US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

> <DmncAtrny> I will write on a huge cement block "BY ACCEPTING THIS BRICK THROUGH YOUR WINDOW, YOU ACCEPT IT AS IS AND AGREE TO MY DISCLAIMER OF ALL WARRANTIES, EXPRESS OR IMPLIED, AS WELL AS DISCLAIMERS OF ALL LIABILITY, DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL, THAT MAY ARISE FROM THE INSTALLATION OF THIS BRICK INTO YOUR BUILDING."

<DmncAtrny> And then hurl it through the window of a Sony officer

<DmncAtrny> and run like hell

I get this periodically on our overly-computerized car: Here are new T&C, click yes to agree. You can make the screen go away temporarily, but there is no options to say "no, I disagree".

"I do not agree with your new TOS and will continue under your old TOS, and I will continue to use your service". And see when they will close your account down.

  The TOS are changing from 1st of June as below: 
  - are your belongings are now ours 
  - please move out of your->our house
  - you cannot use the service anymore

Obviously, this doesn't exist in the USA but does exist in (for example) the Netherlands. I would recommend lobbying in your country for such laws since in practice the vast majority of contracts like these that people face aren't actually negotiated nor negotiable.

sending email + user using does not in any sane way guarantee that the user did even know about it

and if usage implies consent how do you even delete you account if you disagree with contract changes, as that requires logging in which can easily be maliciously seen as using the application as any landing page contains app functionality

And target some user with some money to lose and sue them for it.

Suppose I start with simple TOS at the beginning: do not use in criminal scenarios

Then I change it to: do whatever you do with it, you are responsible for it anyways

I can even do this per sign-up, show TOS which makes sense, then next day send new TOS to allow everything

TOS simultaneously became extremly important, commanding CEO attention and became completely ritulized.

I'm surprised that the legal profession has tolerated this is escalation of dysfunction.

When I tried to resolve it a couple of years ago I received boilerplate emails informing me that the migration period had ended.

So if you deal with companies that simply don’t honor their contracts—companies like Microsoft and Mojang—you don’t even need use to imply consent, because they can just lock you out of your purchases and tell you to pound sand.

Call me when the only court that matters makes a move.

This clearly seems caused by a misdelivery, not by the party's ignorance. Why the heck is the court completely oblivious to that fact when weighing the facts on each side? And the court certainly seems to take into account common practices in every other aspect of the case except that most crucial one... why?! No explanation whatsoever? Would this really survive on a hypothetical appeal?

> As Tile users, each Appellee provided an email address during account registration, and should have expected to receive relevant updates there while the account was active.

Well yes, they did, but:

> Because “there is very little empirical evidence regarding” Internet users’ expectations, the focus of this inquiry is “on the providers, which have complete control over the design of their [apps and] websites and can choose from myriad ways of presenting contractual terms to consumers online.”

...Tile should've expected that its email might go into spam, right? Shouldn't the court at least mention this, even if it doesn't lend it any weight?

> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” and we do not hold that notice by mass email establishes inquiry notice in every case.

At least they say their ruling doesn't generalize...

> https://en.wikipedia.org/wiki/United_States_Court_of_Appeals...

It seems less likely to (randomly) have the same panel on two higher profile cases so close to each other:

> https://courthousenews.com/ninth-circuit-keeps-block-on-dhs-...

So I'm wondering if it is some procedural thing I am not privy to?

> Broad did not locate the Oct. 2023 Notice until January 2024, when she affirmatively searched for the email and found it in her spam folder. […]

> Doe “never knew that Tile sent” the Oct. 2023 Notice and so never “read any revised or updated Terms.”

> The district court held that neither Broad nor Doe assented to the Oct. 2023 Terms.

So then it was challenged, and the appeals court gets into the weeds: were the Appellees “on inquiry notice of the Oct. 2023 Terms”? (“Inquiry notice” is clearly a specific legal term, I can’t comment on its precise meaning.)

The entire thing seems to hinge on whether appropriate notice was given: it seems to be accepted by all parties and case law that “continuing to use after such-and-such a date implies consent” is okay. (This is explored at the end of the document: simply using the app is treated as “unambiguously manifesting assent”, presuming inquiry notice.)

The court decides: yes, it was sent in the appropriate way and clearly marked and described. And

> Although the email did not say specifically that the arbitration agreement would be updated, reasonable notice does not require the email to discuss every revision.

They do say

> Tile could have done more to ensure that all its users were on inquiry notice of the Oct. 2023 Terms. Tile could, for example, have interrupted users’ next visit to the Tile App with a clickwrap pop-up notice. […] Because Tile should have known that at least some of its users do not closely monitor email, […] and Tile should have furnished additional notices, this factor weighs against finding inquiry notice.

They conclude: two factors for, one against, and thus determine that inquiry notice was received, although Tile didn’t handle things properly themselves, and should have done more.

But they avoid setting this as universal precedent:

> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” […] and we do not hold that notice by mass email establishes inquiry notice in every case.

—⁂—

This is my interpretation from a brief read of this interesting-sounding document. I’m neither a lawyer nor American. My understanding is almost certainly incomplete. I think I have avoided inserting any interpretation of my own, others can do that.

I have had emails never delivered to me, not due to my own fault but the service provider filtering it away before I could do anything. It is also dangerous to assume "use implies consent". I am sure there are other ways to ensure terms of use to be changed; if it is a web-application then one could only resume using it if the services were accepted before.

Got it.

To be fair, not all people in business or government prioritize "the all-mighty dollar" over everything else. Unfortunately, those who don't usually have principles; those who do often are willing to break rules. This is not an even match.