If we don’t know what we’re promising, is the contract valid?

Do you read the internet’s endless pop-ups by which you’re asked to “consent” to “cookies” every time you visit a new website? You may know that “cookies” essentially mean you’re being tracked, and you may be aware that you’re passively receiving a report of this tracking rather than actively consenting to it. The tracking probably already started when you landed on the webpage and were first presented with the question, right?

You probably don’t read the pop-ups. I don’t. You probably don’t go to each website’s ten-page Terms of Service to learn more about the supposed rules of each individual webpage. I don’t. Reading those legal documents would require more effort than reading the brief article you showed up for.

We know we’re being tracked all the time, whether we actively consent or not. Why waste time reading documents that are designed to be impenetrable? Why try to memorize the stated legal differences between websites? Especially when those documents may be obsolete or false?

Shoshana Zuboff points this out in her book The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (Public Affairs, 2020):

“In many cases, simply browsing a website obligates you to its terms-of-service agreement even if you don’t know it. Scholars point out that these digital documents are excessively long and complex in part to discourage users from actually reading the terms, safe in the knowledge that most courts have upheld the legitimacy of click-wrap agreements despite the obvious lack of meaningful consent.”

—Shoshana Zuboff, The Age of Surveillance Capitalism

She explains how this may be a devolution or degradation of the original idea of a contract.

“Legal scholar Margaret Radin observes the Alice-in-Wonderland quality of such ‘contracts.’ Indeed, the sacred notions of ‘agreement’ and ‘promise’ so critical to the evolution of the institution of contract since Roman times have devolved to a ‘talismanic’ signal ‘merely indicating that the firm deploying the boilerplate wants the recipient to be bound.’ Radin calls this ‘private eminent domain,’ a unilateral seizure of rights without consent. She regards such ‘contracts’ as a moral and democratic ‘degradation’ of the rule of law and the institution of contract, a perversion that restructures the rights of users granted through democratic processes, ‘substituting for them the system that the firm wishes to impose. … Recipients must enter a legal universe of the firm’s devising in order to engage in transactions with the firm.’”

—Shoshana Zuboff, The Age of Surveillance Capitalism (citing Margaret Jane Radin’s Boilerplate)

When we don’t act consciously, we aren’t using our free will, and then it’s hard to describe ourselves as “agreeing” or “promising.” In this situation, what is a contract? Is it only an assertion of power? Someone telling us: By reading this, you agree…?

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