Article from The Nation: "Small Print, Big Problem (Part II: Remedies)"

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Article from The Nation: "Small Print, Big Problem (Part II: Remedies)"

On 2018-05-18 13:49:37 UTC, Deleted wrote:

imported from 2568

On 2018-05-23 12:40:54 UTC, Deleted wrote:!msg/tosdr/W-vYnhBcpGg/fsbcjsNltq8J Hi Theresa,

Firstly, I'd like to apologise; upon re-reading what I sent you, I feel I
may have come across a bit aggressive! It's only because this is what I
studied and did my master's dissertation on at Cardiff (and hopefully at
some point in the future I'd like to return and get my PhD looking at the
same issues, but that's neither here nor there at the moment).

Secondly, and more importantly, I wanted to offer my services as an
in-persion liaison between Fair Contracts and ToS;DR. I'm from St. Louis,
and although I won't be stateside until June, as Chicago is only a 5-6hr
train ride away, I thought that might be a good idea. Obviously I don't
think any of us are 100% sure what this collaboration will turn into, and
thus what my role as liaison would entail, but considering that we all work
remotely at the moment, being able to be in the same room at some point
would probably be a good idea!

Until June, you're more than welcome to keep in touch via email/skype (I
think Google video allows for conference-call situations for free, but I'd
have to check)/whatever other means you prefer. Looking forward to working


On Saturday, March 16, 2013 9:17:28 PM UTC+1, wrote:
> Dear Michiel, Ian and anyone else reading this:
> First, thank you for reaching out! And second, apologies for not having
> reached out to you sooner (I learned of you recently and do have you
> listed under organizations working on some facet of this problem on our
> website I have been working on this for a while.
> And that is why I know that Ian is absolutely right in everything he says
> below about the research and possible solutions (a blog snapshot cannot
> capture the many things discussed so the focus on the legislation may have
> given the impression that those examples were the scope of the solutions
> proposed by us, but they are not).
> As Rick Perlstein did note - I see consumers having to solve the problem
> as an intermediary step in the absence of contract law, courts,
> regulators, or the corporate community doing anything at a macro level to
> solve these problems across multiple industries.
> I view the problem as the outgrowth of a disclosure regulatory paradigm
> gone amuck and a tremendous imbalance of power between corporations and
> consumers, with American courts favoring corporations under the rubric of
> contract law as applied to these standard form contracts. And Rick did
> note that I don't think it is rational for consumers to have to be the
> ones to sort it all out, and be left defenseless in the intervening
> absence of broader solutions, without market options, or wronged at the
> end of the day like the 92 year old in the nursing home whose estate was
> denied her access to justice in the courts.
> The legislation in Illinois was simply a test case example (not the end
> goal solution) which I use to show state and federal regulators and
> academicians (The Federal Trade Commission/the Consumer Financial
> Protection Bureau/Elizabeth Warren/Rich Cordray, and others sympathetic to
> these issues) that even in a "Blue" state with an aggressive and ambitious
> Attorney General, both houses of the legislature and the Governor
> Democrats, that it was unlikely for anyone to get even the most basic
> reform accomplished....just simple disclosure up front. Indeed, the Plain
> Language Task Force set up here in 2009 has yet to meet (and is not even
> fully appointed)!
> I don't think disclosure or even "better" disclosure alone is the end-game
> solution here.
> The Consumer Contract Right to Know Act was an outgrowth of what I saw
> happening with the ToS initiative and discussions with researchers in
> academia --- there is a focus on online contracts, because those are the
> ones most readily available for scrutiny (and some academicians told me
> this actually skews the research because what professor wants to spend
> time curating a statistically significant sample of contracts that are not
> online?), and arguably already directed to a more sophisticated/literate
> audience or at least those with access to online resources.
> Have you ever tried to obtain and scrutinize nursing home contracts,
> student loans, health insurance policies, or payday loans, for example?
> When I started (in 2009) to send out waves of smart and capable law
> students to "curate" as you are doing....they would come back quasi empty
> handed because it was hard to even obtain the boilerplate without being
> required to first fork over your credit card or an extensive array of
> documents so as to engage in the underlying transaction...they were
> stymied in just getting access to the terms. I personally have spent
> hours in this quest to see how corporate America treats consumers and it
> is appalling. Even industries purporting to regulate at the state or
> federal level did/do not have regulators that even require copies of the
> terms being given to consumers.
> The online world is way ahead of game in that at least they have terms
> available for ToS and Tos;DR to look at....
> That said, I really like your A-E system (as the restaurant hygiene grade
> format/model is one of the few to show that it works immediately in
> simplicity/comprehension) and we too have developed a variety of symbols
> that could be used to apply to terms. There is even some overlap of the
> terms we are looking at though we are focused more on the terms I
> mentioned to Rick, such as those that cut off consumer redress.
> I have also floated the idea of a "fair trade" seal that a certain symbol
> means not that the contract is fair, but that it doesn't contain x,y,z
> rights-limiting terms; others have suggested having a vanilla/stripped
> down consumer protection model contract (say the "A contract" for each
> industry, that could be available, and then if you want to contract for
> curlicues that expand the seller's rights at the expense of the consumer's
> rights, those could be sold for less etc. and labeled as the "B" "C" "D"
> or "E" contract version so that people know that if you want no rights at
> all, go ahead and buy the E contract. If you don't want grandma to give
> up her rights to not be abused in the nursing home, or don't want to waive
> the seller's liabilities for everything, buy the A contract. If it is
> labeled and standardized as the "A contract" you won't have to spend four
> hours with a lawyer reading it.
> There are other ways as well that we could discuss but would entail
> changing presumptions in the law, whether these contract terms are
> assessed under tort or contract law, and other outcomes, likely to be even
> more glacial than a consumer-based bottom up intermediary solution such as
> crowd-sourcing for better information in the meantime...
> Which is why I suggested to Rick the crowd-sourcing idea, and think we
> should try to collaborate in any way possible if you are interested in
> doing so...
> Are you all overseas? I am based in Chicago, and similar to you, am one
> full time person with volunteers trying to be catalytic and leverage at
> the federal and state level what can be done to address these problems. I
> have also focused on the United States, as that is a big enough problem,
> but we have also done some research internationally and are looking for
> models/solutions that could work across the cyber and non-cyber world as
> you noted....
> I don't have the technology skills to make happen what I think should
> happen, but I am a lawyer with access to other lawyers/professors and
> practitioners working on these issues from various angles, and, perhaps
> more importantly, am armed with a desire to find solutions to these
> problems to make these transactions/outcomes better for people.
> Do you Skype? Or how do you all communicate and are you the people named
> on your website or others too? I have a lot of questions about what you
> are doing/have found so far in your project.
> All the best, and thank you again, I am thrilled to meet you and will let
> Rick Perlstein know we have touched based prompted by his write up.
> Theresa
> > Cool!
> > On 2013-03-16 18:27, Ian McGowan wrote:
> >> That "Right to know" was actually founded on a number of incorrect
> ideas, namely that people would be willing to take the time out to
> "comparison shop" similar products based on their ToS. They just
> aren't. My research proved it, as did research that I cited in mine.
> People don't care unless there's money involved or if there's some sort of
> major risk (again, usually financial). So that bill was never going to
> pass, and even if it did, based on all kinds of previous research, it
> wouldn't matter because the bottom line is that people don't care enough
> to be informed. They need an incentive. This is on top of the fact that,
> duh, companies don't want to be put in a
> >> position where a competitor has access to their ToS.
> >> I'd also like to mention that the quip about "twenty-seventh grade
> reading level", while it might be accurate...there's just so much wrong
> with readability scores, which is how they got that
> >> information.
> >> Readability scores are based on number of syllables, sentence length,
> and document length. They have next to nothing to do with
> >> comprehension. A young adult novel probably has a
> >> higher-than-expected
> >> readability score based on the ratios of syllables/sentence
> >> length/document length, yet I doubt very many people have difficulty
> understanding them.
> >> Contracts are known to use obtuse and ambiguous language; but that is
> actually a characteristic of legal language in general. More people know
> how to recite the Miranda Warning than actually understand what it means,
> and I can guarantee you that it isn't written at a
> >> twenty-seventh grade reading level.
> >> So while I like the initiative, I kind of wish they did a bit more
> research before publishing this article. They totally miss the point as to
> WHY people don't read contracts, and act like they would if they
> >> were written in plain language. Maybe they would be more likely to do
> so if they were written in plain language, but this article seems to
> consider the only problem to be length and readability, but there's
> actually much more to it than that.As a side note, and I'm seriously just
> putting this out there for discussion, given that our goals seem to be
> similar, it might be a good idea to start a discussion with them
> >> on any kind of collaboration. After a brief glance, it looks more like
> they look at paper contracts compared to our online services, but
> still. Anyway, just putting it out there.
> >> On Saturday, March 16, 2013 11:01:41 AM UTC+1, Ian McGowan wrote:
> >>> My dad actually forwarded this to me recently, and it seems somewhat
> in line with what we're trying to do here at ToS;DR. I'd like to see what
> people think about it, so if you have time (it's not very long), give it a
> read and post a response here.
> >>> Here's the link:
> >>
> >>> [1]
> >>> Ian
> > "So let’s aggregate. Want to help? Want to be one of the coders to
> create Yelp for contracts? Go to Get in touch with
> Theresa. Because, like Lonnie Ray Atikinson raps, “ain’t no freedom if
> > we ain’t free of the fine print.”
> > i hereby CC'ed them. Hi Theresa! We are a crowd-reading project for
> fineprint. We focus on online services, but there's no reason not to
> include offline products like bank accounts etcetera. There is already a
> fork for API services (basically, the business-to-business instead of
> business-to-consumer version of online services).
> > we have been working on this for about a year, and already have
> > hundreds of data point. A data point is "service X has a clause Y in
> their terms of service, and that is good/bad/neutral". Based on these data
> points we rate all services from 'class A' (good fineprint) to 'class E'
> (bad fineprint).
> > We got a lot of press attention in September, and raised about 25,000
> USD through a crowdfunding campaign. All this money was paid by
> > individuals (and also a few companies), who care enough about this topic
> to donate money in exchange for a few stickers or a T-shirt. We are now
> using that money to run the project for about a year, and by that time we
> will hopefully have an established and proven portfolio of reviews, and
> will be able to get money for the next year in different ways (for
> instance from foundations).
> > We are many volunteer reviewers, plus roughly 1 full-time "curator" (who
> processes all the data we collect, and guards the quality and
> consistency of our data points and reviews), and roughly 1 full-time
> programmer.
> > We also joined in on the tosback project from eff, which checks
> > hundreds of websites each day to detect if any of them are silently
> updating their contracts (ref. "unilateral modification by the covered
> entity to the disadvantage of the consumer without explicit consumer
> consent after the execution of the contract.")
> > so, i think we are the crowd-readers and programmers you are looking
> for, let us know how you want to cooperate! :)
> > You can read everything about our project on
> > Cheers,
> > Michiel

On 2018-05-23 12:41:04 UTC, Deleted wrote:!msg/tosdr/W-vYnhBcpGg/my6t8gPgCr8J My dad actually forwarded this to me recently, and it seems somewhat in
line with what we're trying to do here at ToS;DR. I'd like to see what
people think about it, so if you have time (it's not very long), give it a
read and post a response here.

Here's the link:


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On 2018-05-30 12:50:14 UTC, Deleted wrote:

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