Edelman on P2P Disclosures
Ben Edelman released a report entitled “Comparison of Unwanted Software Installed by P2P Programs.” The report evidences Ben’s typical skill and thoroughness, and it’s a worthy read.
However, the report struggles with the appropriate standards for measuring a workable disclosure system. For example, he writes: “substantive disclosures are generally detailed only in license agreements presented in scroll boxes — often squeezing thousands of words of text into small windows requiring dozens of page-downs to view in full.”
From a legal standpoint, several cases have affirmatively upheld the use of scrollboxes (the Forrest v. Verizon case comes most immediately to mind). This does not mean that scrollboxes are a good user experience—unquestionably, it is hard to read through long scrollboxes—but then again, there is no good user experience to deliver thousands (or even tens of thousands) of words of legal mumbo-jumbo. Putting these words in an uncluttered printable page will not make them any more likely to be read.
To me, this points to the real problem. The problem isn’t poor presentation of lengthy contracts, it’s a legal system that encourages or mandates lots of disclosures that consumers don’t care about. This trend towards mandating more disclosures can be seen in the regulatory efforts towards spyware, yet it’s generally predicated on assumptions about consumer interests that are not validated by social science. In other words, the more disclosures made by software manufacturers, the less likely consumers can understand and appreciate them—yet the legislators and class action lawyers are forcing manufacturers to make more disclosures.
Therefore, while Ben’s report is another great contribution by him, it would have been even better if we could have a common understanding of a disclosure process that actually facilitates consumer interests as documented by the social sciences. Without that understanding, Ben’s observations don’t point us in a helpful direction.
(FWIW, I do plan to write a lengthier article on the topic of mandatory disclosures over the summer, so I will offer more concrete suggestions then).