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California Bill Would Safeguard Consumers' Rights To Criticize Firms Online

samzenpus posted about 2 months ago | from the say-what-you-will dept.

The Internet 160

An anonymous reader writes in with news about a California bill that aims to protect online reviewers’ rights."The proposed law appears to take aim at online licensing agreements that consumers often enter into with companies when they click through the many boilerplate terms and conditions of various online services. Buried deep in the small print of a number of these contacts are provisions stating that consumers agree not to write negative reviews about the service provider. 'If merchants think that our First Amendment free speech rights need to be curtailed, they should say so upfront and in plain language,' Pérez explained of the impetus for his bill, as reported by the Times."

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Not First Amendment (3, Insightful)

MetalliQaZ (539913) | about 2 months ago | (#47040789)

The First Amendment protects us from prosecution by the government. It doesn't protect us from civil matters with private companies. This Pérez guy should know that.

Re:Not First Amendment (3, Informative)

i kan reed (749298) | about 2 months ago | (#47040813)

Actually, there's certainly a case to be made that sense contracts are enforced by law, prohibitions are what laws can contain are essentially prohibitions are contracts.

For example, it's well understood that the 13th amendment prevents you from signing yourself away as a slave.

Re:Not First Amendment (1)

smitty_one_each (243267) | about 2 months ago | (#47041117)

But the 13th Amendment, alas, does not protect us from the economic effects of Congress borrowing you into penury.
So we can enjoy being the freest debt-slaves EVAR!

Re:Not First Amendment (2)

i kan reed (749298) | about 2 months ago | (#47041283)

Yeah, that's because that's (currently) a stupid thing to be worrying about. And only an irredeemable idiot would seriously compare it to forced servitude.

Re:Not First Amendment (1)

Ralph Wiggam (22354) | about 2 months ago | (#47041325)

The new cool trend among idiots is to compare random things to slavery.

Re:Not First Amendment (0)

Anonymous Coward | about 2 months ago | (#47041635)

No time to respond, scrum master is cracking down on the W.I.P

Re:Not First Amendment (0)

Anonymous Coward | about 2 months ago | (#47041759)

You shouldn't have said that.

Re:Not First Amendment (1)

Darinbob (1142669) | about 2 months ago | (#47042003)

The trend is definitely more cool than being a slave.

(currently) (1)

smitty_one_each (243267) | about 2 months ago | (#47041465)

Yeah, I guess as long as we plan to quit cheating on our spouses (someday), then the basic immorality is somehow cool.

Re:Not First Amendment (4, Informative)

sumdumass (711423) | about 2 months ago | (#47041207)

lol.. It's not quite that simple. The 13th amendment makes slavery and/or involuntary servitude illegal in the US and jurisdictions the US controls and grants congress the power to enforce it. Theoretically, you can sign yourself away as a slave in a foreign land- if it wasn't for the US government maintaining a claim of jurisdiction over US citizens wherever they go. (granted this jurisdictions is somewhat limited)

On the other hand, the first amendment says congress shall make no laws abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

In this case, it is pretty clear what the intent was. Congress is not to make any laws. It doesn't say that you cannot contract your speech rights away with a third party or that the loss of free speech in any way is prohibited.

Now I know I left the religious freedoms portion off and I did that because it gets ignored quite a bit under the guise of separation of church and state which is no where in the first amendment.

Re:Not First Amendment (1)

i kan reed (749298) | about 2 months ago | (#47041291)

"it is pretty clear" means "I have no idea what actual judicial interpretation includes"

Thanks for the clarification.

Re:Not First Amendment (1)

sumdumass (711423) | about 2 months ago | (#47041497)

Why don't you put up some references to this supposed judicial interpretation?

I'm sure that you will be able to find quite a bit of it easily from how confident you think you are.

Go ahead, do some research, I'll wait.

Re:Not First Amendment (1)

CrimsonAvenger (580665) | about 2 months ago | (#47041299)

On the other hand, the first amendment says congress shall make no laws abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

In this case, it is pretty clear what the intent was. Congress is not to make any laws. It doesn't say that you cannot contract your speech rights away with a third party or that the loss of free speech in any way is prohibited.

Nonetheless, numerous rulings by the Supremes have established quite a bit more power to the First than "Congress shall make no laws...".

As an obvious example, the local sheriff isn't actually allowed to arrest you for displaying a US flag upside-down. Though apparently one tried that recently, and is hopefully going to be sued into next week as a result.

Note, for the people who aren't local to the US - the sheriff is a county-level official, in no way associated with Congress. Hell, the sheriff isn't even associated with the State government.

Re:Not First Amendment (0)

Anonymous Coward | about 2 months ago | (#47041413)

A local sheriff cannot arrest you for displaying a flag upside down because free speech rights are incorporated against the states by the 14th Amendment, not because it violates the 1st Amendment.

Re:Not First Amendment (2)

uncqual (836337) | about 2 months ago | (#47041447)

See incorporation doctrine [wikipedia.org] for more info on why most individual rights enumerated in the Bill of Rights can also not be infringed on by subservient governments. Prior to the early 1900's though, the Bill of Rights was understood to restrict only the Federal government.

Re:Not First Amendment (0)

Anonymous Coward | about 2 months ago | (#47041619)

Nonetheless, numerous rulings by the Supremes have established quite a bit more power to the First than "Congress shall make no laws...".

Which is entirely questionable. The Constitution and most of the accompanying amendments (at least including the bill of rights) was written in fairly exact, precise language. Anybody trying to "interpret" it is trying to sell you something or sell you to someone.

Re:Not First Amendment (0)

Anonymous Coward | about 2 months ago | (#47042729)

Not at all correct.

The U.S. Constitution is purposely open ended and vague. There are plenty of much more detailed Constitutions, even within the U.S. itself, such as the Alabama state constitution which is 340,000+ words long (40x longer than the U.S. Constitution) and comprises the majority of the state's corpus of law!

Re:Not First Amendment (1)

mrbester (200927) | about 2 months ago | (#47041633)

It's funny how much attachment there is to some fabric with a certain pattern on it. Jihadists burning the US flag, uproar, they're EVUL, kill 'em all. When they decided to burn the Union flag as well because of British involvement, we were just bemused that they thought burning *a piece of cloth* would get up our noses. But then we don't swear allegiance to the flag; we just pity those who fly it upside down...

Re:Not First Amendment (1)

penix1 (722987) | about 2 months ago | (#47042691)

Is there an upside down to the Union Jack? I seriously can't tell.

Re:Not First Amendment (1)

BancBoy (578080) | about 2 months ago | (#47042943)

Nobody mentioned the Navy, it was the Union Flag that was referenced.

Re:Not First Amendment (0)

Anonymous Coward | about 2 months ago | (#47042697)

Counties are sub-agencies of the state. County sheriffs are therefore agents of the state government and are treated as such under the law.

Re:Not First Amendment (1)

tragedy (27079) | about 2 months ago | (#47042769)

lol.. It's not quite that simple. The 13th amendment makes slavery and/or involuntary servitude illegal in the US and jurisdictions the US controls and grants congress the power to enforce it.

Actually, it's not that simple either. The 13th amendment makes certain types of slavery and/or involuntary servitude illegal in the US and jurisdictions the US controls. Basically, hereditary slavery is out. So, if you're currently a slave, your children aren't automatically slaves. The 13th amendment still allows for you to become a slave either temporarily or permanently as a result of any conviction for any crime. That includes being sold to private citizens effectively as property. The only real protection is the 8th amendment, which vaguely protects you from cruel and unusual punishment. Of course, the 8th didn't protect people who were slaves back before the 13th. There's the argument that what was being done to them from birth wasn't a punishment, therefore it didn't fall under the 8th. This same argument crops up a lot in modern times, often in relation to various lists (no fly, terrorist watch, sex offender, plus various others, some of which are probably still secret) which, although quite harmful to be on, are supposedly not punishments. Of course, that argument is in complete defiance of the 5th amendment where life, liberty and property are not supposed to be deprived without due process of law. So, anyway, hereditary slavery was basically unconstitutional _before_ the 13th amendment, but that fact was simply ignored, and the 13th amendment only did away with hereditary slavery.

Re:Not First Amendment (2)

mjwx (966435) | about 2 months ago | (#47042855)

On the other hand, the first amendment says congress shall make no laws abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

In this case, it is pretty clear what the intent was. Congress is not to make any laws. It doesn't say that you cannot contract your speech rights away with a third party or that the loss of free speech in any way is prohibited.

Free speech in it's purest form means the government cant arrest you for what you say about the government. After that it gets open to interpretation.

However free speech does not protect you from criticism, nor doe it give you free license to say whatever you want wherever you want. There are restrictions on speech (the infamous "fire in a crowded theatre" example) and it does not protect you from the consequences of your speech.

Whilst I fully support your right to criticise other individuals and companies criticism must be truthful and accurate. Sadly most people who write criticism online are utterly incapable of this. Small complaints that may be easily addressed get blown completely out of proportion and much of it is outright fabrication because the critic is being emotive rather than rational. This gets to the point where people dont want their complaint redressed, rather they just want to hurt the company they feel wronged them. This is the secondary reason I dont rely on review sites like Yelp or Trip Advisor, the reviews are emotive rubbish and have no details (the main reason is because I'm not their client, I'm their product. Their client are the advertisers so the site will do what the advertisers demand, which is not in my interest).

I feel that some people go to far with criticism and enter the world of slander, companies and individuals should have the right to defend against this.

As I said, I fully support your right to criticise, but the people you criticise have the right of reply.

Re:Not First Amendment (1)

fuzzyfuzzyfungus (1223518) | about 2 months ago | (#47041241)

There's also the (sadly ignored in our delightful era of clickwrap contracts that you agree to in the process of opening them up to read them...) fact that contract law is intended to be a codification of agreement between parties, not some sort of magic ritual. Even if you are contracting about something entirely banal and otherwise permissible, the rule isn't "a signature's a signature, regardless of how I befuddle you into getting it". It's not...exactly news... that people don't read the zillion pages of 2 point flyspeck sans legalese before clicking "I agree", so the state could simply be asserting that, for anything not commonly understood to be part of the purchase process, the fact that you put it on page 37 and the user clicked the button simply isn't relevant to the actual agreement you came to, and that anything of importance is going to have to be a lot more visible.

My (layman's) understanding is that a lot of the details of what make a contract a valid agreement are caselaw, judged in part on the specifics of the situation(clickwrap contract to buy $10 widget, probably minimal respect for the 'agreement', your lawyers sitting down with their lawyers and hashing it out line by line, probably greater deference to the result); but that doesn't preclude the state from clarifying a point it considers salient.

Re:Not First Amendment (2)

Darinbob (1142669) | about 2 months ago | (#47042197)

I do read the EULAs much of the time. And whenever I find a clause that I disagree with I end up agreeing anyway because it's nearly impossible to get a refund and completely impossible to negotiate new terms.

This is like after college when I was at a job interview and I had to sign a piece of paper saying that I give up my right under a specific California law before I could start the interview. I needed employment, it was impractical for me to ask for a postponement while I paid to consult with a lawyer, so I was stuck with either sign and maybe get a job or don't sign and go away. So I signed it. Didn't get the job.

So the point is, people will click "I agree" even if they do read the EULA, they will sign on the dotted line even if they disagree, and so on. There really isn't a practical alternative. The remedy here is for governments to make laws disallowing this, or guaranteeing that rights can not be waived away, or restricting what can be included in a license agreement. Especially when it comes to seriously egregious violations of rights which are commonly asked for (requiring arbitration agreements, prohibiting class action suits).

Re:Not First Amendment (2, Informative)

Anonymous Coward | about 2 months ago | (#47040829)

The problem is that EULAs shouldn't be able to over-ride constitutional rights, especially as a means of trying to cover up a bad product. If you buy a product and it is bad - doesn't work as advertised, poor quality, or whatever - you have the First Amendment right to, for instance, open up a personal blog and write a review of the product. What they're trying to do is quash bad reviews before they can pop up.

Re:Not First Amendment (5, Interesting)

Jason Levine (196982) | about 2 months ago | (#47041057)

It's even worse than that. The article gives the example of a company, KlearGear, trying to charge a couple because they left a negative review of the company. The wrinkle in this case: The negative review was posted three years before the lawsuit and before the "you can't criticize us online" text entered into the EULA. So the companies don't just want you to agree to whatever is in their EULA, they think you accepting the EULA means you also accept any future version of the EULA no matter what restrictions get added on.

In the case of the couple, the charge was sent to a collections agency which hurt the couple's credit rating. They, in turn, sued KlearGear to have the debt declared null and void. When KlearGear didn't show up to challenge the suit, the judge ruled in favor of the couple. What would have happened had KlearGear had a better legal team, though? Even if they didn't win, they could have easily tied the couple up in court for months or years, forcing them to bankruptcy with legal fees, until the company settled out of court with the couple. (Perhaps dropping the original fee in exchange for no precedent being set against the company and maybe even some token amount that wouldn't even cover the couples' legal costs.)

I agree that agreements can over-ride constitutional rights in some cases. For example, if I sign an NDA, I'm restricting my freedom of speech in a certain regard. However, these agreements should only be done on when something needs to be kept under wraps (details of a new product shown to reviewers early, for example), not as a matter-of-normal-business instituted when anyone has even the slightest business association with the company.

Re:Not First Amendment (1)

dkf (304284) | about 2 months ago | (#47041261)

It's even worse than that. The article gives the example of a company, KlearGear, trying to charge a couple because they left a negative review of the company. The wrinkle in this case: The negative review was posted three years before the lawsuit and before the "you can't criticize us online" text entered into the EULA. So the companies don't just want you to agree to whatever is in their EULA, they think you accepting the EULA means you also accept any future version of the EULA no matter what restrictions get added on.

How would a court even begin to believe that sort of thing might be conscionable?

Re:Not First Amendment (1)

pr0fessor (1940368) | about 2 months ago | (#47041835)

When someone has a good experience with a company they might recommend the business to friend if they ask, but if they have a bad experience and they are mad they will tell everyone post it on facebook and twitter anyone else that has ever had a bad experience with that company will comment on it and then it will get shared with there friends and their friends. Three years later it'll still be there at the top of a google search for company name.

This is what companies want to avoid but something like this is not going to fix the relationship they have with that customer. If they want a customer to remove a bad post then they need to fix the relationship with the customer they may not remove it but they might convince them to update it with a satisfying ending.

Re:Not First Amendment (1)

Darinbob (1142669) | about 2 months ago | (#47042283)

Ultimately, I think that company was just shoddy. I suspect they didn't even bother checking the facts before sending out the collection goons. They didn't defend themselves in court and no one answers their toll free phone number. It was a default judgement (thus no precedent is set, no victory against others who try the same thing).

It's a bit of harrassment really. You need no evidence whatsoever before you can hire a collection agency to try and extort money out of someone.

Re:Not First Amendment (1)

meerling (1487879) | about 2 months ago | (#47041127)

There has already been one case where a federal judge declared that no eula can take away your rights, no matter what the text of the eula says. It was a few years back and I'm not going to waste the time to try and look it up, but for those of you that don't get headaches looking at legalese, feel free to find a link to it.

Re:Not First Amendment (1)

ShanghaiBill (739463) | about 2 months ago | (#47041293)

The problem is that EULAs shouldn't be able to over-ride constitutional rights

It is not just EULAs. When I took my daughter to see a pediatrician, the pile of forms I was asked to fill out contain one that said I could not post any online reviews of the doctor. Since medical care is already very opaque, with little upfront information about doctor quality or even prices, I declined to sign it. The pediatrician saw us anyway, and seemed to be a very good doctor.

I live in California, and I really hope this law is written broadly enough to outlaw this kind of crap whether it occurs online or offline.

Re:Not First Amendment (1)

uncqual (836337) | about 2 months ago | (#47041527)

You can often enter into a contract with another party that restricts you from exercising the full breadth of your enumerated rights in the Bill of Rights.

For example, it's common in legal settlements that one, or both, parties are prohibited from revealing the terms of the settlement and, if they do, the offending party suffers financial consequences.

Another example, when you work for a company, you are almost always prohibited from publishing their internal trade secrets.

The EULA's don't override constitutional rights any more than the two examples I gave.

Re:Not First Amendment (0)

Anonymous Coward | about 2 months ago | (#47040843)

Since it's the government that ends up enforcing this, it very much is a constitutional issue.

Re:Not First Amendment (1)

fermion (181285) | about 2 months ago | (#47040897)

Suppose a EULA stated that as part of the website, the firm had the right, whenever they were in town, to stay at your house and borrow your car, and you would have to put in some hours working for them at the trade show, or doing door to door work, or making appoints with them, all for no pay. If you refuse, you will be taken to court for breech of contract, a civil matter.

Even though there is no specific constitutional case against this, it only says that the government cannot commandeer a citizens place unless in time of war, I am sure that if it made it to higher courts there might be a constitutional discussion. Which is to say that the constitution gives us rights, and those rights are sometime reflected in law, sometimes reflected in the absence of law. For instance, unlike the UK we can't be sued for saying bad things about a corporation. That is a right derived from the US Constitution.

Unfortunately many believe as the parent does that we only have very limited rights. This is why corporations feel comfortable about limited the average persons access to the courts. This is why we are afraid to speak our mind online when we get bad service or a bad product, when we have no problem doing the same thing in other public forums.

The private sector does not have special powers to destroy our right as humans and citizens. They cannot make us literal slaves just because we sign a contract. They should not be able to limit my speech or actions into perpetuity just because we make a single transaction. This is the problem with binding long term non compete agreements. As long as I agree to accept payment for my work, then I am subject to the reasonable restrictions of the person paying me. To say that until I die the person who used to pay me have total control over my actions is not reasonable.

Re:Not First Amendment (1)

Kozar_The_Malignant (738483) | about 2 months ago | (#47041233)

>working for them at the trade show, or doing door to door work, or making appoints with them, all for no pay. If you refuse, you will be taken to court for breech of contract, a civil matter.

One of the basic elements of contract law is that the contract, to be enforceable, must have legal subject matter. Since indentured servitude is specifically banned by the constitution, such a contract would be unenforceable.

Re:Not First Amendment (0)

Anonymous Coward | about 2 months ago | (#47041505)

Nope. The company simply would not be able to obtain specific performance of the contract, but you would be liable for money damages for the harm caused by your breach. It's contract law, not constitutional law.

Re:Not First Amendment (1)

uncqual (836337) | about 2 months ago | (#47041571)

If "some hours" was a named (and, perhaps, "reasonable" - not 1E100 for example) number of hours, this wouldn't be indentured servitude. Generally the consumer received consideration [wikipedia.org] (such as the use of the covered software) so there really isn't "no pay" in a broad sense. However, the arrangement described might fail to meet labor laws (minimum wage and the like).

Re:Not First Amendment (1)

sumdumass (711423) | about 2 months ago | (#47041407)

Your first mistake and probably the biggest mistake is in thinking the Constitution gives you rights. Nothing in the US constitution gives you rights, you have rights bestowed upon you by your creator and the constitution specifically limits government from taking those rights from you. If you would have paid attention in your US history classes, you would know that instead of inventing whatever you think fits the bill when you decide you need to know something.

With little exception, the US constitution does not in any way dictate to citizens. It is what the government is allowed and specifically not allowed to do.

Everything you whine about, is all about someone ignoring the details and getting part of the contracts fulfilled then deciding they don't want to put up their end. Half of it is already illegal or legally unenforceable too.

Re:Not First Amendment (1)

BilI_the_Engineer (3618871) | about 2 months ago | (#47043283)

Your first mistake and probably the biggest mistake is in thinking the Constitution gives you rights.

A mistake many people make. It's basically a list of powers that the government has, and it can't do anything more than that.

Nothing in the US constitution gives you rights

It establishes a government with limited powers that enables certain rights to exist; rights that many people have deemed desirable.

you have rights bestowed upon you by your creator

My parents?

If you would have paid attention in your US history classes, you would know that instead of inventing whatever you think fits the bill when you decide you need to know something.

If US history classes are teaching *anything* about a creator granting rights, something is horribly wrong. Well, I know the education system is bad, but at the very least, they thankfully never mentioned such a thing when I was in school.

Re:Not First Amendment (2)

sexconker (1179573) | about 2 months ago | (#47040943)

The First Amendment protects us from prosecution by the government. It doesn't protect us from civil matters with private companies. This Pérez guy should know that.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Congress makes laws. Corporations do not.
A contract limiting one's freedom of speech is entirely unenforceable, presuming our government is functioning properly.

If you sign an NDA, a "I won't post a bad review" clause, or whatever else, and then proceed to blab, you cannot be convicted of a crime. There is no crime and according to the First Amendment there can be NEVER be a crime based on speech. I am perfectly aware that our government is fucked up and we throw people in jail for speech.

You CAN be sued for any ACTUAL damages DIRECTLY related to your speech, IF it was defamatory / libelous.

You CAN be found to be in breach of contract, and subject to fines, termination of accounts, or whatever else you agreed to. Though you CANNOT be held to such terms if you didn't actually have a reasonable expectation to know about them. A contract is a legal meeting of the minds, and courts can and will throw out contracts when it's clear that they are presented in a dishonest, confusing, vague, or otherwise bullshit manner, or where it is clear there was no realistic expectation of all parties actually seeing, reading, understanding, and agreeing (see all the click-wrap horse shit, a site's terms of service, etc.).

Furthermore, Perez isn't stating that contracts between a private entity and an individual which have clauses restricting speech are unconstitutional - he's stating that such clauses need to be clear and upfront, and that sneaking them in is bullshit, as I've already explained. The bill reiterates that it's bullshit, and provides fines for assholes trying to write contracts in such a way.

Read the fucking bill:
http://www.leginfo.ca.gov/pub/... [ca.gov]

This bill would declare a contract or proposed contract for the sale or lease of consumer goods or services unlawful if it contains a provision requiring the consumer to waive his or her right to make any statement regarding the consumer's experience with the business, unless the waiver was knowing, voluntary, and intelligent, as specified.

Re:Not First Amendment (1)

Mitreya (579078) | about 2 months ago | (#47041081)

You CAN be sued for any ACTUAL damages DIRECTLY related to your speech, IF it was defamatory / libelous.

Not disagreeing with you...
However, you can be SUCCESSFULLY sued for actual damages, blah blah. Without that, you can STILL be sued albeit unsuccessfully. An eventually-lost lawsuit would still cost you a lot of money to defend yourself. Maybe more money than whatever damages you are accused of.

Re:Not First Amendment (1)

Jeff Flanagan (2981883) | about 2 months ago | (#47041167)

>An eventually-lost lawsuit would still cost you a lot of money to defend yourself. Maybe more money than whatever damages you are accused of.

Correct, and not just in cash, this can mean missing a day or more of work. Most of us are simply not in a position to defend ourselves from frivolous lawsuits.

Re:Not First Amendment (0)

Anonymous Coward | about 2 months ago | (#47041423)

The EULA stuff is pretty much an excuse to get around SLAPP lawsuit laws, pure and simple. So far, the best one I've come across was a year or two ago, one local firm's website that demanded a $10,000 fine for every review on any wabsite it deemed negative that any customers made about their products either bought there or in person. Needless to say, there are many other places to shop, and I've not seen that company around these days.

Sort of ironic how things work. Most EULAs force binding arbitration if the customer sues, while the company gets full access to the courts should they want to go at it.

Of course, someone will reply that a contract is a contract.

I've wondered about a pseudoanonymous website for rating. The real username to anonymous user pairing is done at a different company in another country, then people can use whatever pseudo-anonymous identity they want for reviews. If they troll, the offshore subsidiary gets the request to pull access, and the account (with all the linked anonymous sub-accounts) gets yanked. That way, people can be anonymous, while the username to real life person account info is well protected from petty civil suits, but trolls and shills are detectable and squashable.

Re:Not First Amendment (1)

ShanghaiBill (739463) | about 2 months ago | (#47041389)

A contract limiting one's freedom of speech is entirely unenforceable

Not true. NDAs are enforceable. A contract for legal representation almost always restricts what your lawyer can disclose about your case. Military enlistment contracts are also enforceable, and they significantly restrict your right to say, for instance, that your commanding officer is an idiot.

Re:Not First Amendment (1)

mrbester (200927) | about 2 months ago | (#47041675)

Is there such a thing as a click-through NDA? Surely a signature is required at the very least. Something a EULA does not provide for.

Re:Not First Amendment (0)

Anonymous Coward | about 2 months ago | (#47042071)

...and they significantly restrict your right to say, for instance, that your commanding officer is an idiot.

Oh no, you're still free to say that, as often as you like. Just be prepared for the consequences, which get worse as your rank increases. Then again, so long as your commander isn't a dick, as long as you attach, "With all due respect," to whatever you say, you're fine.

I actually know people that have gotten away with saying, "With all due respect sir, fuck off / you're an idiot."

Re:Not First Amendment (1)

ShanghaiBill (739463) | about 2 months ago | (#47042115)

Oh no, you're still free to say that, as often as you like. Just be prepared for the consequences

If there are legal consequences for speaking, then speech is not free. Otherwise, you could just as easily say that North Koreans have free speech, or that Americans are free to murder each other.

Re:Not First Amendment (2)

jc42 (318812) | about 2 months ago | (#47042109)

Congress makes laws. Corporations do not.

Of course not; that's why they give bribes (uh, I mean campaign contributions) to Congressional candidates (or to their "unaffiliated" support groups) to get the laws passed.

Re:Not First Amendment (1)

Charliemopps (1157495) | about 2 months ago | (#47041011)

The First Amendment protects us from prosecution by the government. It doesn't protect us from civil matters with private companies. This Pérez guy should know that.

It does a lot more than that. There have been many legal precidents set since the constitution which expand it's protections. For example, a person is protected by the 1st amendment from Liable suits unless they can prove you intended malice with your statement. i.e. You lied about a Doctor prescribing the wrong medication just to hurt his business.

Personally, I think the 1st amendment should apply in all cases. You should not be able to give up the right. Gag orders and NDA's should be illegal.

Re:Not First Amendment (1)

sumdumass (711423) | about 2 months ago | (#47041883)

Of course the first amendment should not apply in all cases. BTW, did you ever find that kiddy porn you were looking for the other day?

Oh and BTW, no one thinks you search for kiddy porn. But if the first amendment applied in every situation, they could.

Re:Not First Amendment (1)

BilI_the_Engineer (3618871) | about 2 months ago | (#47043309)

The first amendment should apply wherever it says it applies; it's part of the highest law of the land.

Oh and BTW, no one thinks you search for kiddy porn. But if the first amendment applied in every situation, they could.

They could anyway, because as far as I know, the US doesn't have much in the way of laws against certain thoughts.

As for the actual speech... if other people believe it without actual evidence, and take actions that harm others based on that speech, whose fault is it really? If we're talking about the actual actions, then it's the fault of the people who decided to take those actions in response to the speech.

Once again, Europe has real freedom (1)

Anonymous Coward | about 2 months ago | (#47041115)

And here in Europe we _are_ protected in our interactions with private companies just as we are with the government.

Oh, we are certainly not perfect, and I am the first to admit that, but we seem to have a better understanding of it means to be truly free than the average US citizen seems to do.

At times, your "freedom" seems closer to Ferengi style capitalism than the socially responsible capitalism we have over here.

Re:Once again, Europe has real freedom (1)

rogoshen1 (2922505) | about 2 months ago | (#47041549)

a European commenting (read as: looking down his nose on the US) regarding socially responsible capitalism is rather funny too. It only took you guys 500 or so years of literally raping the entire god damn world to figure out how to do it 'responsibly.'

Further 'socially responsible' capitalism is only possible due to the power structures and economics of the world, which the previous 500 years created in the first place.

It would be like the de Beers folk using their fortune to get into free trade coffee business, then lecturing Folgers for being less than 'fair trade'. :(

Re:Once again, Europe has real freedom (1)

mrbester (200927) | about 2 months ago | (#47041713)

And it took you lot less than 200 years to get to the raping. I don't call that progress, especially when you can see the responsible attitude just by looking across the pond...

Re:Once again, Europe has real freedom (1)

rogoshen1 (2922505) | about 2 months ago | (#47041737)

standing on the shoulders of giants, as it were.

Re:Not First Amendment (1)

fuzzyfuzzyfungus (1223518) | about 2 months ago | (#47041135)

The First Amendment protects us from prosecution by the government. It doesn't protect us from civil matters with private companies. This Pérez guy should know that.

The distinction is not, in practice, as clear cut as that: Who sets the bounds of what can and cannot be contracted? The state. Who provides the force behind a contract if one party fails to comply? The state. Who decides what constitutes sufficiently informed and consensual 'agreement' for the purposes of contractual validity? The state.

It is true that a civil suit for breach of the no-saying-mean-things clause is not the same as the state passing a no-saying-mean-things law; but if the state permits contract law to drift in the direction of nigh-unavoidable contracts of adhesion with such clauses, they are effectively putting state force behind a very similar restriction, simply 'laundered' through third parties who independently; but predictably, enforce what amounts to the same restriction.

For all practical purposes, permitting and enforcing certain arrangments of contract law has the same effect as directly curtailing First Amendment rights(except that it's more likely to pass higher court scrutiny). It isn't strictly a First Amendment matter (which is why California is considering an additional law, if it were First Amendment any state level action would be pure symbolic handwaving); but it directly affects whether or not one's First Amendment rights will be of practical utility or not.

Re:Not First Amendment (0)

Anonymous Coward | about 2 months ago | (#47041189)

... It doesn't protect us from civil matters with private companies. ...

If by "civil matters" you mean suing someone in court, then in fact it _IS_ the government making laws and rules regarding suits, evidence, courts, etc.; and the government presides over the courts, metes out judgment, punishment, further prosecution, etc.

Re:Not First Amendment (1)

Anubis IV (1279820) | about 2 months ago | (#47041223)

Ehh...yes and no. A bit differently than what you said, the First Amendment protects us from Congress enacting laws that abridge our right to free speech, which is not the same as protecting us from prosecution. Even so, it's understood that our right to free speech is not established by the First Amendment, but rather protected by it. That is, our right to free speech exists independently of the First Amendment. We'd have it regardless of the Bill of Rights, though we may not be able to exercise it in practice, much as people in war-torn countries might not be able to exercise their right to life.

In this case, companies are indeed abridging our right to free speech, but because the First Amendment does not establish that right, referring to it as "our First Amendment free speech rights", as Pérez did, is not quite right. Even so, in colloquial use, pretty much everyone understands what's being said: "someone is trampling on rights that our Bill of Rights protects", even though it doesn't protect them from this form of attack any more than it protects the right to free speech for people who have signed NDAs.

Re:Not First Amendment (1)

Xicor (2738029) | about 2 months ago | (#47041593)

yes, but civil matters are totally ignorable if not for the government support. if the government says 'fuck civil matters', there wont be anyone to punish those who don't pay their dues.

This is about government initiating force (1)

Anonymous Coward | about 2 months ago | (#47041691)

It doesn't protect us from civil matters with private companies.

That's true, provided that no court enforce the civil matters.

If I fail to provide you, my customer, with a soapbox, that's not a First Amendment issue. If I provide a soapbox (owned by me) and then limit what you're allowed to say while standing on my soapbox, that's also not a First Amendment issue. If someone else provides a soapbox and people use it to say things I don't like, I can even make a deal with the soapbox's owner, to have them limit peoples' speech on my behalf. Not a First Amendment issue.

So far, so good.

But if someone else provides a soapbox and people use it to say things I don't like, and then I go crying to the government demanding that government force be used against the people saying things that I dislike, and then the government does what I want, that is a First Amendment issue. To make it not be a First Amendment issue, the government has to stay out of it. They should laugh in my face, when I demand they use the peoples' power and the taxpayers money, to prevent speech-I-don't-like.

But that's not happening. When the crybabys go to the government, the government is telling them, "Yes, I will enforce your anti-speech contract." That's a violation of the constitution.

That's government deciding to use force against someone, based on the content of their speech.

That's political power taking sides in a previously-private matter. It's not merely civil anymore. Somebody reached for their gun.

If there's any chance that a judge can tell you "don't do that," and his bailiff might end up pointing a gun in at your face, then rights are at stake. That doesn't mean you can't use contracts, but once you use a contract, you are pulling the government into the matter, so you better not use them to do things that they are explicitly prohibited from doing.

If you want to keep the government out of it (with all the prohibitons against government doing certain things), then keep the government out of it!

Re:Not First Amendment (0)

Anonymous Coward | about 2 months ago | (#47041739)

The restriction against impairment of freedom of speech in law should override the allowance in the law to contract. Civil disputes are handled within the law.

But... we cant do that because we cant play the ways we like then.

Re:Not First Amendment (2)

duke_cheetah2003 (862933) | about 2 months ago | (#47041843)

The First Amendment protects us from prosecution by the government. It doesn't protect us from civil matters with private companies. This Pérez guy should know that.

Except our government is pretty much run and owned by private companies now. So we should treat private companies much like we do our government. They're practically one and the same at this point.

Re:Not First Amendment (0)

Anonymous Coward | about 2 months ago | (#47042005)

Clearly the 1st amendment needs to be updated to reflect the current reality of our world.

Re:Not First Amendment (0)

Anonymous Coward | about 2 months ago | (#47042495)

First Admendment rights are not limited to protecting you from prosecution by the government. The Perez guy introduced a bill that make those types of contracts non-binding.

This is what freedom means in the US (2)

i kan reed (749298) | about 2 months ago | (#47040801)

You're free to do what you want, and the government won't interfere...

Except for the literally tens of thousands of inane and pointless restrictions placed upon you by the one sided contracts that you must sign to take part in modern life.

Want a job so you can pay your expenses?
Better sign over your right to intellectual properties you create.
Want to get to that job?
Better sign over numerous detailed and unnecessary rights as part of your car loan.
Want to have shelter?
Here comes Mr. Landlord or Mrs. Deed Covenant.
Want to use basic tools to communicate?
Sure, we'll add limitations to your rights to random websites too.

Re:This is what freedom means in the US (0)

Anonymous Coward | about 2 months ago | (#47040927)

It's almost as if people want legal recourse if you trash their stuff, refuse to pay, or abuse their services. Strange.

Re:This is what freedom means in the US (1)

i kan reed (749298) | about 2 months ago | (#47041103)

Yeah, but that's not most of what makes up those contracts.

You get one provision for what they'll provide:
1. The service you're paying money for

They get hundreds of minute and niggling details that you can't actually negotiate, since they have the leverage and the lawyers.
AND they get the money.

Sure, there's a "you must have insurance on this thing we have a lien on" clause, which is reasonable, but there's also always a "all disputes are settled by our paid shills" clause.

Re:This is what freedom means in the US (0)

Anonymous Coward | about 2 months ago | (#47042097)

And on top of that, most of them have the provision that they are allowed to change the contract however they like, any time they like, without notifying you, but you are liable if you don't follow every letter of the contract, even if its parts that didn't exist when you agreed and never knew they existed. Hell, some of them, like cable companies, you don't even get the service you're paying for (ie, "Up to 10 mbit" is meaningless because even 1 bit/sec still counts under "up to 10mbit").

Re:This is what freedom means in the US (1)

Anonymous Coward | about 2 months ago | (#47040965)

you are aware that all of those deal with when you don't own but are borrowing from someone else?

Basically what you're saying is, if you don't want to lose rights, own, don't rent or borrow.

Re:This is what freedom means in the US (1)

i kan reed (749298) | about 2 months ago | (#47041123)

Also:
Don't get a job.
Don't buy a cell phone and pay for service.
Don't use any website that requires registration
Don't use any software

Wait... this is starting to sound impossible.

Also: you think buying gets you out of restrictive clauses? Have you looked at your damn deed?

Re:This is what freedom means in the US (0)

Anonymous Coward | about 2 months ago | (#47041263)

Also:
Don't get a job.
Don't buy a cell phone and pay for service.
Don't use any website that requires registration
Don't use any software

Wait... this is starting to sound impossible.

Also: you think buying gets you out of restrictive clauses? Have you looked at your damn deed?

So work for yourself, live in the woods like a hermit and sell firewood instead of building websites. It'll be a different lifestyle for sure, but it is possible. I don't see why people have the assumption that one should be able to both be a completely isolated island in terms of restrictions placed upon them by society and also be entitled to reap the significant benefits of living and working for large governments and corporations in that society.

Re:This is what freedom means in the US (1)

i kan reed (749298) | about 2 months ago | (#47041297)

Okay, now we're getting somewhere.

Societies aren't built around what's theoretically possible, with enough freely gained land from magical land fairies. They're built on how things actually work.

Re:This is what freedom means in the US (0)

Anonymous Coward | about 2 months ago | (#47041871)

You mean like the king of spain?

Re:This is what freedom means in the US (0)

Anonymous Coward | about 2 months ago | (#47041031)

While I understand some of your sarcasm, this is the basis of contract law. If you want someone to do something for you (give you a car loan), they have the right to ask you do things (or not do things) that could result in them taking a loss in doing so. So yes, if you want a car loan, you have to make payments, keep up-to-date insurance, etc. However, I think for many of the "Forced Arbitration" clauses, you're spot on.

"Want a job so you can pay your expenses?
Better sign over your right to intellectual properties you create." I'm right behind you on this one. Google "Evan Brown".

Re:This is what freedom means in the US (3, Insightful)

lgw (121541) | about 2 months ago | (#47041323)

Sure, if you want other people to do things for you, they might have some rules before they'll do those things. That's not a problem in and of itself, and isn't at all the point of this proposed law.

What you can't do is secretly add terms to a contract. Most states have rules about "boiler-plate contracts". If you stick an unusual requirement into a 30-page apartment lease, which otherwise looks like a customary lease, the burden of proof is on the landlord (the writer of the contract) to demonstrate that the renter knew about that clause. Because of that, you'll sometimes see leases where you have to initial a specific paragraph here and there to show you really read it before signing the lease, where those paragraphs weren't industry-standard.

This is that same idea for EULAs. You can't hide stuff in them - there's no "meeting of the minds" if you do - so wonky "you can't criticize us" rules should need the company to call special attention to them. It would be great to see state laws clarifying this sort of thing.

Re:This is what freedom means in the US (0)

Anonymous Coward | about 2 months ago | (#47041649)

People should be concerned with what they are doing, not how well and how often they can control what other people are doing.

Re:This is what freedom means in the US (1)

Ralph Wiggam (22354) | about 2 months ago | (#47041343)

Want a job so you can pay your expenses?
Better sign over your right to intellectual properties you create.

You seriously have a problem with that? You think an employer should pay the overhead of your salary, your health care, your office space, and your computer, and then not get the resulting work created?

Re:This is what freedom means in the US (2)

fnj (64210) | about 2 months ago | (#47042787)

On the company's time? No.
Using the company's equipment after hours? Not if the company wants to be small minded.
On your own goddam time after working hours and using your own goddam equipment? That belongs to the individual, and not a goddam chance in hell any of it belongs to the company! (subject to details such as making improper use of company confidential information and the like)

Why do you even need a law like this? (0)

Anonymous Coward | about 2 months ago | (#47040815)

You'd think that out of all the people inserting mandatory arbitration and anti-disparagement clauses in their terms of use, one of them would stop and say, "Wait a minute, you can't waive your constitutional rights!"

As it turns out a lot of states actually allow people to do things like waive their right to a jury trial, for instance. Always read the fine print.

Re:Why do you even need a law like this? (1)

NoNonAlphaCharsHere (2201864) | about 2 months ago | (#47040973)

And so, in many many communities, you can either have DSL or you can submit to binding arbitration. Or you can agree to binding arbitration, or you can have last-mile phone service. You decide.

How about make the agreements non-binding (2)

MobyDisk (75490) | about 2 months ago | (#47040913)

A better idea is to legislate that these licenses are non-binding.

Re:How about - RTFA (0)

Anonymous Coward | about 2 months ago | (#47042323)

The proposed bill makes the contract non-binding

According to the language of AB 2365, introduced on February 21, 2014 by California Assembly Member John A. Pérez (D-Los Angeles), a contract would be deemed unlawful “if it includes a provision requiring the consumer to waive his or her right to make any statement regarding the consumer’s experience with the business, or to threaten or seek to enforce such a provision unless the waiver of this right was knowing, voluntary and intelligent.”

Re:How about - RTFA (1)

MobyDisk (75490) | about 2 months ago | (#47043017)

By "these licenses" I meant EULAs in general, not just ones with this particular provision.

What is plain language? (3, Insightful)

kruach aum (1934852) | about 2 months ago | (#47040915)

Not that I'm defending people who write contracts here, but the notion of plain language is not unambiguous. What counts as plain is dependent upon the reader's level of fluency, and because not all native speakers of a language have the same level of fluency the notion of 'plain' differs from person to person. The reason clauses of a contract or often not plain is because of the use of specialist language. However, that specialist language has a specific function: reducing ambiguity. In order to make a contract more plain, more commonly understood language needs to be used, but more commonly understood language is necessarily more ambiguous, and thus open for interpretation. If there's one thing no one wants it's that their rights critically depend upon the interpretative powers of another person. This is why the words "In a 5-4 decision, the supreme court..." inspire such dread.

Hey, slashdot readers - (1)

jc42 (318812) | about 2 months ago | (#47040923)

By reading this post, you agree to refrain from downmodding this message or any other message that I may post here in the future.

(Lessee ... where's the font-size control here ...)

Federal law trumps state law - forced arbitration (1)

schwit1 (797399) | about 2 months ago | (#47040975)

Wait until the online EULAs require mandatory arbitration before you can post something derogatory.

Fight fire with fire (3, Interesting)

Anonymous Coward | about 2 months ago | (#47041007)

You know how many online ordering sites have a comment box? How about entering, "By accepting my payment, you agree to make your EULA null and void."

Same as nondisclosure? (0)

Anonymous Coward | about 2 months ago | (#47041067)

This seems a lot like nondisclosure agreements, stuff like "we'll give you $X to settle this / as a hiring bonus / as severance, on the condition that you don't tell anybody". Those seem entirely valid to me, and most certainly don't violate 1st amendment rights whatsoever.

Re:Same as nondisclosure? (0)

Anonymous Coward | about 2 months ago | (#47041179)

There's a big difference - the consideration in employment NDA cases is usually reasonably conscionable. Attempting to trample over the substantive rights of a customer in return for a company to complete specific performance, on a sales contract they would be happy to conclude with anyone and are publicly advertising, is completely one-sided.

different in practice (2)

mbkennel (97636) | about 2 months ago | (#47041209)


Because the person is getting a significant extra benefit---a substantial sum of money---as a primary, and clearly negotiated result of a contract about that very issue. I get X for Y.

It's completely different, for instance, if you take a taxi to the airport, and then find a submarine clause that your "taxi-use license" required you to pay the driver's fuel cost for the next year, and forbade you from telling anybody that the taxi company did this.

The usual is "get ride for money" or "get meal for money", not "get meal and gag order for money".

Re:Same as nondisclosure? (1)

duke_cheetah2003 (862933) | about 2 months ago | (#47041867)

NDA's for the most part tend to not be hidden in a pile of legalese. Usually when two parties enter into a NDA contract, they're both perfectly aware of what they're doing. This is different, this is trying to sneak a NDA onto everyone who has been indoctrinated to click 'I agree' on every fricking website they touch.

The real issue is with EULAs in general. (3, Interesting)

TsuruchiBrian (2731979) | about 2 months ago | (#47041379)

Rather than allowing EULAs written by companies, we should just have standard EULAs, for common types of products, and declare all other EULAs nonbinding.

I understand the need to have contracts that are nuanced, but for the kinds of contracts that you "agree" to simply by opening a box, should be standardized and devoid of any nefarious language.

I should not be able to send a letter to someone that says "By opening the envelope this letter arrived in, you agree to write me a check for $10,000, and failure to do so within 30 days will result in litigation" (and have it be enforceable). For the same reason, companies should not be able to have custom EULAs that are implicitly agreed to by opening a box or envelope.

Sure we can put the responsibility on the consumer to read every EULA for everything he/she buys from an OS to a bluetooth headset, but this is just a waste of everyone's time. We already invalidate stupid EULAs for being stupid. Lets just go one step further and make an implied boilerplate EULA that everyone is aware of and doesn't include anything shady.

Re:The real issue is with EULAs in general. (1)

MobyDisk (75490) | about 2 months ago | (#47041587)

Agreed: but lawyers don't like it. Let me explain:

First, let me restart this another way:
What you call "standard EULAs" are really just "laws" and there is lots of stuff like that today. This is why, for example, the Fair Credit and Reporting Act states certain things in it. That way, when you sign a credit card slip, there is some standardization in what the cardholder agreement can and cannot say. It is why when you buy a house, most of the contracts are about the same. Without such laws in place, these contracts would be even longer and they could vary wildly.

So here is what happened:
I proposed your idea to a few lawyer friends of mine a while back: codify certain standard things that are common sense and are part of every EULA. At first the response was dead silence. As I kept trying to clarify, the response was basically "but having a 50 page EULA for every thing is more flexible! Why would you want the law to do this for you?" I interpreted this to mean "we are lawyers, we like things to be complicated!" and "That's how we make money!!!" I now avoid discussing law with friends who are lawyers. Else they would not remain friends.

Re:The real issue is with EULAs in general. (1)

TsuruchiBrian (2731979) | about 2 months ago | (#47041993)

I don't know if this is a feature unique to lawyers, but as a software engineer, I can honestly say that as a profession, we don't attempt to make software more complicated for the purpose of keeping ourselves employed. Even though it is true that software gets more complex over time, it is actually for the purpose of making more work for the computers, and less work for engineers. Software engineers are more productive now than at any point in the past. The amount of work that modern tools allow 1 engineer can do is staggering today, compared with decades past. The thing that keeps us employed is that more people want more software now that it is more cost effective. We keep trying to engineer our way out of a job, but we just keep getting more work.

Re:The real issue is with EULAs in general. (1)

MobyDisk (75490) | about 2 months ago | (#47043045)

Many times I've thought that if legislators thought about laws the way software engineers thought about programs, the law could be simpler. Ex: Tax tables wouldn't be tables - they would state the formula. Redundant laws would be refactored. I can think of a few cases where there have been propositions on the ballot that I rejected because they shouldn't be new laws, but refactoring of old laws. My friends don't seem to get it. Some quick examples:

  • The Maryland constitution now lists the particular places that casinos may exist. This is like putting the implementation in the requirements. It should state somehting like "casinos must be geographically separated by at least X miles" or define the spread by population density or something like that.
  • The "Dream act" states that immigrants who graduated high-school may qualify for in-state college tuition, and some other various benefits, but it does not grant them residency. The law would be simpler if it just granted them residency.

This is why the law is called "legal code."

Re:The real issue is with EULAs in general. (0)

Anonymous Coward | about 2 months ago | (#47041667)

Yeah, I think that we need to have a set pool of what I call 'many to one' contracts (contracts where a companies lawyers get years to decide the contents, and each customer is presented with, and has to sign it in order to do a simple task.

This way, organized consumer groups could actually have a say in what goes into those contracts as well.

Maybe... (0)

Anonymous Coward | about 2 months ago | (#47042515)

We should actually start reading the eulas before we accept them. And then post the gory details to places like slashdot so that millions (well, okay, dozens 8^) of other people can boycott these products.

Then.. what's the point? (1)

Rinikusu (28164) | about 2 months ago | (#47042831)

If someone can't ask me what I think of Product/Service without me worrying about some asshole suing me to death over my experiences/opinions, then fuck it, let's stop pretending we live in a free country. Yes, speech should have consequences, but there's a huge difference between libel/slander and expressing a mother fucking opinion.

My Damned Soup (1)

Jim Sadler (3430529) | about 2 months ago | (#47043141)

I told the clerk at the grocery store yesterday that I actually found a tiny piece of clam in my Campbell's Clam Chowder. I asked if i should call Homeland Security. It was clear to me and her as well that finding a bit of a clam in their soup was so unusual that perhaps Homeland Security should investigate and find out just why somehow they accidentally added a tiny piece of clam to their Clam Chowder. Now I am in legal jeopardy for reporting that which I really did say in public? Does that make me more liable than when I say that Chrysler cars and trucks fall art way too easily? How does that compare to saying that the US House of Representatives has a lazy, stupid and corrupt majority. Does that get me a citation for contempt of congress? Am i being unfair or just warning my friends that some bad products are on the market? And don't get me started about GM allowing lethally bad parts to remain on the road in their cars. Can i be sued for using the word murder?
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