To Regulate Tech, Nullify Click-Through Contracts

The techlash phenomenon emerged in 2018, as many scandals erupted and Big Tech's reputation took several blows. Surveillance Capitalism was the meme of the day, and the media was hyperventilating about the "ethics crisis" in computing. In response, I wrote^a in January 2019, "If society finds the surveillance business model offensive, then the remedy is public policy in the form of laws and regulations, rather than an ethics outrage." The reaction to my call for regulation of technology was a collective shrug. That was then. Today's meme is generative AI, and the debate is now about human extinction. The race is on to regulate AI.^b The question is no longer "if," but "how."

Government regulations mean the government interferes in the operation of the free market. Free-market absolutists recoil at that prospect. They believe the economy is strongest when the government stays out of it entirely, letting market forces behave naturally. Yet believing the economy and the government operate in non-overlapping spheres is a naïve illusion. Property rights provide a foundation for free-market economics. Property rights define the legal ownership of resources and how they can be used. Who determines ownership and enforces property rights? It is the government, of course.

Contracts provide another foundation for markets. A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more mutually agreeing parties. Practically every economic transaction involves an explicit or implicit contract. If I drink lemonade at a lemonade stand, then I am contractually obligated to pay for it. Who, however, enforces contracts when obligations are not met? It is the government, of course, so the government should have a say in deciding which contracts are enforceable.

Free-market advocates argue that freedom to contract and to conduct business without government involvement contributes to economic efficiency. It is time, I believe, to examine this argument in the context of technology markets. Whenever we use a computing system, we must consent to a click-through license, which is a contract between the user and the provider. Do these licenses really contribute to the efficiency of the market? To point to the absurdity of such licenses, Visual Capitalist measured^c their lengths in 2020. The Microsoft license then was longer than 15,000 words! In 2019, the New York Times described "How Silicon Valley Puts the 'Con' in Consent,"^d noting it would require the average person spend 76 working days reading all the digital privacy policies they agree to in a year's time. "If no one reads the terms and conditions, how can they continue to be the legal backbone of the Internet?"

The problem with tech licenses is broader than just privacy. Last year, I argued^e the absence of accountability in the technology marketplace is responsible for the sorry state of cybersecurity. Waivers of liability, which are part of practically every technology license, facilitate this absence of accountability.

The full breadth of the problem with click-through licenses is explored in Re-Engineering Humanity, a 2019 book by Brett Frischmann and Evan Selinger. They argued that the more fundamental concern is how the click-to-contract human-computer interface nudges humans to behave automatically, without thinking. "The click-to-contract script is dehumanizing," they asserted.^h Furthermore, they argued, the online contracting regime is expressly designed to make users sign complex contracts without reading a single word.

Technology can be an amazing boon to humanity, but only if it is human centered.ⁱ The click-to-contract regime is predatory technology. The fact that we became accustomed to clicking through without batting an eyelash is a sad testament to our attitudes about being preyed upon by technology and its purveyors. Freedom to contract should also mean freedom not to contract—especially freedom not to sign adhesion contracts.^j We do not have such freedom with respect to technology.

It is time to cut the Gordian knot and nullify, legislatively, all click-through agreements. No click-through licenses? Indeed. If I can walk into a car dealership with a cashier's check and walk out with a new car, having only to sign the title-transfer forms, it is not clear why I must sign a 15,000-word agreement to get a new laptop. We probably need new laws to govern our intensely online life, but these laws should be legislated in a democratic way rather than by click-through licenses written by tech companies.