New 'TLDR' Bill Requires Companies Provide Synopsis Of Overlong, Predatory Terms Of Service

from the good-luck-with-that dept

This week saw the introduction of the The Terms-of-service Labeling, Design and Readability Act, or "TLDR Act," for short. The bill, which, for now, has bipartisan support, would require the FTC to create rules mandating that websites must offer a truncated version of obnoxiously long and predatory terms of service (TOS) nobody actually reads. The "summary statement" websites would be obligated to provide would not only lay out the legal requirements in terms normal humans could understand, it would also require a website disclose any major data breaches that have occurred in the last three years.

A breakdown (pdf) of the bill also states it will require websites to disclose what data is collected upon a user's visit, and what kind of control a user has over that data. Any violation of the new law would be declared to be within the realm of "unfair and deceptive" under the FTC Act, giving the agency the authority to act on it. Rep. Lori Trahan had this to say about the need for such a law:

"For far too long, blanket terms of service agreements have forced consumers to either ‘agree’ to all of a company’s conditions or lose access to a website or app entirely. No negotiation, no alternative, and no real choice,” said Congresswoman Trahan, a member of the House Subcommittee on Consumer Protection and Commerce. “To further slant the decision in their favor, many companies design unnecessarily long and complicated contracts, knowing that users don’t have the bandwidth to read lengthy legal documents when they’re simply trying to message a loved one or make a quick purchase."

Yes, most TOS are overlong and that length is often used to obscure bad behavior or quietly erode consumer rights (see: binding arbitration). But many TOS are also overlong because U.S. law and compliance are complicated as hell. The idea that you can always simplify everything a company needs to get across to a user to comply with the law and reasonably cover your ass in a sentence or too is probably a little simplistic. At the same time, I'm not sure the American consumer, many with the attention span of a goldfish, would even read the truncated version of a TOS anyway.

While "more transparency" is certainly good, it also only goes so far if you're not willing to tackle the deeper problem(s). For example the FCC is pondering a transparency label on broadband connections outlining all the sneaky ways you're getting ripped off by your internet service provider. And while knowing the precise parameters how you're getting ripped off is nice, users in monopolized markets can't switch ISPs anyway because the FCC generally isn't willing or able to combat monopolization and limited competition. So transparency only accomplishes so much.

Here too, websites, apps, and services use overlong TOS to obfuscate all manner of behaviors U.S. regulators either don't have the resources to police (the FTC has 8% of the staff dedicated to privacy issues as the UK, despite the UK having one-fifth the consumers to protect) or are apathetic to because of revolving door corruption (see: telecom, banking, adtech, etc.). Expecting the FTC to do a whole lot more stuff without notably expanding funding seems a bit short sighted. And this is all assuming the bill is actually well written and doesn't cause new, unforeseen problems via sloppy language.

So while well intentioned, this feels like a bit of a band aid on problems policymakers can't or won't tackle head on. Like limited competition. Or the complete and total lack of anything even vaguely resembling accountability in telecom, adtech, or the data broker space. Or privacy reform. Or antitrust reform. All of these problems lead to bad behaviors companies are hiding in their TOS, and making those bad behaviors clearer to the end user is only part of a process. Knowing you're getting screwed or spied on is only helpful if you have the recourse to do something about it, and regulators willing to stand up for you when push comes to shove.

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Filed Under: congress, ftc, terms of service, tldr, tldr act


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  1. icon
    That One Guy (profile), 14 Jan 2022 @ 3:30am

    Only so much you can simplify 'Our house our rules'

    There is no chance that 'tldr' just so happened to be the shortened version of the bill name, so nice to see someone has a sense of humor I guess...

    As the article notes there's some good and bad in this one. While it would be nice for users not to have to wade through legalese that the vast majority are going to have no chance of understanding a lot of that is almost certainly CYOA by the site owners, and if they have to boil that down it's likely to be something along the lines of 'you use our service at our discretion, and while we have rules we reserve the right to show you the door for any reason we think of that doesn't violate the law' which... isn't exactly going to help users understand more than they already do.

    Nice idea, just not sure it will actually accomplish anything, and that's before getting into the potential for sites to be punished for not being 'clear' enough, forcing them to make their summary as encompassing of their rules as possible while still covering everything that might bite them by being left out and putting everything right back at square one.

    reply to this | link to this | view in thread ]

  2. identicon
    kallethen, 14 Jan 2022 @ 5:25am

    Not even the end of January and already I think we have an award winner for "Backronym of the Year."

    reply to this | link to this | view in thread ]

  3. icon
    aethercowboy (profile), 14 Jan 2022 @ 5:30am

    In Other News...

    The pot has started calling the kettle black.

    reply to this | link to this | view in thread ]

  4. icon
    Bergman (profile), 14 Jan 2022 @ 6:05am

    Re: In Other News...

    This. Some governments write laws that are so obfuscated, they’d actually be unconstituutional for that alone under some state constitutions.

    reply to this | link to this | view in thread ]

  5. icon
    charliebrown (profile), 14 Jan 2022 @ 6:07am

    Envisioning

    I envision the average TLDR version of ToS would read like this:

    1 - We will collect data about you, even if you opt out, and we will profit from said data and there's nothing you can do about it.
    2 - You will agree to our conditions or you can go fuck off!

    Look, you have to agree to the terms of service or you can't use your phone. Mobile phones are the best example of not owning what you buy. Sure, you can use a different OS with the hardware, but you have to agree with the EULA of any OS you put on there. Unless someone wants to bang out a phone OS and make it PD or CC0.

    https://i.imgur.com/V3cD5WO.jpg

    reply to this | link to this | view in thread ]

  6. icon
    PaulT (profile), 14 Jan 2022 @ 6:20am

    "No negotiation"

    Yeah, nobody's going to negotiate individual bespoke contracts for millions of different users. What do you expect will happen here?

    "no alternative, and no real choice"

    Virtually every company that is probably being addressed here has competitors (I assume she's not talking about ISP contracts?), and you have the choice to go to them at any point if you disagree with the terms of service being presented to you. You almost always have a choice, you just don't have the choice of "I don't agree with the terms but want to use the service anyway".

    "users don’t have the bandwidth to read lengthy legal documents when they’re simply trying to message a loved one or make a quick purchase"

    True, but then the question is raised as to why you're signing up to new services to do such things rather than use the places you have existing contracts with.

    Also, I fear you're being very naive if you think that providing a summary to people would get them to read it. Some people still get very confused when you present them with a door that says "push" and then blame someone else when it turns out they can't pull it open. You still get people shocked when they're charged after a free trial ends even though the form they filled in has "this is a 14 day free trial you will be charged $9.99/month unless you cancel" written in big bold letters across the screen.

    T&Cs are overlong and could do with being greatly simplified in many cases, but I fear that if you're relying on people reading even a paragraph of text properly and understanding it before they either just click anyway or skip over something they later believe is important, I have bad news for you. Then, of course, who monitors these and ensures that the summaries being presented are accurate and representative of the longer version? I predict a lot of court cases discussing whether or not the implied rules in the summaries match the full text.

    reply to this | link to this | view in thread ]

  7. identicon
    mcinsand, 14 Jan 2022 @ 6:52am

    RepublicWireless would be a good model

    Probably the only EULA I have ever read was the one from RepublicWireless a few years ago. It was written for the average person, rather than a legalese-fluent attorney, and there were nice bits of humor sprinkled in. Someone had fun writing it, and I actually read it a couple of times. The new EULA (https://republicwireless.com/pages/terms-and-conditions) is still good, but not as much fun to read as the one I remember.

    I think that we just need a lawsuit or two to claim that EULAs that are long and difficult for the average person to read are an unreasonably onerous burden. Expecting us to follow the rules means communicating them clearly.

    Regards

    reply to this | link to this | view in thread ]

  8. This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 14 Jan 2022 @ 6:57am

    My one gripe about techdirt, if it's not exactly what techdirt thinks it should be, it sucks.

    It's the same lesson D's need to learn. Manchin and Sinema may suck but you are getting a lot of judges that you wouldn't be getting if they had R's in from of their names.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 14 Jan 2022 @ 7:28am

    Re:

    but you are getting a lot of judges that you wouldn't be getting if they had R's in from of their names.

    Odd, it was just yesterday when Techdirt ran an article showing the limits of realpolitik.

    Odd, isn't it, how devils keep popping up when you say you'd "make a deal with a devil" to ... pass some legislation, get a judge nominated, things like that?

    reply to this | link to this | view in thread ]

  10. icon
    Dan Neely (profile), 14 Jan 2022 @ 7:37am

    for 99% of TOS statements TLDR:

    U R FKT

    Still might be too much for a goldfish brain though.

    reply to this | link to this | view in thread ]

  11. identicon
    Suomynona, 14 Jan 2022 @ 7:41am

    Re: BlackPot Congress

    Yes, Congress is notorious for issuing incomprehensible, complex commands (laws & regulations) to the American public.

    Worse, the Congressmen voting for these laws rarely even read them... much less understand them.

    The courts can't understand them either, but very dutifully strive to impose their best guesses of the law upon a befuddled and subjugated public.

    Welcome to the American dystopian Rule of Law.

    reply to this | link to this | view in thread ]

  12. identicon
    Another anonymous coward, 14 Jan 2022 @ 7:49am

    Re:

    Oh, Like a PinePhone or a Librem 5?

    I have a PinePhone. Currently running PostmarketOS, a linux variant.

    reply to this | link to this | view in thread ]

  13. identicon
    Suomynona, 14 Jan 2022 @ 8:00am

    Re:

    well OK, exactly what do you think techdirt thinks it should be ?

    Techdirt legitimately has a general viewpoint, as do we all.

    You are free to post any disagreements you have, or find websites you are more comfortable with.

    reply to this | link to this | view in thread ]

  14. icon
    sumgai (profile), 14 Jan 2022 @ 8:59am

    Re: RepublicWireless would be a good model

    Voted Insightful for the last sentence alone!

    But I do wish that we also had a DemocracyWireless, just to watch the alt-right lose their collective shit.

    reply to this | link to this | view in thread ]

  15. icon
    Robert Schwartz (profile), 14 Jan 2022 @ 9:00am

    Negation of fair use?

    So in (D), will the FTC consider a negation of fair use rights to be a "transfer of rights to the Covered Entity"? It's not among the examples given.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 14 Jan 2022 @ 9:11am

    So while well intentioned, this feels like a bit of a band aid on problems policymakers can't or won't tackle head on. Like limited competition. Or the complete and total lack of anything even vaguely resembling accountability in telecom, adtech, or the data broker space. Or privacy reform. Or antitrust reform.

    But will any of those things really help? There are lots of places where one can buy things online. Are there any where I can buy things without an overly complicated contract? I can walk into any store and buy a thing without involving lawyers. But literally every online shop I've seen, of which there are many, wants me to agree to something more complex than a home purchase agreement (seriously—mine was 6 pages with a lot of blank space, quite easy to understand, and didn't require me to absolve anyone of legal responsibility).

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, 14 Jan 2022 @ 9:47am

    If the want to protect consumers bring in privacy laws, you can't sell browsing data to 1000s of ad tech company's, without asking for permission from users, apps on phones cannot track users and the websites they visit across the Web, apps should have a simple menu do not track or track my Web browsing as part of the install process apps must delete dara on old users who nó longer use the app
    NO one apart from lawyers has time to read the tos on the dozens of websites they use every day just to read an article or watch one video

    reply to this | link to this | view in thread ]

  18. icon
    nasch (profile), 14 Jan 2022 @ 10:07am

    Re: Only so much you can simplify 'Our house our rules'

    it's likely to be something along the lines of 'you use our service at our discretion, and while we have rules we reserve the right to show you the door for any reason we think of that doesn't violate the law'

    There's a lot more to terms of service than that though, such as what data is collected, and what can be done with it.

    reply to this | link to this | view in thread ]

  19. icon
    nasch (profile), 14 Jan 2022 @ 10:09am

    Re: Envisioning

    Unless someone wants to bang out a phone OS and make it PD or CC0.

    Or 13 someones.

    https://itsfoss.com/open-source-alternatives-android/

    reply to this | link to this | view in thread ]

  20. icon
    nasch (profile), 14 Jan 2022 @ 10:11am

    Re: Re: Envisioning

    I guess open source OSes come with a license agreement, but unless you're modifying the source it amounts to "do whatever you want", so it's not comparable to the agreements for closed services and software.

    reply to this | link to this | view in thread ]

  21. identicon
    cpt kangarooski, 14 Jan 2022 @ 10:49am

    The solution is to ban adhesive contracts for ordinary consumer transactions. Anything less will fail, is my prediction.

    reply to this | link to this | view in thread ]

  22. icon
    nasch (profile), 14 Jan 2022 @ 11:17am

    Re:

    The solution is to ban adhesive contracts for ordinary consumer transactions.

    You mean services such as Facebook or iTunes or AWS would not be allowed to have terms of service? I don't see that happening.

    reply to this | link to this | view in thread ]

  23. identicon
    cpt kangarooski, 14 Jan 2022 @ 2:24pm

    Re: Re:

    You'd need to have standard ones in the law that were reasonable, similar to the default UCC terms when a contract for the sale of goods is silent.

    reply to this | link to this | view in thread ]

  24. icon
    Robert Schwartz (profile), 14 Jan 2022 @ 6:56pm

    Negation of fair use?

    So in (D), will the FTC consider a negation of fair use rights to be a "transfer of rights to the Covered Entity"? It's not among the examples given.

    reply to this | link to this | view in thread ]

  25. icon
    BernardoVerda (profile), 14 Jan 2022 @ 11:37pm

    Re: RepublicWireless would be a good model

    Am I the only one who remembers HavenTree's Interactive EasyFlow Bloodthirsty License Agreement ???

    https://en.wikipedia.org/wiki/Interactive_EasyFlow.

    It was the epitome of a concise, reasonable, easy to understand license agreement:


    Bloodthirsty License Agreement

    This is where the bloodthirsty license agreement is supposed to go,
    explaining that Interactive Easyflow is a copyrighted package licensed
    for use by a single person, and sternly warning you not to pirate
    copies of it and explaining, in detail, the gory consequences if you
    do.

    We know that you are an honest person, and are not going to go around
    pirating copies of Interactive Easyflow; this is just as well with us
    since we worked hard to perfect it and selling copies of it is our only
    method of making anything out of all the hard work.

    If, on the other hand, you are one of those few people who do go around
    pirating copies of software you probably aren't going to pay much
    attention to a license agreement, bloodthirsty or not. Just keep your
    doors locked and look out for the HavenTree attack shark.


    Honest Disclaimer

    We don't claim Interactive Easyflow is good for anything -- if you
    think it is, great, but it's up to you to decide. If Interactive
    Easyflow doesn't work: tough. If you lose a million because
    Interactive Easyflow messes up, it's you that's out the million, not
    us. If you don't like this disclaimer: tough. We reserve the right to
    do the absolute minimum provided by law, up to and including nothing.

    This is basically the same disclaimer that comes with all software
    packages, but ours is in plain English and theirs is in legalese.

    We didn't really want to include any disclaimer at all, but our lawyers
    insisted. We tried to ignore them but they threatened us with the
    attack shark (see license agreement above) at which point we relented.


    I swear, sometimes people bought the software just for the pleasure of reading the license.

    reply to this | link to this | view in thread ]

  26. identicon
    Anonymous Coward, 15 Jan 2022 @ 3:01pm

    Re:

    Shhh honey, the adults are trying to have a conversation.

    reply to this | link to this | view in thread ]

  27. icon
    That One Guy (profile), 15 Jan 2022 @ 11:12pm

    Re: Re: RepublicWireless would be a good model

    Oh that was glorious, thanks for sharing.

    reply to this | link to this | view in thread ]

  28. icon
    PaulT (profile), 16 Jan 2022 @ 9:49am

    Re: Re: Re:

    "You'd need to have standard ones in the law that were reasonable"

    So, you're saying that services need to adopt the methods of doing business that are prescribed by the government, which will presumably be written to enforce legacy business models and not allow for businesses that disrupt those or wish to provide more rights and flexibility for their users?

    I hope you see the problem here.

    reply to this | link to this | view in thread ]


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