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

contubernio

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

dataflow

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...

yread

By both sides?

michaelteter

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.

ruined

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”

exmadscientist

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.

p0w3n3d

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

treetalker

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-...

hsbauauvhabzb

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.

chrismorgan

> 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.

koolala

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.

bradley13

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".

jmward01

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?

tastybberries

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.

cbsmith

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

soganess

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?

blitzar

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

codelion

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?

BlackFly

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.

ForgeCommandApp

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.