What Are You Giving Up When You Click A Click-Through Contract?

Here are some of the things people consent to when they click on "I agree":

That all disputes will be heard and decided in the courts of King County, Washington, That they accept the app or service 'as is' and without any warranties, That they give up all rights to their first-born child, and That they convey all rights to their immortal soul. Surely this is a joke, you think. But the joke is on all of us who assent to terms of use without reading them. And the jesters who have highlighted this issue are various website and app providers and others who have indeed inserted into their fine-print terms of use so-called "Herod clauses" (rights to your first born) or devil's bargains (rights to your immortal souls).

This summer a provider set up an experimental WiFi hotspot in London, and, in return for free wifi, asked customers to agree to terms and conditions that included a promise "to assign their first born child to us for the duration of eternity." Predictably, a number of people signed up.

This kind of thing has been done before. And none of us can look down on those who click without reading, because we all do it. The initial consent to Apple's terms of service would fill roughly 225 iPhone screens. One study estimated that reading all terms for all of the privacy policies you encounter in a year would take more than 200 hours. Clicking without reading is a basic fact of life in the digital world.

Which raises the question — how effective are those ubiquitous but rarely read terms of use?

The question is important, since website and mobile app terms of service frequently include many crucial provisions. The New York Times reported, for example, that website terms of one-third the top 200 online stores either compel disputes to be decided in arbitration or ban class action claims. Other typical terms disclaim various warranties, and, even where lawsuits aren't prohibited, include consent by the user to jurisdiction and venue in the company's home county and state.

The law distinguishes between click-through terms to which the user specifically consented, and browse-wrap terms (which were seen as akin to old software "shrink-wrap" terms, in that they never got specific assent, but knowledgeable purchasers knew they were there).

Is a browse-wrap an enforceable contract? A recent case, Nguyen v. Barnes & Noble, discussed website terms of use in the context of a browse-wrap agreement. The plaintiff, who sought to represent a class of...