US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

Original Article ↗ Hacker News Discussion ↗

Nature of the ruling

  • Memorandum decision by the Ninth Circuit; explicitly “not precedential.”
  • Narrow issue: whether users were on “inquiry notice” of updated Terms of Service (mainly a new arbitration clause) sent by email.
  • Court applies a three‑factor test; finds 2 factors favor notice, 1 against, so assent via continued use is valid in this case.
  • Judges stress this doesn’t mean mass email always establishes notice; it’s “fact‑intensive.”

Email notice, spam, and proof of delivery

  • Major disagreement over treating “email sent” as sufficient notice:
    • Critics say the court largely ignores that one email landed in spam and another user says they never saw it.
    • Others respond that spam classification is client‑side, not a delivery failure; users chose their provider and settings.
  • Concern that companies could game spam filters (nonstandard headers, etc.) to ensure emails vanish, then blame users.
  • Comparisons to registered mail and process‑service rules: lack of any reliable delivery or read confirmation makes email a weak channel for legally significant changes.

Consent via continued use

  • Court accepts “continued use after notice date = assent,” even when users never clicked “I agree.”
  • Many see this as coercive: users often can’t keep using under old terms or even access accounts/vehicles/TVs without accepting new ones.
  • Edge cases noted where users only open an app to avoid tracking, cancel service, or check settings, yet that is treated as consent.

Fairness, power imbalance, and unconscionability

  • Widespread view that modern TOS are unread, unmanageable, and effectively non‑negotiable.
  • Power asymmetry: large firms with lawyers vs. scattered consumers; forced arbitration singled out as especially abusive.
  • Some argue US contract law over‑prioritizes clearing dockets and corporate convenience at the expense of “meeting of the minds.”
  • Others say the court is simply following existing law; if the law is bad, legislatures must fix it (e.g., bills to curb forced arbitration).

Comparisons and alternatives

  • References to EU‑style consumer protections and civil‑law concepts (unfair terms, minimum standards, explicit opt‑in).
  • Some companies reportedly version terms per product and require explicit acceptance for new offerings, seen as more reasonable.

User reactions and counter‑moves

  • Ideas floated: emailing companies user‑authored TOS and claiming “continued service implies consent” (seen as legally dubious but rhetorically powerful).
  • Broader response: reduce reliance on cloud services, cancel subscriptions, use self‑hosted media, or avoid products tied to aggressive TOS updates.