There are so many advantages to turning off and disconnecting these days. Avoiding TOS is just a small part.

There are too many demands on our attention and our wallets and most of us aren't getting more money or time. I cancelled all the family's streaming services in 2025. Everyone adapted. It turns out a lot of things we are told we need, we really don't. People lived without them as recently as a few years ago. A lot of the novelty of mobile, streaming, social media and weird tech nobody needs has worn off and the value has been eroded. There are so many better things to do and experience and you don't need to hand over your privacy or sign your soul away.

Reminds me of the Sony bash.org joke

> <DmncAtrny> I will write on a huge cement block "BY ACCEPTING THIS BRICK THROUGH YOUR WINDOW, YOU ACCEPT IT AS IS AND AGREE TO MY DISCLAIMER OF ALL WARRANTIES, EXPRESS OR IMPLIED, AS WELL AS DISCLAIMERS OF ALL LIABILITY, DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL, THAT MAY ARISE FROM THE INSTALLATION OF THIS BRICK INTO YOUR BUILDING."

<DmncAtrny> And then hurl it through the window of a Sony officer

<DmncAtrny> and run like hell

The entire notion of being allowed to enforce arbitrary terms of service is absurd. There are probably a handful of terms everyone agrees are reasonable (no attempted hacking, rate limits, do not break laws) and everything else should be unenforceable. Especially garbage like what you're allowed to do with the stuff you get from the service even while not using the service, or about setting up competing products. It's like McDonald's selling you a burger and telling you how to eat it.

IMHO the problem is allowing changes to terms and conditions for existing contracts. If I have a contract with a company, that contract was made under existing T&C. The company should not be able to change those conditions without my explicit permission. Denying me service if I disagree should not be a valid option.

I get this periodically on our overly-computerized car: Here are new T&C, click yes to agree. You can make the screen go away temporarily, but there is no options to say "no, I disagree".

The precedents around TOS law is so clearly and obviously wrong.

Here, the court applied an “objective-reasonableness standard” to find there was “unambiguously manifested assent”.

Which could only be true if we give new, contrarian definitions to the words “objective”, “reasonableness”, “unambiguously” and “assent”.

What’s actually happening here is companies have been given the power to write arbitrary, custom laws defining their liability and responsibilities to their customers. It’s a bad situation because it’s not possible for people to actually know what the deal is. It’s not even that good for the companies in the long run, because they all end up coming off as used car salesmen

You win a case, but now Tile/Amazon === sleazy.

When your product is tracking locations there’s a trust barrier you need to overcome. How much would you trust Tile (Amazon) now?

Can I do the reverse now as well? Email a company a unilateral change in the TOS? Or do TOS's have provisions against that as well?

"I do not agree with your new TOS and will continue under your old TOS, and I will continue to use your service". And see when they will close your account down.

It's a bad ruling. By it's logic, McDonald's can mail me a contact where they take my car if I eat at their restaurant and all disputes go to their arbitration court, and I agree to the terms by ordering food from them.

It's really no different. In fact, in some ways it's worse because McDonald's can send the contact via certified mail.

These courts just want to clear their dockets which is why they reversed.

For those not familiar with US appeals courts, this is an unpublished order, which means that it's (broadly speaking; there are subtleties) not precedent and applies to this case alone.

Hm. It seems that use actually goes two ways. They continue to use my information even when I leave their platform. Does this mean I can email info@google.com updated TOS, since I am a party to it I guess, and if they keep selling my info they accept it?

If the Supreme Court justices uphold this, I'm sending the ones who vote yes emails, each with an EULA dictating that by opening and reading the email they agree to send me 100% of their salaries in perpetuity, as well as an initial, single lump sum payment consisting of all their assets thrown into a trust in my own name. If they push back on it, well they shouldn't be so upset about something they agreed to in the first place.

The issue is the consumer here doesn’t want to be forced into arbitration.

There is legislation proposed to end forced arbitration in consumer contracts like ToS.

https://hankjohnson.house.gov/media-center/press-releases/re...

  The TOS are changing from 1st of June as below: 
  - are your belongings are now ours 
  - please move out of your->our house
  - you cannot use the service anymore

The current state of terms and conditions is a clear failure of modern law.

No one is reading them, and it would be practically impossible to do so. Signing something you cannot practically read and understand clearly does not mean you actually accept them.

How can we wake people up to this absurdity? The law should exist to help society. When it is not helping, reform it.

My personal preference is for laws that promote reasonable limits on "Standard terms and conditions" and then recognizing that nobody reads them and making them applicable regardless of whether people read them or not. Then companies can stop pretending like people are reading the standard terms and unfair terms are just unenforceable. This does require that your civil law defines what unfair terms look like (generally that they are too one sided in favor of the contractor or are surprising given the service provided).

Obviously, this doesn't exist in the USA but does exist in (for example) the Netherlands. I would recommend lobbying in your country for such laws since in practice the vast majority of contracts like these that people face aren't actually negotiated nor negotiable.

Here is a critique of this case which I came across the other day, and may be of interest to you: https://blog.ericgoldman.org/archives/2026/03/ninth-circuit-...

Well, just one step more, and we'll have "TOS may be unilaterally updated by publishing the new terms on the firm's web site, it is entirely the user's duty to keep himself up to date, continued use implies unrevocable consent and giving up the right to re-negotiate" legal as well.

If "usage imply consent" then couldn't you just write unpleasant TOS updates so that they end up in the spam filter and then argue the user complied.

sending email + user using does not in any sane way guarantee that the user did even know about it

and if usage implies consent how do you even delete you account if you disagree with contract changes, as that requires logging in which can easily be maliciously seen as using the application as any landing page contains app functionality

So the other way around works too, right? I can fire off an email to a noreply address at any given company, call it "Terms Of The Serviced", and that represents a binding contract into which I can insert arbitrary obligations at will?

The implications for B2B contracts are significant here. In construction, for example, subcontractor agreements often reference separate terms documents that get updated independently. If email notice plus continued use constitutes acceptance, it changes the calculus for how companies manage contract amendments across multi-party project teams. The practical challenge is that on a large project you might have 50+ subcontractors who all need to actively acknowledge revised terms, and this ruling suggests passive acknowledgment through continued use may suffice.

PerplexityAI has been making the rounds of reddit because they had people sign up for 1 Year free of Perplexity Pro via various ways, including linking their PayPal accounts. After a bunch of people signed up, they scaled down what you get with Pro to basically what a free version used to be, and now the useful version of Perplexity is called Max. So you had an agreement for a certain service, and they just rugpull you on it.

by reading or not reading this comment, you imply consent for me to access, manipulate, and/or assume control of any of your checking and savings accounts, investments, stocks, bonds, options, futures, securities, lines of credit, and real estate that you hold now or may acquire in the future, regardless of my chosen method or manner of access. disputes arising from any such activity shall be arbitrated by me. you may opt out at any time by replying “I CONSENT”

I will send every company I use a service my own TOS via email, they then consulted, if they break my TOS I can then take them to court. Problem solved.

US law fails to recognize real world practice. It's bad engineering at its finest.

Semi-serious question: can I send a company a letter that modifies the terms and say that continuing to provide me the service implies consent?

The greatest effect of decisions like these is to reduce citizens' trust in the justice system.

So, can... can we do this too?

By continuing to send email communications, you hereby agree to the following terms of service:

I want a Winnebago. Fully equipped, big kitchen, water bed. AM-FM, CD, microwave. Burgundy interior.

By both sides?

So much stuff is getting put in Terms of Services that have nothing to do with using the service. Games will tell you how your allowed to make fan art in them. If I am drawing a picture at my desk I'm not even in the game.

How can you assume people see their emails? What if it gets blocked as spam? What if a person doesn't check their emails often? Are people forced to check their emails now all the time?

I have altered the deal. Pray I do not alter it again.

So if I email the company a TOS and say that continuing to allow me to use the tool should be considered acceptance of my new TOS that should be valid? Sometimes it's amazing to see the legal contortions people use to justify bad behavior on the part of companies.

If a service provider sends me a bill with

    <div style="width:1px; height:1px; overflow:hidden; font-size:1px; line-height:1px;">
      New Terms and Conditions
    </div>

Why not remove TOS completely, if your provider is anyway forcing new terms?

Suppose I start with simple TOS at the beginning: do not use in criminal scenarios

Then I change it to: do whatever you do with it, you are responsible for it anyways

I can even do this per sign-up, show TOS which makes sense, then next day send new TOS to allow everything

Fundamentally, the court seems to be treating this identically to a scenario where the user was ignorant and failed to read their inbox. The court seems to be completely disregarding that it was misdelivered into spam. The word "spam" doesn't even appear more than twice in the ruling (one of which is in an irrelevant footnote)!

Why the heck is the court completely oblivious to that fact when weighing the facts on each side? You'd think a case hinging on a crucial email being sent into spam would at least mention that fact more than once? (!) The court certainly seems to take into account common practices in every other aspect of the case except that most crucial one... why?! No explanation whatsoever? Would this really survive on a hypothetical appeal?

> As Tile users, each Appellee provided an email address during account registration, and should have expected to receive relevant updates there while the account was active.

Well yes, they did, but:

> Because “there is very little empirical evidence regarding” Internet users’ expectations, the focus of this inquiry is “on the providers, which have complete control over the design of their [apps and] websites and can choose from myriad ways of presenting contractual terms to consumers online.”

...Tile should've expected that its email might go into spam, right? Shouldn't the court at least mention this, even if it doesn't lend it any weight?

> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” and we do not hold that notice by mass email establishes inquiry notice in every case.

At least they say their ruling doesn't generalize...

They don’t even send you the changes. They just say “we’re updating our terms” in an email and you’re now bound by contract to offer the company your first born as an indentured servant upon demand. Fortunately, the “bury them with paperwork” strategy is waning in effectiveness now that an LLM can read a 50 page ToS and quickly tell me if there’s anything that works against my interests.

Consent should be treated like a default deny-all ACL.

I remember various judges writing ope-eds about being presented a 40 page TOS for updates. Southpark also did an episode.

TOS simultaneously became extremly important, commanding CEO attention and became completely ritulized.

I'm surprised that the legal profession has tolerated this is escalation of dysfunction.

And courts keep wondering why commoners lose respect for the law. I know a judge and had a couple of really interesting conversations with him. We agreed on lots of things but there was one item that stood out for me that made a massive difference in interpretation: to him the map was the territory, he saw the law as the thing that made the world, not the other way around. I always found that to be extremely interesting in that it explains why some of those decisions come across so completely tone deaf. On paper it may all look like it makes sense but in the real world it leads to bonkers effects.

The interesting thing is TOS changes by email might be more notification than currently is provided.

It seems likely that someone, somewhere, will turn LLMs against monitoring TOS' and help customers provide feedback when they want to but might not know how.

Even if it makes things overly complicated sometimes, I like the EU style that forces companies to make people actively confirm their consent, and puts the 'inform' part of 'informed consent' into the company's responsibility.

The original Minecraft EULA did not have any of the usual boilerplate language to support unilaterally modifying the terms. I had a Minecraft account purchased under this original EULA which was modified a year or two after I bought the game. Around 5 or 6 years ago, Mojang emailed me about changes to their login system that would require me to migrate my account to Microsoft’s system (no doubt under new T+C), but the migration process never worked and they never responded to my support requests.

When I tried to resolve it a couple of years ago I received boilerplate emails informing me that the migration period had ended.

So if you deal with companies that simply don’t honor their contracts—companies like Microsoft and Mojang—you don’t even need use to imply consent, because they can just lock you out of your purchases and tell you to pound sand.

Do you own a semi-popular product? Just send an email to users saying USE OF THIS PRODUCT NOW COSTS 1 BILLION DOLLARS.

And target some user with some money to lose and sue them for it.

Might be fun to take some BSD or MIT licenses and send out e-mails updating them to GPLv3...

This would make more sense if email was 100% guaranteed to be delivered. Not sure if this angle was argued, but just like regular mail, just because something was claimed to be delivered is not enough to prove that it was, hence the existence (in the US) of certified mail and signature return receipts.

When an enforced agreement can be updated at a whim one may no longer feel compelled to recognize law or those enforcing it. Pray this sentiment does not spread far and wide as citizens outnumber their masters and one day the citizens may come to realize this.

the key issue is the interpretation of "consent" when continued use is the only option. aree users truly consenting, or are they simply left with no alternative?

TOS are in a weird spot. The ruling contends that a “reasonably prudent Internet user” would have noticed and read the email, but I would contend the opposite with the acknowledgement that it would make TOS effectively obsolete.

A reasonably prudent internet user gets half a dozen of these a day, and prudence would dictate the obvious futility of reading all of them, much less remembering the terms bound by each service.

It does mean that TOS would be almost wholly unenforceable, but that may be a bridge we need to cross as a society. These documents have gotten too large and updated too frequently to reasonably bind the population at large.

If you cannot identify the user, you should not claim in court that the user agreed to your terms of service agreement.

If you have not proved that the user who agreed to an agreement was the user using the account, then you could very well be attempting to prosecute the wrong person.

It is very possible for one user to steal the account credentials of or impersonate another user.

For example, Police officers routinely impersonate other users in order to collect evidence.

I had the somehow the same problem with a mobile operator here in EU. They said just by sending an email I agree with their new terms and subscriptions. It's a gray area, IMO. They could simply terminate the service but who wants that?

The fact of changing the terms of fact after you sign up and bought products is ridiculous.

> In October 2023, Tile sent to all accountholders […] an email with the heading “Updated Terms of Service and Privacy Policy” […] to the email address provided by accountholders during registration, […] “[i]f you continue to use any of [Life360 and Tile’s] apps, or access our websites (other than to read the new terms) on or after November 26, 2023, you are agreeing to the [Oct. 2023 Terms].”

> Broad did not locate the Oct. 2023 Notice until January 2024, when she affirmatively searched for the email and found it in her spam folder. […]

> Doe “never knew that Tile sent” the Oct. 2023 Notice and so never “read any revised or updated Terms.”

> The district court held that neither Broad nor Doe assented to the Oct. 2023 Terms.

So then it was challenged, and the appeals court gets into the weeds: were the Appellees “on inquiry notice of the Oct. 2023 Terms”? (“Inquiry notice” is clearly a specific legal term, I can’t comment on its precise meaning.)

The entire thing seems to hinge on whether appropriate notice was given: it seems to be accepted by all parties and case law that “continuing to use after such-and-such a date implies consent” is okay. (This is explored at the end of the document: simply using the app is treated as “unambiguously manifesting assent”, presuming inquiry notice.)

The court decides: yes, it was sent in the appropriate way and clearly marked and described. And

> Although the email did not say specifically that the arbitration agreement would be updated, reasonable notice does not require the email to discuss every revision.

They do say

> Tile could have done more to ensure that all its users were on inquiry notice of the Oct. 2023 Terms. Tile could, for example, have interrupted users’ next visit to the Tile App with a clickwrap pop-up notice. […] Because Tile should have known that at least some of its users do not closely monitor email, […] and Tile should have furnished additional notices, this factor weighs against finding inquiry notice.

They conclude: two factors for, one against, and thus determine that inquiry notice was received, although Tile didn’t handle things properly themselves, and should have done more.

But they avoid setting this as universal precedent:

> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” […] and we do not hold that notice by mass email establishes inquiry notice in every case.

—⁂—

This is my interpretation from a brief read of this interesting-sounding document. I’m neither a lawyer nor American. My understanding is almost certainly incomplete. I think I have avoided inserting any interpretation of my own, others can do that.

I see a lot of people commenting as if this is a ruling. Is it?

It looks like a filing of appeal.

"By implicitly accepting these terms you shall therefore with an immediate effect pass the ownership of all of your belongings to us, the Evil Company. Non-compliance will be met with a legal action nd we have very expensive lawyers on speed dial."

To be fair, this document says that they updated TOS and by continuing to use the app, you agree. (End of page 3)

And the consumers are being shafted again. This decision benefits the companies and screws the consumers.

>US Court of Appeals

Call me when the only court that matters makes a move.

interesting. if this is to be allowed, it must be allowed both ways.

The court sounds bought, I hope they paid them well.

How did Trump force platforms to allow him to harass and disrespect and incite, despite all of their TOS reserving right to ban such conduct?

There's a bunch of people here commenting that clearly didn't read the ruling and are saying hyperbolic things like (made up example) "DoorDash can take your house by silently updating the ToS to say if you don't tip, they can take your house". That's not what this says at all.

The issue is here is quite narrow: it concerns if cases need to go to arbitration or not or if the Northern California district court has jurisdiction. This concerns a change in the ToS (in October 2023). So, first off, the notion that can enforce arbitrary terms this way is false.

There's case law and legislation that the burden on the party seeking arbitration received assent for that and all this ruling does is say that sending the terms for that to the user-supplied email address combined with continued use of the app or website is sufficient to show that.

It's really no different to say that if you send someone a letter then that qualifies as notice. If that goes to your spam folder or you choose not to read it, that's kind of your fault.

But no, this isn't carte blanche to imply consent for any and all changes in ToS sent by email from continued use.

"and we do not hold that notice by mass email establishes inquiry notice in every case."

Basically the case met two of three factors and so they said yeah probably but its not establishing precedent because each case is special.

Gonna try this with my landlord....

Trust no one.

Never sign or use anything.

Is it just me or is the US unraveling?

Is this panel (Gould/Clinton, Nguyen/Obama, and Bennett/Trump) a standard pull for the ninth? Considering how many judges are in the ninth:

> https://en.wikipedia.org/wiki/United_States_Court_of_Appeals...

It seems less likely to (randomly) have the same panel on two higher profile cases so close to each other:

> https://courthousenews.com/ninth-circuit-keeps-block-on-dhs-...

So I'm wondering if it is some procedural thing I am not privy to?

How do they ensure that the email reaches the destination though?

I have had emails never delivered to me, not due to my own fault but the service provider filtering it away before I could do anything. It is also dangerous to assume "use implies consent". I am sure there are other ways to ensure terms of use to be changed; if it is a web-application then one could only resume using it if the services were accepted before.

well, I hope the companies doing that have someone watching contact@ to cut my acces when I send my version of thr updated terms of service, since allowing my usage can imply consent. Right?

The email account I cannot access because google decided to ask me for a captcha for which I have no knowledge of, and the don’t have a human help desk that I can contact to prove ownership by providing ID documents?

Got it.

US capitalism (aka, powerful financial entities driving policy).

To be fair, not all people in business or government prioritize "the all-mighty dollar" over everything else. Unfortunately, those who don't usually have principles; those who do often are willing to break rules. This is not an even match.

JFC, BOYCOTT EVERYTHING!

Seriously, WTF? We know the leverage we all have but we refuse to use it because "convenience".

lol what a load of crap.. since when can a contract be changed by one side only without the other one signing it off?

Yet another example of this administration taking the side of companies over constituents. Now that the Consumer Protection Bureau has been dismantled, we can only expect more rulings like this.

In summary, the Ninth Circuit applied California law to determine that users received sufficient notice. Are other states' laws on notice similar enough to California law for this ruling to be applied broadly? I understand that the order is unpublished so the ruling has little precedential value regardless but I wonder whether the three-factor test is used in other states.