Too Long; Didn't Read: Finding Meaning in Platforms’ Terms of Service Agreements

Abstract

It has become a common trope to note that online terms of service agreements are lengthy, obtuse, and universally ignored by the millions of users who bind themselves under these contracts every minute of every day. However, the enormous power that a handful of online platforms now wield over the global expressive discourse, power which is manifested through interpretations of the content standards laid out in these byzantine documents, has led to a growing focus on how these rules are set, modified, and interpreted. In the context of an ongoing debate around reform proposals to section 230 of the Communications Decency Act, this article argues for a model of contractual interpretation which limits the scope of protection available to platforms through the boilerplate exculpatory clauses in their terms of service agreements. The article justifies this position through a comparative analysis of the user agreements of the three largest platforms, to demonstrate a widening gap between the structure of the content policies and privacy policies on one hand, and the boilerplate terms of service on the other, arguing that this structural evolution supports the application of theories of contract and pseudo-contract to interpreting the terms of service.

Keywords: boilerplate, freedom of expression, privacy, platform law, contract law, section 230, law and technology, facebook, twitter, youtube