may be judged unfair. > Here are some situations where contract terms may be judged unfair under EU rules: > [...] > - Terms which allow you to alter a contract unilaterally unless the contract states a valid reason for doing so." https://europa.eu/youreurope/business/dealing-with-customers/consumer-contracts-guarantees/consumer-contracts/index_en.htm https://europa.eu/youreurope/business/dealing-with-customers...
    - smcl 3y ago
      NOTE: instead of downvoting as a knee-jerk defense of USA, just reflect on whether you'd benefit from some slightly better consumer protection laws.
  - wongarsu 3y ago
    Just because they write that doesn't make it legally enforceable. You can't agree to terms you don't know. Which is why many services will haunt you to explicitly agree to the new ToS when you next log in. And even if you click agree there are legal questions about how much that can change about your past relationship, and what kind of changes you can legally make.
wackycat 3y ago
Right! If this were a law rather than TOS it's the whole ex post facto situation.
everforward 3y ago
They ought to be evaluated as if no TOS exists. Given the clear intent to defraud customers by misrepresenting the contract they were bound by, the claims should be evaluated under the TOS most favorable to the plaintiffs. The most favorable TOS is the one that's invalid because 23andMe didn't get anyone to actually agree, ergo the claims are evaluated as if no TOS exists. This is an attempt to undermine consumer protection laws, and the government should treat it as a direct attack. Other companies are watching. The government needs to send a clear message that this won't be tolerated before it spreads, becomes the status quo, and leaves many consumers believing that they don't have any rights or protections. The head of legal should also be disbarred under American Bar Association rule 1.2(d): > (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. This reads as clear contract fraud in the factum [1]. Customers are told that they're bound by new contract terms, despite that 23andMe never got agreement, nor tried to get agreement, nor even know whether customers have read the new contract. I can't fathom any other reasonable interpretation of the situation. They created a fraudulent contract hoping to confuse other entrants to prior versions of the contract, and intend to benefit from that confusion. It seems clear to me. They are attempting to undermine the legal system, and the ABA needs to deal out swift punishment as one of the protectors of that system. 1: https://en.wikipedia.org/wiki/Fraud_in_the_factum https://en.wikipedia.org/wiki/Fraud_in_the_factum
- underlipton 3y ago
  There should a (modern version of a) letter-writing campaign to pressure the government to take this seriously. The literal core of one's being is on the line.
- bertil 3y ago
  I’m curious if their lawyer has a defense in saying that they advised against it, but were told to try it anyway. I’m even more curious if the change of ToS alone could be grounds for a trial, even a class action—making the risk not even worth the try. Even harder to swallow: discover that the lawyers using the class action got hold of the data from the leak and used that in their marketing.
pbhjpbhj 3y ago
That should be a crime in itself. Looks a lot like fraud.
sonicanatidae 3y ago
I would like to think they will be nailed to the wall, but the current is that they will get a pittance fine, at best, before accepting their well earned bonuses. I hate this timeline.
lozenge 3y ago
> IANAL, but I'm pretty sure that a court would not allow that You and a lot of the people who replied to you seem to be confusing what is unjust with what is illegal. You can't use one to deduce the other.
Affric 3y ago
Yep. Having defended contracts that legally the company could novate the circumstances that lead to the notation had to be either outside of our control with a third party changing our underlying costs or the first and second parties failing to agree a new contract and a standard contract that was already defined being put in place. This was later deemed unfair and the standard contract was made much cheaper. Ha! My point being that in Australia my vibe is that this will be looked upon in a very negative light by courts and any regulators.
amelius 3y ago
What if they sell their entire business to a subsidiary?
d3w4s9 3y ago
"a court would not allow that" I don't know where you have been the last few years, but I am pretty sure things like that happen all the time, based on the emails I received regarding ToS updates. And I have never heard any company got into trouble in court. Maybe public opinion, but that's it.
gentleman11 3y ago
Any contract that can be changed at the whim of one party should automatically be invalid
jalapenos 3y ago
Have they ever implied this would apply to accrued causes of action though? Would like a laywer to correct me if wrong, but these terms would only apply to any future events, not to the hacks that happened under the previous terms, for which they've already accrued the right to sue in a court (or whatever those terms said) regarding that hack, and 23andMe hasn't really implied otherwise just by updating its terms? If they wanted that, they'd have to have explicitly included language like "by continuing to use our services after this notice, you covenant not to sue in court for any prior causes of action" or the like?

dannyw 3y ago

Federal Arbitration Act severely, and nearly completely, ties courts hands around throwing out binding arbitrations. Of course, if people don’t accept the new terms, they are still bound by the one ones. But if you don’t opt out…

kelthan 3y ago
But having the company update a TOS that automatically removes rights from the consumer, after the consumer already agreed to a TOS that didn't previously restrict those rights is likely not going to hold up in court, either. Especially when the TOS changes were made after an event likely to trigger litigation. This isn't a case of a minor change to consumer rights in the TOS like changing who would arbitrate a case. It's a significant restrictive change to the rights of the customer in favor of the company. And it was made after a security breach that affected a huge portion of the companies clients which is likely to trigger lawsuits of the form that the TOS now seeks to restrict. This is clearly a case of attempting to close the barn door after the horse was spotted in the next county over.
BobaFloutist 3y ago
The good news is binding arbitration has some significant downsides for corporations - look up "mass arbitration".

thereddaikon 3y ago

And just because a TOS says something doesn't mean it will necessarily hold up in court. They aren't law.

kelthan 3y ago
Right. Also, the practice of having a sticker on a shrink-wrapped box of software that read "By opening this package you agree to the Terms of Service contained within", where the TOS was inside the box that you needed to open the package to read, was deemed unenforceable back in the 90's. It's the reason that TOS' are now displayed as a pop-up during installation. Not that many more people actually read them before installing the software, but at least they are given the option to. I suspect that a competent lawyer could fairly easily argue that this "automatic opt-in" is the same thing in a slightly different format.

throwaway092323 3y ago

They probably know that it doesn't hold water legally. The hope is to victim blame as much as possible so that fewer people sue them in the first place. The next step will be to "remind" people about the TOS that they totally agreed to.

lp0_on_fire 3y ago
Exactly. Same reason construction vehicles have "Stay back 200 feet: not responsible for broken windshields" written on the back.
- constantly 3y ago
  Yep. A small tangent for anyone who has seen these: they’re very clearly not specifically enforceable. I got a window banged up by things falling off a truck with this signage, and the first thing they said when I called their “How Am I Driving” number the first thing they said was that they were not responsible citing this sign. Fortunately that sign was non binding. :)
  - lelandfe 3y ago
    “If you can read this bumper sticker, the occupants of your vehicle agree to…”
    - Rayhem 3y ago
      "Private sign, DO NOT READ"
  - jstarfish 3y ago
    Georgia (state) takes it a step further. They wrote an exemption to the license plate law that allows dump truck owners to display the plate only on the front of the vehicle. Makes it that much harder to hold them accountable.
    - sonicanatidae 3y ago

baryphonic 3y ago

Cornell's law school has a pretty good guide to these "adhesion contracts" such as web TOS.[0] This alteration strikes me (IANAL) as running the risk of being unconscionable. If the contract change is unconscionable, then the new terms mandating binding arbitration are void. Again, IANAL. Just my opinion as a citizen, not legal advice. Seek competent legal advice before taking legal action. [0] https://www.law.cornell.edu/wex/adhesion_contract_(contract_of_adhesion) https://www.law.cornell.edu/wex/adhesion_contract_(contract_...

smcl 3y ago

I'd say it's more than suspect, what's the point of agreeing to a terms of service if they can change after you agree to them?

huytersd 3y ago
They usually put that exact thing into the ToS. The right to change it at any time.
- smcl 3y ago
  Ahh ok this sounds like a thing that’s OK in the USA but not EU :-/
  - smcl 3y ago
    Ahh ok this sounds like a thing that’s OK in the USA but not EU :-/ NOTE: instead of downvoting as a knee-jerk defense of USA, just reflect on whether you'd benefit from some slightly better consumer protection laws.
  - raphman 3y ago
    Indeed. > "Besides the general requirements of 'good faith' and 'balance', the EU rules contain a list of specific contract terms that may be judged unfair. > Here are some situations where contract terms may be judged unfair under EU rules: > [...] > - Terms which allow you to alter a contract unilaterally unless the contract states a valid reason for doing so." https://europa.eu/youreurope/business/dealing-with-customers/consumer-contracts-guarantees/consumer-contracts/index_en.htm https://europa.eu/youreurope/business/dealing-with-customers...
  - smcl 3y ago
    NOTE: instead of downvoting as a knee-jerk defense of USA, just reflect on whether you'd benefit from some slightly better consumer protection laws.
- wongarsu 3y ago
  Just because they write that doesn't make it legally enforceable. You can't agree to terms you don't know. Which is why many services will haunt you to explicitly agree to the new ToS when you next log in. And even if you click agree there are legal questions about how much that can change about your past relationship, and what kind of changes you can legally make.

wackycat 3y ago

Right! If this were a law rather than TOS it's the whole ex post facto situation.

everforward 3y ago

They ought to be evaluated as if no TOS exists. Given the clear intent to defraud customers by misrepresenting the contract they were bound by, the claims should be evaluated under the TOS most favorable to the plaintiffs. The most favorable TOS is the one that's invalid because 23andMe didn't get anyone to actually agree, ergo the claims are evaluated as if no TOS exists. This is an attempt to undermine consumer protection laws, and the government should treat it as a direct attack. Other companies are watching. The government needs to send a clear message that this won't be tolerated before it spreads, becomes the status quo, and leaves many consumers believing that they don't have any rights or protections. The head of legal should also be disbarred under American Bar Association rule 1.2(d): > (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. This reads as clear contract fraud in the factum [1]. Customers are told that they're bound by new contract terms, despite that 23andMe never got agreement, nor tried to get agreement, nor even know whether customers have read the new contract. I can't fathom any other reasonable interpretation of the situation. They created a fraudulent contract hoping to confuse other entrants to prior versions of the contract, and intend to benefit from that confusion. It seems clear to me. They are attempting to undermine the legal system, and the ABA needs to deal out swift punishment as one of the protectors of that system. 1: https://en.wikipedia.org/wiki/Fraud_in_the_factum https://en.wikipedia.org/wiki/Fraud_in_the_factum

underlipton 3y ago
There should a (modern version of a) letter-writing campaign to pressure the government to take this seriously. The literal core of one's being is on the line.
bertil 3y ago
I’m curious if their lawyer has a defense in saying that they advised against it, but were told to try it anyway. I’m even more curious if the change of ToS alone could be grounds for a trial, even a class action—making the risk not even worth the try. Even harder to swallow: discover that the lawyers using the class action got hold of the data from the leak and used that in their marketing.

pbhjpbhj 3y ago

That should be a crime in itself. Looks a lot like fraud.

sonicanatidae 3y ago

I would like to think they will be nailed to the wall, but the current is that they will get a pittance fine, at best, before accepting their well earned bonuses. I hate this timeline.

lozenge 3y ago

> IANAL, but I'm pretty sure that a court would not allow that You and a lot of the people who replied to you seem to be confusing what is unjust with what is illegal. You can't use one to deduce the other.

Affric 3y ago

Yep. Having defended contracts that legally the company could novate the circumstances that lead to the notation had to be either outside of our control with a third party changing our underlying costs or the first and second parties failing to agree a new contract and a standard contract that was already defined being put in place. This was later deemed unfair and the standard contract was made much cheaper. Ha! My point being that in Australia my vibe is that this will be looked upon in a very negative light by courts and any regulators.

amelius 3y ago

What if they sell their entire business to a subsidiary?

d3w4s9 3y ago

"a court would not allow that" I don't know where you have been the last few years, but I am pretty sure things like that happen all the time, based on the emails I received regarding ToS updates. And I have never heard any company got into trouble in court. Maybe public opinion, but that's it.

gentleman11 3y ago

Any contract that can be changed at the whim of one party should automatically be invalid

jalapenos 3y ago

Have they ever implied this would apply to accrued causes of action though? Would like a laywer to correct me if wrong, but these terms would only apply to any future events, not to the hacks that happened under the previous terms, for which they've already accrued the right to sue in a court (or whatever those terms said) regarding that hack, and 23andMe hasn't really implied otherwise just by updating its terms? If they wanted that, they'd have to have explicitly included language like "by continuing to use our services after this notice, you covenant not to sue in court for any prior causes of action" or the like?