Re Federal court finds online agreements are binding

["Dave Farber" <farber () gmail com>]

Begin forwarded message:

> From: Karl Auerbach <karl () cavebear com>
> Date: August 19, 2017 at 6:24:11 PM EDT
> To: dave () farber net, ip <ip () listbox com>, Richard Forno <rforno () infowarrior org>
> Subject: Re: [IP] Federal court finds online agreements are binding
>
> > On 8/19/17 11:41 AM, Dave Farber wrote:
> > > From: Richard Forno <rforno () infowarrior org>
> > > Subject: Federal court finds online agreements are binding
> > > Uber Wins Ruling on ’Terms of Service’ Agreements
> The terms of service proposed by a website is only half of the contractual proposals that go back-forth when a user 
> visits a website.
>
> In addition to the terms of service proposed by the website there is also Do Not Track proposed by the user.
>
> Let us say that a user has asserted Do Not Track via his web browser and Uber ignores it.
>
> I would contend that by ignoring the Do Not Track a situation has been created in which there has been a failure of 
> "mutual meeting of the minds" essential to transformation of of Uber's own Terms of Service into a mutually binding 
> contract.
>
> For some reason the argument about Terms of Service has always been conceived as a one way system - a one way system 
> in which the website proposes and the user is bound.
>
> Yet, it is equally valid to consider something more akin to the classical mutual offer/acceptance model of contract 
> formation.  In this model in addition to the terms of service proposed by the website, the user proposes his own 
> terms and conditions, among which are is the Do Not Track indication.
>
> If term-of-service can bind adhesively bind a web user to a webserver's terms of service, even without an express 
> click-through, then it stands to reason that a user's Do Not Track should even more automatically adhere to the 
> website operator.
>
> Or to put it the other way around - if a user comes to Uber with a Do Not Track expressed and Uber proceeds to create 
> tracking data from that visit then it stands to reason, or at least to a notion of     equality of fairness, that 
> Uber's terms of service ought to be equally disposable by the user.
>
>         --karl--
>
> This message was sent to the list address and trashed, but can be found online.



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