If "usage imply consent" then couldn't you just write unpleasant TOS updates so that they end up in the spam filter and then argue the user complied.
sending email + user using does not in any sane way guarantee that the user did even know about it
and if usage implies consent how do you even delete you account if you disagree with contract changes, as that requires logging in which can easily be maliciously seen as using the application as any landing page contains app functionality
The entire notion of being allowed to enforce arbitrary terms of service is absurd. There are probably a handful of terms everyone agrees are reasonable (no attempted hacking, rate limits, do not break laws) and everything else should be unenforceable. Especially garbage like what you're allowed to do with the stuff you get from the service even while not using the service, or about setting up competing products. It's like McDonald's selling you a burger and telling you how to eat it.
The pro tip is pasting such long ToS into NotebookLM and asking it to list e.g. top 5 surprising clauses (if you ask just about surprising clauses it treats you like an idiot and lists everything)
> The entire notion of being allowed to enforce arbitrary terms of service is absurd. There are probably a handful of terms everyone agrees are reasonable (no attempted hacking, rate limits, do not break laws) and everything else should be unenforceable.
Why? Why should a government prohibit private parties from agreeing to anything other than those 3 things?
> Especially garbage like what you're allowed to do with the stuff you get from the service even while not using the service, or about setting up competing products. It's like McDonald's selling you a burger and telling you how to eat it.
It is vaguely like that, but but I'm not sure the analogy facilitates understanding of this subject. McDonalds shouldn't tell you how you can eat your burger, therefore... companies must not enforce any terms on their services aside from those things. Why?
I'm not saying any term should be enforceable. Contract law has a long history against that. I just wonder how and where you draw the line and what existing law is insufficient.
>Why should a government prohibit private parties from agreeing to anything other than those 3 things?
because ToS have been long used to demand unreasonable things and threaten people with expensive lawsuits. The advantage of companies losing bullying power significantly outweighs the disadvantage of less business freedom
ToS are normally "contracts" (hard to even call them that) between a large corporation with very high resources for a lawsuit and an individual with very low resources. The power imbalance makes challenging ToS for the individual unfeasible in 99% of cases
> because ToS have been long used to demand unreasonable things and threaten people with expensive lawsuits. The advantage of companies losing bullying power significantly outweighs the disadvantage of less business freedom
Why those in particular though? The criminal law one sure that's a part of contract law already. Why the others? Why not different ones? It was just asserted that those were reasonable and no other terms are.
Because the power is disproportionally concentrated with one party - the service provider. The users of the service are numerous, comparatively small and uncoordinated.
In a situation like that, users have no means of resisting egregious terms, and no you cannot pull up stuff like "if you don't like it, don't buy it". As I wrote, the users are uncoordinated, and would take a huge effort to coordinate. Boycotting services rarely works (if ever). So what we end up with is that legal teams employed by firms optimize to shove as much bullshit into ToS as they can, the users grind their teeth and bear the bullshit, and get shittier service. Nobody really wins, because I'd argue the marginal gain for the company is minimal at best from this.
The government is not there just to enforce laws, but also to legislate such that the scales are balanced. Otherwise we may as well live in a dictatorship.
IMHO the problem is allowing changes to terms and conditions for existing contracts. If I have a contract with a company, that contract was made under existing T&C. The company should not be able to change those conditions without my explicit permission. Denying me service if I disagree should not be a valid option.
I get this periodically on our overly-computerized car: Here are new T&C, click yes to agree. You can make the screen go away temporarily, but there is no options to say "no, I disagree".
Here in Sweden the thing that makes something a contract is that you can't change it-- that it has definite provisions that have been agreed and that both parties actually expect the other to hold up their part.
The US breaking its contract law to treat non-contracts as contracts is one of the most insane things I've seen a legal system do to itself.
The key difference, is that the US is many jurisdictions (Federal + 50 states + a lot of others, from counties to cities to territories to MANY others), and the variance amongst those is high.
The key thing well regulated places like Sweden get right, is that in consumer contracts you have minimum bars that you must meet regardless of what you can get the consumer to agree to. So, for instance, return policies, for goods bought online have minimum standards they must meet.
In the US, these things have huge variability. There are well regulated states, and well, the others.
>The key thing well regulated places like Sweden get right, is that in consumer contracts you have minimum bars that you must meet regardless of what you can get the consumer to agree to. So, for instance, return policies, for goods bought online have minimum standards they must meet.
Yes, but Swedish contract law actually is like this. A contract is a specific agreement, it can never be "Oh well, you can add provisions as you like if you send them to me" or "I will pay whatever".
This is not true. It is 100% possible to write a contract in Sweden where one of the paragraphs says that you can change it in this and that way. And if we're talking about business to business contracts, it will probably in almost all cases be enforceable, even if you're writing that one party can just announce changes. In fact, I think most business to business contracts have some kind of clause specifying that it is possible to raise prices or change certain things.
That absolutely isn't true. You can enter into agreements about how to form a contract, but a contract is definite, completely specific, with no changing provisions. That's what makes it a contract.
If you have an agreement that says one party can announce changes, you don't have a contract, because those changes were not agreed to.
I am not sure that is correct. At the least it sounds to be a violation of EU laws if this were possible in Sweden; but, even aside from it, I do not think a contract can be changed willy-nilly without offering termination of the service in due time.
Presumable in Sweeden you can agree to new contract that supercedes the current one? That's all that's (argueable) happening here.
To me the insane part is that contracts don't have to be registered with the courts (or some qualified third party) ahead of time.
Like each party could show up with their own piece of paper (or not be able to provide it). Which is largely the issue here in that one party is showing up with a 2021 document and the other a 2023 document.
>Presumable in Sweeden you can agree to new contract that supercedes the current one? That's all that's (argueable) happening here.
Yes, of course.
We don't have any rules about contracts needing to be written down or registered or anything of that sort. Even verbal agreement are valid, and you are entering into simple contracts even when you buy something in a store.
There is a strange phenomena where introducing tech makes people suddenly blind or numb to established rules.
Can you imagine buying a car in the seventies and a month later finding a technician under your parked car making adjustments to it? You’d kick them out and call the police. But put an internet connection in between and it’s ok.
Same goes for wiretapping (compare Nixon vs current state), unlicensed hotels and cabs being ok when booked by an app, and so on.
The other side of this is that companies do want to change their T&C from time to time, so what do they do, force you to quit and then sign up again? That adds a lot of friction. Or do they tag things and say "Customer X signed up on this date, so he is bound by T&C number 12, whereas this other customer signed up a year later and is bound by T&C number 13". That seems unwieldy since there is a common infrastructure.
I get emails from time to time that "Policy X has changed and will take a effect in X weeks" so at least I'm given advance notice, and am basically OK with that approach as long as the changes are spelled out clearly and not hidden in hundreds of pages of legalese. Maybe an LLM would help here, and translate what the new changes in terms really means so I can decide whether to continue with the service or not. In general I'm OK as long as I'm given enough notice and it's clear what is happening.
The same thing happens with pricing. What does a company do when they want to increase rates, or change their products? They send out a notification that starting on a certain date, the prices will go up. I don't think anyone objects to that. How is a T&C change different?
I work for a digital bank and the versioning is essentially exactly how we handle T&Cs.
The user accepts a certain version of some terms, and if we launch for example a new product that requires changed T&Cs then we ask the user to accept them if they want to use the new product.
If they don't, well, then they just keep using the existing offering without accepting any new terms.
But the “initial” T&C allows them to cancel your contract unless there’s a minimum contractual period. They can take that opportunity to force you into a deal change. The change is that now just using the service is considered consent.
The real problem is that the law allows this power imbalance and doesn’t tip the scales to even it out for the end user. That for me is evidence that the law is made for the companies (probably by the companies too).
I have the same in the car. Been postponing for 2 years now.
I wonder if this can be weaponized by users too (probably no legal basis for this), just send them a new T&C again and again and say delivering the service is consent. Force the companies to say the quiet part out loud: users are not allowed to have the same liberties as the company.
> That for me is evidence that the law is made for the companies (probably by the companies too).
Yes, everything is becoming more and more convenient for big corporations while individual citizens need to navigate an ever increasingly complex world. Laws are designed to protect capital not individual citizens nor society. That never ends well.
If you decline the new contract, you're entirely welcome to continue on the old T&C.
Worth noting, the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke.
Also worth noting, the old T&C you agreed to probably included a clause about these sorts of updates, too.
So, right there, you've already explicitly agreed to a contract that can be terminated if you don't accept updates.
> The company should not be able to change those conditions without my explicit permission.
The legal argument is that (a) you were explicitly notified of these changes, (b) your rights to use the service under the previous contract have been revoked, and (c) you're continuing to use the service.
So, either you're stealing their service, or you did in fact explicitly agree to the new contract - "“Parties traditionally manifest assent by written or
spoken word, but they can also do so through conduct.” Berman, 30 F.4th at 855."
> If you decline the new contract, you're entirely welcome to continue on the old T&C.
I think the point of contention here is that in practice, there is no way to continue on the old terms of service/contract. Suppose you're using a note taking app, and one day they update their terms of service to say that they can use your notes to train their AI. "Continued use implies consent," so you are locked into the new terms of service unless you stop using the app right then and there. You are not afforded the opportunity to decline the new terms of service and continue on the old ones.
Clauses existing, have very little to do with it being enforceable.
Vader might say he can change the deal at any point, but consumer law generally requires that what is purchased reflects what is advertised.
If you don't agree to a new set of terms, because the service is changed from what you purchased, then both parties generally should still be party to the previous.
Notification alone, is not enough. Agreement is required.
Hm. It seems that use actually goes two ways. They continue to use my information even when I leave their platform. Does this mean I can email info@google.com updated TOS, since I am a party to it I guess, and if they keep selling my info they accept it?
For those not familiar with US appeals courts, this is an unpublished order, which means that it's (broadly speaking; there are subtleties) not precedent and applies to this case alone.
Well, just one step more, and we'll have "TOS may be unilaterally updated by publishing the new terms on the firm's web site, it is entirely the user's duty to keep himself up to date, continued use implies unrevocable consent and giving up the right to re-negotiate" legal as well.
The TOS are changing from 1st of June as below:
- are your belongings are now ours
- please move out of your->our house
- you cannot use the service anymore
My personal preference is for laws that promote reasonable limits on "Standard terms and conditions" and then recognizing that nobody reads them and making them applicable regardless of whether people read them or not. Then companies can stop pretending like people are reading the standard terms and unfair terms are just unenforceable. This does require that your civil law defines what unfair terms look like (generally that they are too one sided in favor of the contractor or are surprising given the service provided).
Obviously, this doesn't exist in the USA but does exist in (for example) the Netherlands. I would recommend lobbying in your country for such laws since in practice the vast majority of contracts like these that people face aren't actually negotiated nor negotiable.
by reading or not reading this comment, you imply consent for me to access, manipulate, and/or assume control of any of your checking and savings accounts, investments, stocks, bonds, options, futures, securities, lines of credit, and real estate that you hold now or may acquire in the future, regardless of my chosen method or manner of access. disputes arising from any such activity shall be arbitrated by me. you may opt out at any time by replying “I CONSENT”
The analysis isn't great. In particular, they say "this is a three-factor test, two of the factors are in favor, one is against, two is more than one, so Tile is fine". Normally you'd expect some kind of analysis of how much weight each factor contributes.
That said, they do also say this:
> we determine that Appellees received inquiry notice of the Oct. 2023 Terms. Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” Godun v. JustAnswer LLC, 135 F.4th 699, 710 (9th Cir. 2025), and we do not hold that notice by mass email establishes inquiry notice in every case.
So the HN headline is misleading at best.
(They also note that, while they should consider how normal internet users behave, they can't do this because "there is very little empirical evidence regarding" the question. So they substitute a discussion of how reasonable they find Tile's actions in the abstract.)
The implications for B2B contracts are significant here. In construction, for example, subcontractor agreements often reference separate terms documents that get updated independently. If email notice plus continued use constitutes acceptance, it changes the calculus for how companies manage contract amendments across multi-party project teams. The practical challenge is that on a large project you might have 50+ subcontractors who all need to actively acknowledge revised terms, and this ruling suggests passive acknowledgment through continued use may suffice.
Even if it makes things overly complicated sometimes, I like the EU style that forces companies to make people actively confirm their consent, and puts the 'inform' part of 'informed consent' into the company's responsibility.
On a much smaller scale I did the same thing with a consulting contract. They sent it me and said to full in my own job description and "check the contract". The laziness annoyed me, so I altered the payment terms from 30 days to 7. Every month they paid after around 15 days and I let it go, but one month they hadn't paid after 31 days and I sent them an invoice for late payment for every single invoice to that date (only 4 or 5). I didn't think they'd pay it but they did
The original Minecraft EULA did not have any of the usual boilerplate language to support unilaterally modifying the terms. I had a Minecraft account purchased under this original EULA which was modified a year or two after I bought the game. Around 5 or 6 years ago, Mojang emailed me about changes to their login system that would require me to migrate my account to Microsoft’s system (no doubt under new T+C), but the migration process never worked and they never responded to my support requests.
When I tried to resolve it a couple of years ago I received boilerplate emails informing me that the migration period had ended.
So if you deal with companies that simply don’t honor their contracts—companies like Microsoft and Mojang—you don’t even need use to imply consent, because they can just lock you out of your purchases and tell you to pound sand.
Fundamentally, the court seems to be treating this identically to a scenario where the user was ignorant and failed to read their inbox. The court seems to be completely disregarding that it was misdelivered into spam. The word "spam" doesn't even appear more than twice in the ruling (one of which is in an irrelevant footnote)!
Why the heck is the court completely oblivious to that fact when weighing the facts on each side? You'd think a case hinging on a crucial email being sent into spam would at least mention that fact more than once? (!) The court certainly seems to take into account common practices in every other aspect of the case except that most crucial one... why?! No explanation whatsoever? Would this really survive on a hypothetical appeal?
> As Tile users, each Appellee provided an email address during account registration, and should have expected to receive relevant updates there while the account was active.
Well yes, they did, but:
> Because “there is very little empirical evidence regarding” Internet users’ expectations, the focus of this inquiry is “on the providers, which have complete control over the design of their [apps and] websites and can choose from myriad ways of presenting contractual terms to consumers online.”
...Tile should've expected that its email might go into spam, right? Shouldn't the court at least mention this, even if it doesn't lend it any weight?
> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” and we do not hold that notice by mass email establishes inquiry notice in every case.
At least they say their ruling doesn't generalize...
Unless the user’s e-mail was controlled by their counter-party, what folder the message ended up in seems to be irrelevant to me. The user is the one who selected the e-mail inbox service provider, and has some degree of control over message categorization.
That does sound like there's an exploitable element there isn't it?
Statistically speaking, most people use one of the biggest email providers, which use their own models to detect spam (or even quietly drop messages). If you're doing an unpopular TOS change, why not set the mail up to still be RFC compliant but in such a way where the mail isn't going to be allowed through by any of the providers. Then you can just claim the problem is userside.
For example, the Message-ID header is technically not required (SHOULD rather than MUST), but as a spam detection measure, Gmail just drops the message entirely for workspace domains: https://news.ycombinator.com/item?id=46989217
> The court seems to be completely disregarding that it was misdelivered into spam.
Spam categorization isn't a delivery issue. The delivery is the same whether you, upon taking delivery, toss the message into a bin labeled "spam" or one labeled "inbox".
I guess it's an instance of a more general principle: sending an email doesn't guarantee it gets to the user's inbox, never mind that it gets read.
Even if you are OK with the idea that a user can be presented updated TOS with no option to disagree (I don't, but put that aside for a moment), it should still require a mechanism that actually guarantees (or at least verifies) that the user has seen that the terms are updated. Email is not that. (An unskippable notice on login to a web service would be.)
the key issue is the interpretation of "consent" when continued use is the only option. aree users truly consenting, or are they simply left with no alternative?
So much stuff is getting put in Terms of Services that have nothing to do with using the service. Games will tell you how your allowed to make fan art in them. If I am drawing a picture at my desk I'm not even in the game.
I had the somehow the same problem with a mobile operator here in EU. They said just by sending an email I agree with their new terms and subscriptions. It's a gray area, IMO. They could simply terminate the service but who wants that?
How do they ensure that the email reaches the destination though?
I have had emails never delivered to me, not due to my own fault
but the service provider filtering it away before I could do
anything. It is also dangerous to assume "use implies consent".
I am sure there are other ways to ensure terms of use to be
changed; if it is a web-application then one could only resume
using it if the services were accepted before.
> In October 2023, Tile sent to all accountholders […] an email with the heading “Updated Terms of Service and Privacy Policy” […] to the email address provided by accountholders during registration, […] “[i]f you continue to use any of [Life360 and Tile’s] apps, or access our websites (other than to read the new terms) on or after November 26, 2023, you are agreeing to the [Oct. 2023 Terms].”
> Broad did not locate the Oct. 2023 Notice until January 2024, when she affirmatively searched for the email and found it in her spam folder. […]
> Doe “never knew that Tile sent” the Oct. 2023 Notice and so never “read any revised or updated Terms.”
> The district court held that neither Broad nor Doe assented to the Oct. 2023 Terms.
So then it was challenged, and the appeals court gets into the weeds: were the Appellees “on inquiry notice of the Oct. 2023 Terms”? (“Inquiry notice” is clearly a specific legal term, I can’t comment on its precise meaning.)
The entire thing seems to hinge on whether appropriate notice was given: it seems to be accepted by all parties and case law that “continuing to use after such-and-such a date implies consent” is okay. (This is explored at the end of the document: simply using the app is treated as “unambiguously manifesting assent”, presuming inquiry notice.)
The court decides: yes, it was sent in the appropriate way and clearly marked and described. And
> Although the email did not say specifically that the arbitration agreement would be updated, reasonable notice does not require the email to discuss every revision.
They do say
> Tile could have done more to ensure that all its users were on inquiry notice of the Oct. 2023 Terms. Tile could, for example, have interrupted users’ next visit to the Tile App with a clickwrap pop-up notice. […] Because Tile should have known that at least some of its users do not closely monitor email, […] and Tile should have furnished additional notices, this factor weighs against finding inquiry notice.
They conclude: two factors for, one against, and thus determine that inquiry notice was received, although Tile didn’t handle things properly themselves, and should have done more.
But they avoid setting this as universal precedent:
> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” […] and we do not hold that notice by mass email establishes inquiry notice in every case.
—⁂—
This is my interpretation from a brief read of this interesting-sounding document. I’m neither a lawyer nor American. My understanding is almost certainly incomplete. I think I have avoided inserting any interpretation of my own, others can do that.
The argument seems to be that for Broad, there was clear receipt of the email, even if it was delayed by being in the spam folder - we know she found it eventually.
Doe is a bit more interesting, since she re-downloaded the app, and they're saying that in-and-of-itself is sufficiently clear intent/consent to the current Terms of Service
("Doe unambiguously manifested assent to the Oct. 2023 Terms by
downloading the Tile App in March 2024 and using the Scan and Secure feature in
attempting to locate her alleged stalker’s Tile Tracker.")
well, I hope the companies doing that have someone watching contact@ to cut my acces when I send my version of thr updated terms of service, since allowing my usage can imply consent. Right?
The email account I cannot access because google decided to ask me for a captcha for which I have no knowledge of, and the don’t have a human help desk that I can contact to prove ownership by providing ID documents?
I don't understand how a community such as this, as connected as it is, can't back channel a message to Google brass to do something about these lockouts, which occur frequently and are unnecessary. There is no way Google doesn't know about them.
Gmail is an essential piece of pervasive personal infrastructure, upon which hundreds of millions of people rely. People are losing irreplaceable data for lack of care on the part of Google. The cost of providing a way to prove identity while maintaining security ought to be part of the cost of doing business for Google as it provides Gmail.
Surely there are some Google employees lurking who can chime in on this frustrating neglect.
They slip "By using this app, you agree to Ring’s Terms of Service (ring.com/terms). You can find Ring’s privacy notice at ring.com/privacy-notice." into their app update changenotes for every update.
US capitalism (aka, powerful financial entities driving policy).
To be fair, not all people in business or government prioritize "the all-mighty dollar" over everything else. Unfortunately, those who don't usually have principles; those who do often are willing to break rules. This is not an even match.
It's just an appellate court ruling, not the summary execution of Bernie's last faithful warrior. It can't even set precedent since the opinions are unpublished.
In summary, the Ninth Circuit applied California law to determine that users received sufficient notice. Are other states' laws on notice similar enough to California law for this ruling to be applied broadly? I understand that the order is unpublished so the ruling has little precedential value regardless but I wonder whether the three-factor test is used in other states.
If "usage imply consent" then couldn't you just write unpleasant TOS updates so that they end up in the spam filter and then argue the user complied.
sending email + user using does not in any sane way guarantee that the user did even know about it
and if usage implies consent how do you even delete you account if you disagree with contract changes, as that requires logging in which can easily be maliciously seen as using the application as any landing page contains app functionality
The entire notion of being allowed to enforce arbitrary terms of service is absurd. There are probably a handful of terms everyone agrees are reasonable (no attempted hacking, rate limits, do not break laws) and everything else should be unenforceable. Especially garbage like what you're allowed to do with the stuff you get from the service even while not using the service, or about setting up competing products. It's like McDonald's selling you a burger and telling you how to eat it.
> It's like McDonald's selling you a burger and telling you how to eat it.
and you are not allowed to criticize it or write about the size of it or how much meat there is in it or how filling it is to eat the burger.
and you are definitely not allowed to compare it to burgers from other companies.
and you're not allowed to open a restaurant (same food industry == competition) if you have even took one bite of the burger
Not to mention the unreasonable length and complexity of these things. I’ve seen shorter contracts for mergers and acquisitions.
The pro tip is pasting such long ToS into NotebookLM and asking it to list e.g. top 5 surprising clauses (if you ask just about surprising clauses it treats you like an idiot and lists everything)
> lists everything
To be fair existence of TOS is suspiring.
>It's like McDonald's selling you a burger and telling you how to eat it.
And the way the resteraunt this right is by covering their walls with TOS text like an Egyptian tomb.
> The entire notion of being allowed to enforce arbitrary terms of service is absurd. There are probably a handful of terms everyone agrees are reasonable (no attempted hacking, rate limits, do not break laws) and everything else should be unenforceable.
Why? Why should a government prohibit private parties from agreeing to anything other than those 3 things?
> Especially garbage like what you're allowed to do with the stuff you get from the service even while not using the service, or about setting up competing products. It's like McDonald's selling you a burger and telling you how to eat it.
It is vaguely like that, but but I'm not sure the analogy facilitates understanding of this subject. McDonalds shouldn't tell you how you can eat your burger, therefore... companies must not enforce any terms on their services aside from those things. Why?
I'm not saying any term should be enforceable. Contract law has a long history against that. I just wonder how and where you draw the line and what existing law is insufficient.
>Why should a government prohibit private parties from agreeing to anything other than those 3 things?
because ToS have been long used to demand unreasonable things and threaten people with expensive lawsuits. The advantage of companies losing bullying power significantly outweighs the disadvantage of less business freedom
ToS are normally "contracts" (hard to even call them that) between a large corporation with very high resources for a lawsuit and an individual with very low resources. The power imbalance makes challenging ToS for the individual unfeasible in 99% of cases
> because ToS have been long used to demand unreasonable things and threaten people with expensive lawsuits. The advantage of companies losing bullying power significantly outweighs the disadvantage of less business freedom
Why those in particular though? The criminal law one sure that's a part of contract law already. Why the others? Why not different ones? It was just asserted that those were reasonable and no other terms are.
Because the power is disproportionally concentrated with one party - the service provider. The users of the service are numerous, comparatively small and uncoordinated.
In a situation like that, users have no means of resisting egregious terms, and no you cannot pull up stuff like "if you don't like it, don't buy it". As I wrote, the users are uncoordinated, and would take a huge effort to coordinate. Boycotting services rarely works (if ever). So what we end up with is that legal teams employed by firms optimize to shove as much bullshit into ToS as they can, the users grind their teeth and bear the bullshit, and get shittier service. Nobody really wins, because I'd argue the marginal gain for the company is minimal at best from this.
The government is not there just to enforce laws, but also to legislate such that the scales are balanced. Otherwise we may as well live in a dictatorship.
IMHO the problem is allowing changes to terms and conditions for existing contracts. If I have a contract with a company, that contract was made under existing T&C. The company should not be able to change those conditions without my explicit permission. Denying me service if I disagree should not be a valid option.
I get this periodically on our overly-computerized car: Here are new T&C, click yes to agree. You can make the screen go away temporarily, but there is no options to say "no, I disagree".
Here in Sweden the thing that makes something a contract is that you can't change it-- that it has definite provisions that have been agreed and that both parties actually expect the other to hold up their part.
The US breaking its contract law to treat non-contracts as contracts is one of the most insane things I've seen a legal system do to itself.
I do not think this is true for Sweden.
The key difference, is that the US is many jurisdictions (Federal + 50 states + a lot of others, from counties to cities to territories to MANY others), and the variance amongst those is high.
The key thing well regulated places like Sweden get right, is that in consumer contracts you have minimum bars that you must meet regardless of what you can get the consumer to agree to. So, for instance, return policies, for goods bought online have minimum standards they must meet.
In the US, these things have huge variability. There are well regulated states, and well, the others.
>The key thing well regulated places like Sweden get right, is that in consumer contracts you have minimum bars that you must meet regardless of what you can get the consumer to agree to. So, for instance, return policies, for goods bought online have minimum standards they must meet.
Yes, but Swedish contract law actually is like this. A contract is a specific agreement, it can never be "Oh well, you can add provisions as you like if you send them to me" or "I will pay whatever".
This is not true. It is 100% possible to write a contract in Sweden where one of the paragraphs says that you can change it in this and that way. And if we're talking about business to business contracts, it will probably in almost all cases be enforceable, even if you're writing that one party can just announce changes. In fact, I think most business to business contracts have some kind of clause specifying that it is possible to raise prices or change certain things.
That absolutely isn't true. You can enter into agreements about how to form a contract, but a contract is definite, completely specific, with no changing provisions. That's what makes it a contract.
If you have an agreement that says one party can announce changes, you don't have a contract, because those changes were not agreed to.
I am not sure that is correct. At the least it sounds to be a violation of EU laws if this were possible in Sweden; but, even aside from it, I do not think a contract can be changed willy-nilly without offering termination of the service in due time.
Presumable in Sweeden you can agree to new contract that supercedes the current one? That's all that's (argueable) happening here.
To me the insane part is that contracts don't have to be registered with the courts (or some qualified third party) ahead of time.
Like each party could show up with their own piece of paper (or not be able to provide it). Which is largely the issue here in that one party is showing up with a 2021 document and the other a 2023 document.
>Presumable in Sweeden you can agree to new contract that supercedes the current one? That's all that's (argueable) happening here.
Yes, of course.
We don't have any rules about contracts needing to be written down or registered or anything of that sort. Even verbal agreement are valid, and you are entering into simple contracts even when you buy something in a store.
I got one of these on my tv. I returned it.
There is a strange phenomena where introducing tech makes people suddenly blind or numb to established rules.
Can you imagine buying a car in the seventies and a month later finding a technician under your parked car making adjustments to it? You’d kick them out and call the police. But put an internet connection in between and it’s ok.
Same goes for wiretapping (compare Nixon vs current state), unlicensed hotels and cabs being ok when booked by an app, and so on.
The other side of this is that companies do want to change their T&C from time to time, so what do they do, force you to quit and then sign up again? That adds a lot of friction. Or do they tag things and say "Customer X signed up on this date, so he is bound by T&C number 12, whereas this other customer signed up a year later and is bound by T&C number 13". That seems unwieldy since there is a common infrastructure.
I get emails from time to time that "Policy X has changed and will take a effect in X weeks" so at least I'm given advance notice, and am basically OK with that approach as long as the changes are spelled out clearly and not hidden in hundreds of pages of legalese. Maybe an LLM would help here, and translate what the new changes in terms really means so I can decide whether to continue with the service or not. In general I'm OK as long as I'm given enough notice and it's clear what is happening.
The same thing happens with pricing. What does a company do when they want to increase rates, or change their products? They send out a notification that starting on a certain date, the prices will go up. I don't think anyone objects to that. How is a T&C change different?
I work for a digital bank and the versioning is essentially exactly how we handle T&Cs. The user accepts a certain version of some terms, and if we launch for example a new product that requires changed T&Cs then we ask the user to accept them if they want to use the new product. If they don't, well, then they just keep using the existing offering without accepting any new terms.
My Apple TV started doing this. New Terms, agree or “not now”. Ok how about never?
But the “initial” T&C allows them to cancel your contract unless there’s a minimum contractual period. They can take that opportunity to force you into a deal change. The change is that now just using the service is considered consent.
The real problem is that the law allows this power imbalance and doesn’t tip the scales to even it out for the end user. That for me is evidence that the law is made for the companies (probably by the companies too).
I have the same in the car. Been postponing for 2 years now.
I wonder if this can be weaponized by users too (probably no legal basis for this), just send them a new T&C again and again and say delivering the service is consent. Force the companies to say the quiet part out loud: users are not allowed to have the same liberties as the company.
> That for me is evidence that the law is made for the companies (probably by the companies too).
Yes, everything is becoming more and more convenient for big corporations while individual citizens need to navigate an ever increasingly complex world. Laws are designed to protect capital not individual citizens nor society. That never ends well.
>just send them a new T&C every day and say delivering the service is consent.
That’s domestic terrorism (charges)
If you decline the new contract, you're entirely welcome to continue on the old T&C.
Worth noting, the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke.
Also worth noting, the old T&C you agreed to probably included a clause about these sorts of updates, too.
So, right there, you've already explicitly agreed to a contract that can be terminated if you don't accept updates.
> The company should not be able to change those conditions without my explicit permission.
The legal argument is that (a) you were explicitly notified of these changes, (b) your rights to use the service under the previous contract have been revoked, and (c) you're continuing to use the service.
So, either you're stealing their service, or you did in fact explicitly agree to the new contract - "“Parties traditionally manifest assent by written or spoken word, but they can also do so through conduct.” Berman, 30 F.4th at 855."
> If you decline the new contract, you're entirely welcome to continue on the old T&C.
I think the point of contention here is that in practice, there is no way to continue on the old terms of service/contract. Suppose you're using a note taking app, and one day they update their terms of service to say that they can use your notes to train their AI. "Continued use implies consent," so you are locked into the new terms of service unless you stop using the app right then and there. You are not afforded the opportunity to decline the new terms of service and continue on the old ones.
Clauses existing, have very little to do with it being enforceable.
Vader might say he can change the deal at any point, but consumer law generally requires that what is purchased reflects what is advertised.
If you don't agree to a new set of terms, because the service is changed from what you purchased, then both parties generally should still be party to the previous.
Notification alone, is not enough. Agreement is required.
Hm. It seems that use actually goes two ways. They continue to use my information even when I leave their platform. Does this mean I can email info@google.com updated TOS, since I am a party to it I guess, and if they keep selling my info they accept it?
No, because of the legal principle of habeas pecuniam (you can't afford as many lawyers as Google)
No, you don’t have the means obtain a similar ruling from the court.
For those not familiar with US appeals courts, this is an unpublished order, which means that it's (broadly speaking; there are subtleties) not precedent and applies to this case alone.
Isn't the fact that it applies to _any_ case precedent?
Like if you're a lawyer and you read this do you go "My client will never win a case like this?" or do you go "we should go to trial"?
Sure you won't get summary judgement but if the courts rule this way once they can rule this way again.
Well, just one step more, and we'll have "TOS may be unilaterally updated by publishing the new terms on the firm's web site, it is entirely the user's duty to keep himself up to date, continued use implies unrevocable consent and giving up the right to re-negotiate" legal as well.
Thanks, outlook moved it to spam. Will auto delete it in 30 days.
My personal preference is for laws that promote reasonable limits on "Standard terms and conditions" and then recognizing that nobody reads them and making them applicable regardless of whether people read them or not. Then companies can stop pretending like people are reading the standard terms and unfair terms are just unenforceable. This does require that your civil law defines what unfair terms look like (generally that they are too one sided in favor of the contractor or are surprising given the service provided).
Obviously, this doesn't exist in the USA but does exist in (for example) the Netherlands. I would recommend lobbying in your country for such laws since in practice the vast majority of contracts like these that people face aren't actually negotiated nor negotiable.
Here is a critique of this case which I came across the other day, and may be of interest to you: https://blog.ericgoldman.org/archives/2026/03/ninth-circuit-...
I read ninth circle of hell, but this is clearly about ninth circuit. of hell or elsewhere, I dare not say.
Good analysis. Addresses some of the questions here.
Do you own a semi-popular product? Just send an email to users saying USE OF THIS PRODUCT NOW COSTS 1 BILLION DOLLARS.
And target some user with some money to lose and sue them for it.
Why not remove TOS completely, if your provider is anyway forcing new terms?
Suppose I start with simple TOS at the beginning: do not use in criminal scenarios
Then I change it to: do whatever you do with it, you are responsible for it anyways
I can even do this per sign-up, show TOS which makes sense, then next day send new TOS to allow everything
by reading or not reading this comment, you imply consent for me to access, manipulate, and/or assume control of any of your checking and savings accounts, investments, stocks, bonds, options, futures, securities, lines of credit, and real estate that you hold now or may acquire in the future, regardless of my chosen method or manner of access. disputes arising from any such activity shall be arbitrated by me. you may opt out at any time by replying “I CONSENT”
You're going to run into problems with the concept of an unconscionable contract.
US law fails to recognize real world practice. It's bad engineering at its finest.
The analysis isn't great. In particular, they say "this is a three-factor test, two of the factors are in favor, one is against, two is more than one, so Tile is fine". Normally you'd expect some kind of analysis of how much weight each factor contributes.
That said, they do also say this:
> we determine that Appellees received inquiry notice of the Oct. 2023 Terms. Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” Godun v. JustAnswer LLC, 135 F.4th 699, 710 (9th Cir. 2025), and we do not hold that notice by mass email establishes inquiry notice in every case.
So the HN headline is misleading at best.
(They also note that, while they should consider how normal internet users behave, they can't do this because "there is very little empirical evidence regarding" the question. So they substitute a discussion of how reasonable they find Tile's actions in the abstract.)
Naturally this does not apply in every case. But the comment is fair, I updated headline to be clearer.
>US Court of Appeals
Call me when the only court that matters makes a move.
The implications for B2B contracts are significant here. In construction, for example, subcontractor agreements often reference separate terms documents that get updated independently. If email notice plus continued use constitutes acceptance, it changes the calculus for how companies manage contract amendments across multi-party project teams. The practical challenge is that on a large project you might have 50+ subcontractors who all need to actively acknowledge revised terms, and this ruling suggests passive acknowledgment through continued use may suffice.
Even if it makes things overly complicated sometimes, I like the EU style that forces companies to make people actively confirm their consent, and puts the 'inform' part of 'informed consent' into the company's responsibility.
By both sides?
Reminds me of the guy that rewrote the terms of his credit card application and succeeded
https://www.independent.co.uk/news/world/europe/read-the-sma...
On a much smaller scale I did the same thing with a consulting contract. They sent it me and said to full in my own job description and "check the contract". The laziness annoyed me, so I altered the payment terms from 30 days to 7. Every month they paid after around 15 days and I let it go, but one month they hadn't paid after 31 days and I sent them an invoice for late payment for every single invoice to that date (only 4 or 5). I didn't think they'd pay it but they did
Now this is a case that's something I can get behind and fight for.
worth a shot
Of course not
I remember various judges writing ope-eds about being presented a 40 page TOS for updates. Southpark also did an episode.
TOS simultaneously became extremly important, commanding CEO attention and became completely ritulized.
I'm surprised that the legal profession has tolerated this is escalation of dysfunction.
I have altered the deal. Pray I do not alter it again.
The original Minecraft EULA did not have any of the usual boilerplate language to support unilaterally modifying the terms. I had a Minecraft account purchased under this original EULA which was modified a year or two after I bought the game. Around 5 or 6 years ago, Mojang emailed me about changes to their login system that would require me to migrate my account to Microsoft’s system (no doubt under new T+C), but the migration process never worked and they never responded to my support requests.
When I tried to resolve it a couple of years ago I received boilerplate emails informing me that the migration period had ended.
So if you deal with companies that simply don’t honor their contracts—companies like Microsoft and Mojang—you don’t even need use to imply consent, because they can just lock you out of your purchases and tell you to pound sand.
Fundamentally, the court seems to be treating this identically to a scenario where the user was ignorant and failed to read their inbox. The court seems to be completely disregarding that it was misdelivered into spam. The word "spam" doesn't even appear more than twice in the ruling (one of which is in an irrelevant footnote)!
Why the heck is the court completely oblivious to that fact when weighing the facts on each side? You'd think a case hinging on a crucial email being sent into spam would at least mention that fact more than once? (!) The court certainly seems to take into account common practices in every other aspect of the case except that most crucial one... why?! No explanation whatsoever? Would this really survive on a hypothetical appeal?
> As Tile users, each Appellee provided an email address during account registration, and should have expected to receive relevant updates there while the account was active.
Well yes, they did, but:
> Because “there is very little empirical evidence regarding” Internet users’ expectations, the focus of this inquiry is “on the providers, which have complete control over the design of their [apps and] websites and can choose from myriad ways of presenting contractual terms to consumers online.”
...Tile should've expected that its email might go into spam, right? Shouldn't the court at least mention this, even if it doesn't lend it any weight?
> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” and we do not hold that notice by mass email establishes inquiry notice in every case.
At least they say their ruling doesn't generalize...
>> You'd think a case hinging on a crucial email being sent into spam would at least mention that fact more than once?!
> Broad did not locate the Oct. 2023 Notice until January 2024, when she affirmatively searched for the email and found it in her spam folder.
I think it's rather relevant that she affirmatively searched for and found the email?
Unless the user’s e-mail was controlled by their counter-party, what folder the message ended up in seems to be irrelevant to me. The user is the one who selected the e-mail inbox service provider, and has some degree of control over message categorization.
That does sound like there's an exploitable element there isn't it?
Statistically speaking, most people use one of the biggest email providers, which use their own models to detect spam (or even quietly drop messages). If you're doing an unpopular TOS change, why not set the mail up to still be RFC compliant but in such a way where the mail isn't going to be allowed through by any of the providers. Then you can just claim the problem is userside.
For example, the Message-ID header is technically not required (SHOULD rather than MUST), but as a spam detection measure, Gmail just drops the message entirely for workspace domains: https://news.ycombinator.com/item?id=46989217
> The court seems to be completely disregarding that it was misdelivered into spam.
Spam categorization isn't a delivery issue. The delivery is the same whether you, upon taking delivery, toss the message into a bin labeled "spam" or one labeled "inbox".
I guess it's an instance of a more general principle: sending an email doesn't guarantee it gets to the user's inbox, never mind that it gets read.
Even if you are OK with the idea that a user can be presented updated TOS with no option to disagree (I don't, but put that aside for a moment), it should still require a mechanism that actually guarantees (or at least verifies) that the user has seen that the terms are updated. Email is not that. (An unskippable notice on login to a web service would be.)
the key issue is the interpretation of "consent" when continued use is the only option. aree users truly consenting, or are they simply left with no alternative?
So much stuff is getting put in Terms of Services that have nothing to do with using the service. Games will tell you how your allowed to make fan art in them. If I am drawing a picture at my desk I'm not even in the game.
I had the somehow the same problem with a mobile operator here in EU. They said just by sending an email I agree with their new terms and subscriptions. It's a gray area, IMO. They could simply terminate the service but who wants that?
Might be fun to take some BSD or MIT licenses and send out e-mails updating them to GPLv3...
No problem - I'll just have my AI copy it to turn it back to MIT :)
To be fair, this document says that they updated TOS and by continuing to use the app, you agree. (End of page 3)
Is this panel (Gould/Clinton, Nguyen/Obama, and Bennett/Trump) a standard pull for the ninth? Considering how many judges are in the ninth:
> https://en.wikipedia.org/wiki/United_States_Court_of_Appeals...
It seems less likely to (randomly) have the same panel on two higher profile cases so close to each other:
> https://courthousenews.com/ninth-circuit-keeps-block-on-dhs-...
So I'm wondering if it is some procedural thing I am not privy to?
How do they ensure that the email reaches the destination though?
I have had emails never delivered to me, not due to my own fault but the service provider filtering it away before I could do anything. It is also dangerous to assume "use implies consent". I am sure there are other ways to ensure terms of use to be changed; if it is a web-application then one could only resume using it if the services were accepted before.
> In October 2023, Tile sent to all accountholders […] an email with the heading “Updated Terms of Service and Privacy Policy” […] to the email address provided by accountholders during registration, […] “[i]f you continue to use any of [Life360 and Tile’s] apps, or access our websites (other than to read the new terms) on or after November 26, 2023, you are agreeing to the [Oct. 2023 Terms].”
> Broad did not locate the Oct. 2023 Notice until January 2024, when she affirmatively searched for the email and found it in her spam folder. […]
> Doe “never knew that Tile sent” the Oct. 2023 Notice and so never “read any revised or updated Terms.”
> The district court held that neither Broad nor Doe assented to the Oct. 2023 Terms.
So then it was challenged, and the appeals court gets into the weeds: were the Appellees “on inquiry notice of the Oct. 2023 Terms”? (“Inquiry notice” is clearly a specific legal term, I can’t comment on its precise meaning.)
The entire thing seems to hinge on whether appropriate notice was given: it seems to be accepted by all parties and case law that “continuing to use after such-and-such a date implies consent” is okay. (This is explored at the end of the document: simply using the app is treated as “unambiguously manifesting assent”, presuming inquiry notice.)
The court decides: yes, it was sent in the appropriate way and clearly marked and described. And
> Although the email did not say specifically that the arbitration agreement would be updated, reasonable notice does not require the email to discuss every revision.
They do say
> Tile could have done more to ensure that all its users were on inquiry notice of the Oct. 2023 Terms. Tile could, for example, have interrupted users’ next visit to the Tile App with a clickwrap pop-up notice. […] Because Tile should have known that at least some of its users do not closely monitor email, […] and Tile should have furnished additional notices, this factor weighs against finding inquiry notice.
They conclude: two factors for, one against, and thus determine that inquiry notice was received, although Tile didn’t handle things properly themselves, and should have done more.
But they avoid setting this as universal precedent:
> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” […] and we do not hold that notice by mass email establishes inquiry notice in every case.
—⁂—
This is my interpretation from a brief read of this interesting-sounding document. I’m neither a lawyer nor American. My understanding is almost certainly incomplete. I think I have avoided inserting any interpretation of my own, others can do that.
The argument seems to be that for Broad, there was clear receipt of the email, even if it was delayed by being in the spam folder - we know she found it eventually.
Doe is a bit more interesting, since she re-downloaded the app, and they're saying that in-and-of-itself is sufficiently clear intent/consent to the current Terms of Service
("Doe unambiguously manifested assent to the Oct. 2023 Terms by downloading the Tile App in March 2024 and using the Scan and Secure feature in attempting to locate her alleged stalker’s Tile Tracker.")
The court sounds bought, I hope they paid them well.
well, I hope the companies doing that have someone watching contact@ to cut my acces when I send my version of thr updated terms of service, since allowing my usage can imply consent. Right?
The email account I cannot access because google decided to ask me for a captcha for which I have no knowledge of, and the don’t have a human help desk that I can contact to prove ownership by providing ID documents?
Got it.
Exactly.
I don't understand how a community such as this, as connected as it is, can't back channel a message to Google brass to do something about these lockouts, which occur frequently and are unnecessary. There is no way Google doesn't know about them.
Gmail is an essential piece of pervasive personal infrastructure, upon which hundreds of millions of people rely. People are losing irreplaceable data for lack of care on the part of Google. The cost of providing a way to prove identity while maintaining security ought to be part of the cost of doing business for Google as it provides Gmail.
Surely there are some Google employees lurking who can chime in on this frustrating neglect.
The cost of adding a support desk outweighs any potential profit, I would imagine by a huge amount given accounts are ‘free’.
It’s not that the executive don’t know, it’s that they don’t care.
If they weren't making enough money from having people use their "free" accounts, they wouldn't offer them.
The jackasses at Ring provide a clickwrap forced EULA consent in their app update changelogs.
https://play.google.com/store/apps/details?id=com.ringapp
They slip "By using this app, you agree to Ring’s Terms of Service (ring.com/terms). You can find Ring’s privacy notice at ring.com/privacy-notice." into their app update changenotes for every update.
US capitalism (aka, powerful financial entities driving policy).
To be fair, not all people in business or government prioritize "the all-mighty dollar" over everything else. Unfortunately, those who don't usually have principles; those who do often are willing to break rules. This is not an even match.
It's just an appellate court ruling, not the summary execution of Bernie's last faithful warrior. It can't even set precedent since the opinions are unpublished.
lol what a load of crap.. since when can a contract be changed by one side only without the other one signing it off?
In summary, the Ninth Circuit applied California law to determine that users received sufficient notice. Are other states' laws on notice similar enough to California law for this ruling to be applied broadly? I understand that the order is unpublished so the ruling has little precedential value regardless but I wonder whether the three-factor test is used in other states.