One of the largest issues facing American consumers is abusive End-User License Agreements (EULA) and subsequent data collection. Due to the Internet’s rapid expansion into commerce, Congress failed to address the rights of individuals against companies and their teams of lawyers. Often EULAs take away the right of consumers to litigate in court, to bring forward class-action lawsuits, or to control the data given. Traditionally contracts have been between legal professionals or presented with the opportunity to consult with a lawyer, EULAs are perniciously personal. The sheer number of legal agreements to use everyday technology would take hundreds of hours the average consumer cannot afford to read or pay a lawyer to read. Furthermore, these EULAs break the standard norm in contracts to change terms of the contract or make editing significantly difficult. Furthermore, the average consumer does not have the expertise to decipher the legal language to understand what he or she is agreeing to. The result is a lack of public discovery, greater control of corporations over private data, which led to enormous data breeches like Cambridge Analytica including information collected solely for profit without primary utility to the service provided. Although ignorance or mandatory arbitration are not valid excuses for termination under the law, the Courts were made to apply the essence and intention of legislation to specific circumstances, and the exploitation of data usage through documents corporations assume consumers will not read is against the spirit of equality and basic competency needed to enter into a contract: in summation, EULAs are a modern form of duress against disadvantaged consumers.
The solution is simply legislation, however the federal government has struggled to proactively protect and extend consumer rights. The needed comprehensive legislation to address the rights of the consumer in digital marketplaces is unlikely in a divided and lethargic Congress. The Supreme Court, who traditionally bore the extra burden through judicial activism, struggles to break with precedence to see the novel threat of EULAs or to see the substantial power differential between consumers and corporations.
Therefore, a state-level acceptance of broader consumer protection laws, like the CCPA and even the GDPR, need to be used as momentum to get civil society into their statehouses to get the protection they need. The issue is bipartisan: protection of privacy and protection of the disadvantaged. The barrier to change is significantly lower, since turnover rates and receptivity to constituents are much higher in state politics. The key is to organize similar legislation across enough states to force the federal government to act. Consumers deserve control over their privacy, over the terms of a contract, and the freedom of association to protect themselves and loved ones from corporations purely seeking profit maximization.
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