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…?

Sticks & Stones – Part 4


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What are the limits of free speech? Are religion and politics areas of discourse that we ought not talk about, as my Mom used to say?

Obviously it is prudent to think before speaking out in public. Prudential concerns are important to life and well being. There are sections of Chicago, Illinois, USA, for example, where walking alone at night unarmed it would be suicide to start shouting the N word. Walking into the murder capital of the continent to insult people would just be stupid. So, context and audience matter. One of the most powerful arguments for free speech comes from John Stuart Mill’s On Liberty which begins:

The subject of this Essay is not the so-called Liberty of the Will, so unfortunately opposed to the misnamed doctrine of Philosophical Necessity; but Civil, or Social Liberty: the nature and limits of the power which can be legitimately exercised by society over the individual. A question seldom stated, and hardly ever discussed, in general terms, but which profoundly influences the practical controversies of the age by its latent presence, and is likely soon to make itself recognised as the vital question of the future. It is so far from being new, that in a certain sense, it has divided mankind, almost from the remotest ages; but in the stage of progress into which the more civilised portions of the species have now[Pg 2] entered, it presents itself under new conditions, and requires a different and more fundamental treatment.

John Stuart Mill

John Stuart Mill (Photo credit: Wikipedia)

Later in the introduction he writes, “…the practical question, where to place the limit—how to make the fitting adjustment between individual independence and social control—is a subject on which nearly everything remains to be done. All that makes existence valuable to any one, depends on the enforcement of restraints upon the actions of other people. Some rules of conduct, therefore, must be imposed, by law in the first place, and by opinion on many things which are not fit subjects for the operation of law. What these rules should be, is the principal question in human affairs; but if we except a few of the most obvious cases, it is one of those which least progress has been made in resolving. No two ages, and scarcely any two countries, have decided it alike; and the decision of one age or country is a wonder to another.”
And Mill answers the question, What is the principle that should govern the relationship between society and the individual?

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with[Pg 18] any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

Read On Liberty which is available here.
Let the discussion proceed!

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