Law students actually read those terms and conditions for you

Last modified: 2/9/2014 11:39:02 PM
Yes! It’s all yours. That Apple iPhone 5s is in your hand. You picked out the color – maybe you changed things up a bit and went space grey or gold. Maybe you got a bolder color Otterbox to both protect that pricey new bit of technology and still show off your sense of style. You probably can’t wait to make your first call and see just how great this new phone is going to be.

Of course, there are just a few small details to take care of first. There are a few boxes to check off – yes, yes and yes. You click them all with your finger because, yes, you just want the phone. If you choose no on any of these things, then, simply put, you have no phone.

Sure, every click on that touchscreen is your legal signature, but it’s a cell phone, how much does it really matter? What could be so frightening about an iPhone contract? Scrolling through the pages of text, you find the end, and check it. Yes, you understand the terms.

But, do you?

Probably not, say a trio of students at the University of New Hampshire School of Law in Concord. These three developing legal minds are creating a method of rating online contracts, and they hope to make those ratings public by this summer through a website that will allow consumers to differentiate between what they call, for simplicity’s sake, good and bad company contracts.

These contracts have the potential to have much more power over a user’s life than most imagine, said Philip Schreffler, the primary promoter of the group creating the rating system.

“The moment something goes wrong is when people end up discovering that they have given all their power away in these contracts,” Schreffler said.

Like that iPhone 5s. It has a fingerprint identity sensor, and that’s pretty cool, right? That protects the owner?

Well, whether it’s cool or protective depends on how you look at it, Schreffler said. If you are concerned about things like the National Security Agency or any other law enforcement agency having your information, you might want to review Apple’s privacy policy to see how delicately Apple plans to handle your biometric data. After all, you did just gave Apple your fingerprint, and you did just agree that they could use their discretion in deciding when to give it to the police.

Missed that part? Apple’s policy doesn’t specifically say the police would need a warrant to get your information – like some online companies state. Apple says it will give law enforcement information “upon request,” Schreffler said.

Or, how about E*Trade? Did you know that before you began trading stocks online with this company, you agreed that it was okay for E*Trade to not work? It’s called an implied warranty of merchantability, and if you are using E*Trade, you have already waived that right, Schreffler said.

Schreffler describes merchantability very simply.

“Let’s say you buy a screwdriver. Oh, gasp, it’s crazy, I bought a screwdriver, and it will drive a screw,” he said. “It will do what it is intended to do.”

Because a person using E*Trade has waived any rights to merchantability, if something goes wrong on E*Trade’s end that results in a loss of money, Schreffler said, the user would have no legal redress.

“E*Trade can turn around and say, ‘Oh well, this thing could actually trade stocks, but we never said it would actually work, and you waived that right,’ ” he said.

E*Trade is one of the more offensive contracts on the market, Schreffler said, but there are others that push limits. Google, for example, makes sure it restricts any potential lawsuits by forcing users to file suit in only one court.

“There are things called venue restrictions,” he said. “Google is starting to infiltrate all the branches of our life. In the terms of service, there is only one court in the country that you’ve agreed to sue Google in. You’ve read and understood this, right? So you can only sue them in the district court of Santa Clara.”

Hey, these law students say they don’t want to be downers. They know that people like their phones, and, they also know that, right now, consumers don’t have much choice but to agree to whatever Apple or Google says.

But, they hope their rating system can help shift more power to the consumer, Schreffler said.

Once consumers are educated, Schreffler and his friends hope people will begin to seek out companies that offer fairer contracts – thus making it more financially desirable for a company to have a simple, fair contract.

The three students haven’t agreed on what to call their rating system, but the Consumer Contracts Rating Board seems to have the most appeal at present. They will rate companies based on a scale of 1 to 5 in 14 different areas. Those areas include readability, understandability, indemnity clauses and venue restrictions. Schreffler says not to worry, there will be definitions of legal terms on the website.

The idea for a rating system came from research Schreffler and his two friends, Justice Rines and Marcus Evans, began in an e-commerce class at the law school.

Schreffler said what they found in the contracts on phones and in applications disclosed a level of legal manipulation by many companies that went beyond anything they imagined. When, just to have a visual, they printed out the basic contracts involved in getting an iPhone running, they were astonished at the length and complexity of the terms.

“It was 74 pages, full of 8½ by 11 of material that you have agreed to and probably never looked at,” Schreffler said.

“I was sitting there going, ‘Oh my God, this is evil,’ ” he said, laughing, “I was looking at my iPhone thinking, ‘What have I done?’ ”

Schreffler has a passion that goes beyond the need to sort through the sheer bulk of words on the paper towering on his desk. When he speaks, there is more to the 26-year-old student from Ohio than just legal terminology and theory. He talks with simplicity. He says everyone needs to be able to understand these contracts. Schreffler speaks of corporations being held accountable, and he has a strong belief that the free market will regulate itself, given the chance.

“When you don’t have equal knowledge it corrupts the system and it empowers those who have the knowledge to completely control the market,” he said.

Consumers should also not have any misconceptions that a judge might go easy on them for not understanding such a complicated contract, Schreffler said.

“You signed it. You said you understood it,” he said. “It’s really hard for a court to get you out of the contract even if the judge really wants to.”

(Daira Cline can be reached at 369-3306 or dcline@cmonitor.

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