Like you, no doubt, I’ve closely followed the trending technology of the iPhone since so many highly knowledgeable lawyer social media gurus have expressed their heartfelt belief that it’s the piece of technology that will change everything (game changer, in SM parlance). I had my doubts until I read this post by Henry Blodget.
I got an app for my iPhone the other day.
And I hadn’t gotten an app in a while. And that meant that the same thing happened that happens every time I get an app, which is that Apple interrupts me in the middle of the process to tell me that the iTunes Terms & Conditions have changed and that I have to read and agree to the new Terms & Conditions before I can have my app.
Then Apple tells me that the Terms & Conditions are 56 pages long and asks if I have read them and agree to them.
As everyone knows, click through terms and conditions aren’t meant to be read, but merely clicked. Nobody reads them. Nobody. If Richard Posner can’t be bothered to read boilerplate, who are we to differ?
And indeed, buried deep within these 56 pages of terms and conditions, there’s this gem that proves the worth of our choice:
CHANGES
Apple reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Service. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Service will be deemed acceptance thereof.
Thus, no matter what we’ve read or not read, there’s no reasonable expectation that it will remain the same five minutes later, even if they sneak in a bit about owning your immortal soul.
Never, in my wildest imagination, would I have appreciated just how important the iPhone, together with its seven billion (and growing) apps, would be for lawyers. Clearly, the social media gurus were right, more so than even they could have possibly imagined. You see, every 56 page click-through “terms & conditions” has to be written by a lawyer, and modified hourly to keep abreast of technological developments, thus providing a constant stream of opportunity for lawyers. And you wondered whether lawyers were still relevant in the digital age. Hah.
“But what about us criminal defense lawyers,” you ask? “We’re not the sort to dash off 56 page terms & conditions, or even hourly updates. What good is it to us?” Fair question, but fortunately, there’s a great answer.
Take a look at 18 U.S.C. 1030(e)(6), criminalizing “exceeding authorized access” to a computer, program, website, you name it. You can even exceed authorized access to your very own computer, though that’s unlikely to do anyone much good as it would be pointless to charge oneself for your defense.
The point is that if we all craft very long terms and conditions and include a few sneaky ones, like no user is allowed to wear blue clothing during use, then press our good buddies down at the precinct or prosecutors office to fight computer crime, we, like our scrivener brothers and sisters, can make a killing off this. This could be the biggest crime wave ever, with essentially every man, woman and child a felon with an iPhone.
Do it, and do it now. This is opportunity staring us in the face, and we can either hop on board the iPhone train or watch it pass us by. And do it quickly before some court somewhere goes and blows our deal by recognizing that these terms and conditions are utterly meaningless, universally unread and no agreement whatsoever.
And to all those technophiles about whom I’ve said or written less than positive things, my apologies. When you said the iPhone was a game changer, I never realized how right you were.
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Well, with terms like these, you might be on to something. Just think if the feds couldn’t prove their terrorism charges, but could still get you via an exceeding authority charge! It’s like Al Capone for the digital age.
Exactly. That’s the spirit, Nathan. We need to find the silver lining behind every dark cloud.
Randazza has a kooky set of Terms of Use linked from his site. I started ripping them off, and am going to adopt them.
Stop me if you’ve heard this one before . . .
When Steve Brust was negotiating his very first book contract, some decades ago (just about the time I was), he read over the “standard” boilerplate, and after getting up off the floor, asked his agent (writers deal with publishers through agents for about the same reason that the indicted deal with the “justice” system through CDLs) that they agree to include a phrase where the publisher agreed to give up all rights to “forcefully and brutally sodomize the first-born male child of AUTHOR.”
The agent dutifully sent the request along, and the publisher politely responded: “We don’t want to set a precedent.”
What a rookie. Didn’t he know you have to suffer for your craft?
Why on earth haven’t the courts ruled “changes” provisions such as that one (which seem to be in every contract of adhesion) as being “unconscionable” and/or constituting fraud? Surely every judge can’t be in the pay of corporations the way every politician is.
We were young, and writers.
It was long before I bought a button — still got it around — that says, “That which does not kill me I turn into $$$.”
More seriously,for just a sec: my own theory is that in writing (about which I know something), practicing law (about which I seem to be learning enough to write about, although not as an insider), and every damn thing else: no need to go out and seek out pain to enlighten; it’s already got your address. And it probably doesn’t enlighten you, anyway.
The late George Alec Effinger — an utterly brilliant writer — went through the twenty years I knew him in literally incredible pain; he had repeated abdominal tumors, and the adhesions from the operations got worse every year. I think he could have written When Gravity Fails without a hint of it, and so did he.