Mobile-security firm F-Secure conducted a social experiment in London whereby users who connected to a Wi-Fi network accepted an outlandish terms-of-service agreement: they agreed to give up their firstborn to the company. The mildly humorous experiment showed something almost everyone knows: no one reads those ridiculously long, often inscrutable pages of legal mumbo jumbo. According to IEEE Spectrum, six users agreed to the terms of the rigged hotspot. “The results of a social experiment in London suggest that on-the-go Internet users are not being as careful as they should be when connecting to unfamiliar networks.” But neither are most users particularly careful with regard to most other online activities.
Whether the agreement-by-action approach of terms-of-service agreements (as well as many end-user license agreements, such as come with most software) is defensible is unclear. One could easily imagine all manner of scenarios that could ensnare people into crazy arrangements using this approach, as the F-Secure experiment demonstrated. In the case of software, for instance, an “I bought it, so it’s mine unconditionally” approach seems more reasonable apart from a more formal and recognizable contract. As for terms of service, perhaps the best legal resolution is to view them as purely for indemnification (excepting matters of fraud) rather than for imposing any otherwise enforceable obligations.
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