The FTC needs to make a “click to register, mail to modify your preferences” illegal similar to how “click to subscribe, call to cancel” is now outlawed https://news.ycombinator.com/item?id=29250063
P.S.: At least can venmo be compelled to act or confirm our choice if we are forced to mail in their form? Can they claim they never received it, that it was printed incorrectly (since the form isn’t a PDF and can be easily rendered differently by various browsers) or missing some specific info?
They could claim they never received it; if you do a lot of business on Venmo, it might be worth investing a few bucks in sending via certified mail.
I don't think they'd have a leg to stand on in claiming that your version of the form was incorrectly rendered, as long as you provided all the requested information.
If you failed to include every piece of information the form asks for, perhaps they'd have an argument to reject your opt-out; the contract does specifically say that every piece of info must be included and it must be signed.
No click to confirm, Venmo has to mail YOU to ask for binding arbitration by certified mail, asking YOU with a SASE to confirm by certified mail back. Then it would be consent.
Suggesting yet another rule to eliminate some undesired behavior makes me think you are running into a Gödel's incompleteness but in law. We should instead cut the Gordian Knot and try to resolve these issues in a different manner.
This strikes me as the preamble to some "it's like law but oN thE BloCkChAiN" pitch, which ignores that law is designed to be interpreted by human beings, and by definition does not operate like code. Ask any lawyer preparing for a trial, they'll tell you that they have an idea how strong their case is but you really don't have any idea how it will turn out until the arguments are made. This is by design.
Replacing the system wholesale is... an incredibly naïve solution, to say the least.
> "Western society has chosen for itself the organization best suited to its purposes and one I might call legalistic. The limits of human rights and rightness are determined by a system of laws; such limits are very broad. People in the West have acquired considerable skill in using, interpreting, and manipulating law (though laws tend to be too complicated for an average person to understand without the help of an expert). Every conflict is solved according to the letter of the law and this is considered to be the ultimate solution. If one is right from a legal point of view, nothing more is required, nobody may mention that one could still not be entirely right, and urge self-restraint or a renunciation of these rights, call for sacrifice and selfless risk: This would simply sound absurd. Voluntary self-restraint is almost unheard of: Everybody strives toward further expansion to the extreme limit of the legal frames"
I would emphasize that last sentence.
I didnt even say that Solzhenitsyn advocates for my view I said he hints at these issues in this essay.
I don't know how you can possibly interpret that as a call to remove law as unfixable.
That just says "neckbeards constantly test limits, Westerners are lawsuit happy because it lets them emotionally avoid compromise, and sometimes people should choose not to take everything to court when they could just be nice."
I have the strong impression that you have never read this book and are trying to argue from a search engine
Large parts of this book rail against what you're saying as villainy, and that it is oppressors who argue for the removal of the law in the faked hope of finding something better
This is not a book this is a speech (I dont even think this is excerpt from a book so I am not sure where this book idea is coming from) And yes he even in the next paragraph says that a lawless society is horrible.
"I have spent all my life under a Communist regime and I will tell you that a society without any objective legal scale is a terrible one indeed."
I dont think he nor I think of it as "neckbeards constantly testing limits" but as the whole of society; specifically the area that matters here is corporations.
I am not into Crypto blah blah solutions. I am simply arguing that yet another random specific law doesnt seem to fix the issue.
Using legal mechanisms to solve these kind of issues is ineffective, inefficient, and inegalitarian.
Indeed, you didn't make that claim. Fascinating to see the same user you replied to do the same thing in your subthread as he did in mine earlier on in the day. I also see you are no less disappointed with your conversation with said user than I was with mine. How very coincidental...
No "other manner" is here described, or has ever been described by humanity
Making abusive behavior illegal isn't about numerical representation
To cut the Gordian knot means to ignore the problem as irrelevant by discarding previous requirements. You seem to be suggesting that we should not require large corporations to get our consent before binding us to things
I find that the heavy use of imagery can make falling backwards sound like progress
But no, we shouldn't throw out the law just because a new scam emerged
Verizon is still violating “click to subscribe, call to cancel” routinely with their 5G Home services. You can get the modem delivered to your door with a couple clicks but you have to chat with support to get the line cancelled. You can’t even take the device into a physical store to return.
Can someone explain what this arbiting is about? What the hell am I agreeing to if I don't mail this form?
Also if I do mail this form why do they want to know where I live? I do want to opt out of shitty terms if that be the case but I don't wish to tell them and any potential stalkers where I live
Same with services (commonly internet and phone service) that allows you to easily create an account online, but requires calling a representative to close the account.
>I guess similar to the one that got a math degree just to write dark patterns.
Or the programmer who finishes a top CS course only to go directly into undermining the democratic process by working for the likes of Cambridge Analytica, or the programmer giving teenagers depression through aggressive adtech. We're really in no position to be criticising lawyers for sending their industry's top minds to do morally questionable things!
Since making money seems to be a thing of the devil nowadays, Lawyers are much worse than developers, just because they usually make a LOT more money.
Also, developers very often confess their misbehaviors on social media and donate their time to OSS and money to charity or the social warrior politician du jour, while lawyers are infidels. This basically clears the bad record for developers, so they can continue working for Facebook et. al. with no remorse.
This is perfectly reasonable, logical way of thinking in the year 1022. I mean, 2022.
If you think of downvoting, be careful, as you may end up being sued for intolerance.
I don’t think that’s how they’d view it at all. In their eyes it’s all these “spurious” lawsuits they’re protecting their client from within legal means. Arbitration is expedient and much cheaper.
It's mainly about trying to close out the possibility of class-action lawsuits. They figure individual users won't sue for small claims. One on one you can't compete with their legal departments. Some companies have actually backed off on this strategy when someone figured out how to generate massive numbers of arbitration requests.
You just said "people doing X, whatever that means" which strongly suggests that (at the time of writing) you either didn't know or care what X (in this case "dark patterns") means.
And which is about as funny as this other snippet you just wrote:
"Math plays no role in them beyond being able to understand an A/B test (i.e. to be able to understand math)"
Anyway the commenter's point wasn't that writing software with dark patterns requires super-heavy math (or even a math degree specifically). But how ironic it is that people with (sometimes highly prestigious) STEM degrees -- and who are in fact objectively quite smart otherwise, sometimes almost intimidatingly so -- end up at allegedly prestigious companies that we don't need to name doing ... basically mindless and socially harmful work like this.
I suspect we wouldn't be so adverse to binding arbitration if it were set up in a truly fair way: right of disclosure to both parties, ability to have class action, ability to assess records of similar cases with the arbitrator to assess their ability to be neutral, etc. But these start to raise costs and make arb similar to the formal court system, which it's designed to work around. Is there a benefit to one side or the other to have this lack of rigor and consistency?
All the rules seem different for arb: no consistent rules of evidence, tons of decisions just left up to each individual arbitrator. One could say, I guess, that this is a marketplace freedom, like shopping around for the patent court friendly to original inventors, etc. In this marketplace, you can find an arb closest to how you hope your case will go, who will do things the way you want to, perhaps. But it's a forced marketplace, not one that I get to opt into or out of for so many interactions these days.
Forced arb was supposed to make things better. Do we have any evidence that it does, and for whom?
The purpose of the Federal Arbitration Act was not to make things better for end customers like you and I.
The law was passed because judges at the time (in 1926, for what it's worth) were reluctant to enforce decisions reached through arbitration in courts because judges saw arbitration as either a reduction of judicial authority or less fair and open than a judicial proceeding. Both views were held at the time, take your pick for which one you prefer.
Arbitration was originally supposed to be about two parties of roughly equal negotiation and information-acquisition power being able to work out arguments between themselves. Inherently, this meant business-to-business complaints with each other.
You and I are not on equal footing and with the overwhelming majority of entities with which we contract, nor can we easily negotiate the terms of those contracts, both of which were features of the entities who originally wanted to use binding arbitration. But over the years, businesses that provide services to individual customers figured out that getting sued was expensive and decades of "ambulance-chasing class action lawyers are unfair!" turned the tide against using courts as neutral forums. Supreme Court decisions relating to the arbitration act over the past thirty years or so have effectively slammed the door on using courts and some members of Congress don't seem motivated to change this.
(Note that I am biased against binding arbitration agreements. I think them unconscionable, and I laugh endlessly when "well-intentioned" companies that do a Show HN here have them in their terms.)
> Forced arb was supposed to make things better. Do we have any evidence that it does, and for whom?
The primary goal is for businesses to escape accountability under the legal system, and I'm sure it does or they would stop pushing this nonsensical crap. And like always, if only individuals could similarly limit their liability in such ways, we would need a lot less insurance!
The only thing that would redeem arbitration is getting rid of mandatory arbitration. There is no problem with the possibility of being able to assent to binding arbitration once you've got a dispute, if both parties think it's beneficial. The problem is companies forcing these terms onto us ahead of time via the fallacy of contract, allowing to arbitration industry to function with perverse incentives.
Was it, though? It was supposed to make things better for the party that is forcing the arb, and it does. Everything that I force anyone but my kids to do is going to be for my own advantage. If is weren't better for them, they'd probably stop doing it, rather than doing it more and lobbying against restrictions on it.
1. In the Venmo app, go to the You tab by selecting the single person icon
2. Tap the Settings gear in the top right
3. Select “Account” under “Preferences”
4. Tap “Close Venmo Account”
Zelle is a turd of a service, too. If your bank doesn't have it integrated, then the only way to accept a payment sent to you through Zelle is to sign up through an app. No website signups allowed.
Importantly, banks and deposit accounts fall under financial regulatory requirements, FDIC, OCC, and whatnot. You have more recourse with a deposit account vs a PaypalVenmo account, full stop.
I was curious what the legal status of mandatory arbitration clauses was in Canada and found this gem[1]:
> The clause required Uber drivers to pay a large up-front administrative and legal filing fee of US$14,500, and to travel to the Netherlands to arbitrate their claims.
It's amazing Uber thought this would hold up to judicial scrutiny. It's basically a "you can't do anything if we screw you over" clause for most of the population. Good thing the Canadian courts agreed:
> The majority of the Supreme Court found that the arbitration clause was invalid under the doctrine of unconscionability as there was: (a) proof of unequal bargaining power between the parties; and (b) proof of an improvident bargain (i.e., gross unfairness).
This is incredibly unethical and makes me disgusted. Uber engineers, please complain about this and ask for a review of the decisions that led to this policy, or you have no moral ground to stand on.
Or, if there’s an explanation for this that I don’t understand, please explain.
IME, part of what Uber filters for (via "cultural fit") is engineers who won't make a fuss about such things. There is too much money at stake! [to let an engineer have that much power]
That's great and all but how does a unwashed mass like me come up with enough money and time to fight such a thing all the way to the Supreme Court (of any Country)
Didn't quite a few tech companies stop using mandatory arbitration because some people basically flash mobbed them into paying millions in arbitration fees?
I cannot find it somehow, maybe I am misremembering.
"provides that you will only be permitted to pursue claims against PayPal on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding;
provides that you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis"
I'm wondering if this language is to try to prevent that tactic?
This needs to become a recurrent pattern. Once companies see serious red ink as the probable outcome, maybe we will see an end to this kind of bullshit.
> No one should be forced to do business with you on your terms
But they can be forced to do business under particular terms, or can be forced to do business with everyone under the same terms. If they don't want to, they can walk away from the business, but society has to have standards.
I've had an idea for a while, that I'll probably never get around to. The idea is to throw some ML or other appropriate analysis at privacy policies and eulas to monitor for changes and possibly offer alerts, explanations and practical advice to users.
"For only $12 million USD, you can own the infamous 'mounting it locally with curlftpfs, and then using SVN or CVS on the mounted filesystem' Dropbox comment."
"NFT's!? You could use a MySQL database, who cares where the users are and what they like to do and are willing to pay for, thats one thing I'll never get about crypto/"web3" proponents! Its absurd that they would build for an audience and make revenue while using a system with tradeoffs that is easier to develop for." /s
Sarcasm but I'm sure GPT-3 or similar could be trained from algolia search results and output that.
The Federal Arbitration Act explicitly permits. There are a variety of situations where arbitration entirely makes sense: companies may not want to deal with court resolution of contract disputes for efficiency reasons (the courts are slow and expensive) or may want to have a defined venue with rules of their choice (I've been told that, for international deals, foreign firms are _very_ wary of US discovery rules, and agreeing to arbitration instead can let you avoid them and smooth signing the deal, which the parties probably care more about than potential disputes in the future). It's a very useful and reasonable option for contracts _between peers_
Unfortunately, the law treats negotiations between actual peers and large companies "negotiating" with individual customers the same way--it'd be hard to delineate distinct classes of actors that can and cannot enter into arbitration agreements (or contracts in general).
Requiring an explicit opt-in versus "by continuing to use this service with saying otherwise, you consent to this change" for certain classes of contractual changes is probably doable (IANAL this could possibly raise some issue I'm not thinking of), but in practice there's no political will to make that change. Automatic consent is legal currently and will likely remain legal in the future.
> Unfortunately, the law treats negotiations between actual peers and large companies "negotiating" with individual customers the same way--it'd be hard to delineate distinct classes of actors that can and cannot enter into arbitration agreements (or contracts in general).
> (b) ‘consumer’ means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession;
and that directive prohibits binding arbitration in the annex:
> (q) excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.
(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract [1];
And the annex list is not exclusive. In general any term that is not in good faith is considered non binding for consumer contracts if there was not individually negotiated.
[1] There are nuances, for example such a term might be valid as long as the customer has the option of terminating the contract.
> How is it possible for this to happen automatically without agreeing to it?!
When you initially agreed to the TOS, there was a clause that said Venmo/PayPal can modify the terms whenever they want:
"We may revise this user agreement and any of the policies listed above from time to time. The revised version will be effective at the time we post it, unless otherwise noted. If our changes reduce your rights or increase your responsibilities we will provide notice to you of at least 21 days. We reserve the right to amend this agreement at any time without notice, subject to applicable law. By continuing to use our services after any changes to this user agreement become effective, you agree to abide and be bound by those changes. If you do not agree with any changes to this user agreement, you may close your account."
> When you initially agreed to the TOS, there was a clause that said Venmo/PayPal can modify the terms whenever they want
That is the thing which really should be illegal. It doesn't even make sense. You agree to terms that we can be modified any time they want? What are you even agreeing to with a contract like that?
It's simple. It's like Sharia law. People agree to not have the law apply to situations before they get into them as a precondition for working, having a place to sleep, buying things, having medical care, or entering a building, etc., and the law looks the other way while a judge for hire decides what's right.
I believe the poster was implying that contracts should not be superior to law, should not be able to remove a person's legal protections. Enforcing contracts no matter what (or in other words, placing no limits on which contracts it will enforce) should not be a legal system's goal.
They are never superior to law. If there is a law that says "Thou shalt not eat oranges." then no contract can stipulate eating oranges by either party, and there is no legal redress to it other than changing the law, contract law never supersedes "the law of the land"
That's a very reductive view. Yes, strictly speaking, the law is always superior. But if that law allows things such as signing away your rights, then that superiority is meaningless.
Has this been tested in court? It would seem the user was not given time for due consideration. Would a court agree or disagree that there was a meeting of minds?
Unobvious as long as someone doesn’t try it in court. I seem to remember that Zappos lost a case about unilateral modification once but I don’t know the exact content.
I can't for the life of me understand how you can sign away your rights like that in America. Binding arbitration? Who picks the arbiter, who pays them, and how do you appeal to a neutral third party? It's in an arbiter's best interests to side with their client, otherwise they get dropped. This is an obvious conflict of interest, but courts allow it partly because they're overburdened.
We in America really need to do something about our courts. Justice through the legal system is already out of reach for most Americans, even if they have the money and an open and closed case, it's likely they don't have the time to persue something which may take years (delaying tactics are a real thing).
Seems like an opportunity for businesses like Do Not Pay. I'd pay $2 for this, and it can't cost that much to print and mail paper. I'd even pay a recurring fee to handle these sorts of dark patterns systematically.
I live in the UK and I've never come across any company that does shitty stuff like this. Is there some EU law we've still got that explicitly prevents this?
Yes, there's an EU directive which broadly considers arbitration clauses unfair in consumer contracts, and declares that unfair clauses in consumer contracts must be considered nonbinding in law - https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELE...
(The basic relevant articles in the directive are Article 3, Article 6 and the Annex here.)
Indeed. At least for now, this is the law in the UK as well... EU directives have to be implemented into national law by member states, and this one is old enough that the UK actually implemented it.
Now that the UK left the EU, and given the "conservative" (i.e. neo-con, market-liberal) government, I wonder if the UK laws concerning this kind of consumer protection will get watered down (or already have been).
> Under EU law, standard contract terms must not:
> * be contrary to the requirement of good faith;
> * disadvantage consumers (in terms of rights & obligations), in relation to sellers/suppliers.
There might be a more specialized law/regulation though. The EU is pretty bad with their public relations stuff so it's hard to tell.
They're changing the way that you can handle issues with them. Normally you have the right to sue an organization for wrong doing. (I.e. they stole money from you, they literally reached into your bank account and drained it, etc.. you know civil stuff)
However, with arbitration.. the corporation can remove your right to do so and force this disagreement to be settled through an organization that they pay. It limits your rights, it limits the amount of money you get get back from the situation you encountered, and they do not have to abide by any normal laws sorrounding civil litigation.
But hey, you typically don't pay as much as you would of a lawyer upfront.
This isn't an action that people are consenting to.. it's something they're being forced into.. unless they follow a difficult procedure to do avoid it.
> be settled through an organization that they pay.
This is a part I've never been quite clear on, do you know what governs venue selection for an arbitration? e.g. why their arbitrator and not my arbitrator?
> The AAA does not itself arbitrate disputes, but provides administrative support to arbitrations before a single arbitrator or a panel of three arbitrators. Under its rules, the AAA may appoint an arbitrator in some circumstances, for example, where the parties cannot agree on an arbitrator or a party fails to exercise its right to appoint an arbitrator.
I thought arbitration doesn't remove your right to sue unless you agree to it... and an opt-out form from a by-default user terms notification isn't the same thing as agreeing to arbitration.
It's like Venmo saying: we have a right to take everything you own unless you opt out of this agreement. Nnno you don't, that's literal stealing, like trying to rob people of their right to sue.
Unless you reasonably see yourself starting a lawsuit (tens to hundreds of thousands of dollars) or paying to certify a class (hundreds of thousands to millions of dollars), arbitration is almost always better for the consumer.
It’s cheaper, which renders benign the big-company dickhead move of forcing millions of dollars of legal preparation. It’s quieter, which renders benign the big-company dickhead move of airing embarrassing stuff in public filings. It’s faster; if you’re owed money you’ll get it quicker.
There is concern arbitration may be more biased than the courts, but the evidence for anything systematic is scant, and the extra eyes don’t hurt. (There is even, now, precedent for collective antagonistic action [1].) For most users, considering the sorts of squabbles one is likely to get into with the likes of Venmo, releasing Venmo from binding arbitration may be a net negative move. (If you get screwed for anything less than hundreds of thousands, you’ve given up your right to pursue.)
All you say is true, except in consumer contracts.
Generally speaking b2b arbitration is faster, sometimes cheaper, less reputation damage, better judgements. Judges in arbitration are usually way more experienced.
Arbitration in consumer contracts usually benefits the company. Companies select biased arbitrators, because they have control over the selection of the arbitrator. There is no discovery or depositions. Less details.
> Unless you reasonably see yourself starting a lawsuit
Vanishingly few go into a contract seeing themselves starting a lawsuit. The option is there for the exceedingly rare occasions it is needed. That option existing is very relevant to how the parties act in their working relationship. If you remove that option, the incentives promote acting in a way previously hindered by that option existing. It's a self-reinforcing loop.
> Despite the ubiquity of arbitration, consumers rarely use it. Wells
Fargo’s near 3.5 million fraudulent accounts is an illuminating
example. Using mandatory arbitration in its adhesion contracts, Wells
Fargo managed to keep arbitration claims low despite the wide-spread
fraudulent scheme. In reality, Wells Fargo only faced 250 consumer
arbitration claims between 2009 and the first half of 2017 (Economic
Policy Institute, 2017). A similar story exists for AT&T that has the
largest consumer base in its sector with more than 150 million
wireless subscribers, most, if not all, of whom are subject to
arbitration. In the first three months of 2019, only 111 AT&T
customers resolved their disputes with the company in arbitration (AAA
Consumer Report Q1, American Arbitration Association, 2019).
As to the "airing embarrassing stuff in public filings", we also know companies protect their public image. The customer (or their lawyer) may use the threat of a lawsuit, which will make the issue public, as leverage to get the company to resolve the issue.
A confidential arbitration clause removes this form of leverage.
> forcing millions of dollars of legal preparation
Venmo's terms allow taking an issue to small claims. It's only for larger issues - and class action issues - where binding arbitration is required. So of course these are the ones that are more likely to require "millions of dollars of legal preparation."
Just like how Wells Fargo could engage in widespread fraud without worrying about the millions of dollars it would have cost to lose a class action suit.
> the extra eyes don’t hurt
There are fewer eyes in the mandatory arbitration process than in the public court system. The latter is public (more eyes) and has a more extensive appeals system (more eyes).
Everyone should do as they ask and send in a letter. I'm doing so, but I'm also making sure that it's in several fun fonts that will delight the people who process it.
I can understand your sending it but the fonts won't affect anyone other the poor soul who has to read it, who is just another poor schlub like and mean. but putting plenty of clown faces and eggplants in there is probably acceptable.
The poor schlub who has to process these probably gets paid hourly and doesn't really care. It's about increasing the processing costs incurred by PayPal, which this will accomplish.
When every corporation attaches the same fifty thousand words' worth of abusive T&Cs to every service they offer, consumers have no choice: they can consent to being abused (in this case waiving their legal rights), or go live in the woods where they don't need a smartphone or a credit card. As usual, our impotent, incompetent, illegitimate government has utterly failed to protect us in this regard.
It doesn't matter if you have read them or not, because they could have changed the ToS 30 mins later to be something completely different and it is assumed you agreed to that too.
P.S.: At least can venmo be compelled to act or confirm our choice if we are forced to mail in their form? Can they claim they never received it, that it was printed incorrectly (since the form isn’t a PDF and can be easily rendered differently by various browsers) or missing some specific info?