Over on Simple Justice, Scott Greenfield writes:
Remember reading Google’s terms of service? Neither does anyone else, because nobody does. We all click on the “yes” link that we’ve read and agreed to it because otherwise we can’t do whatever it is we were trying do when the TOS link popped up, and it’s not as if reading it opened up the possibility of engaging in negotiation with Google about what was fine and what was not so fine. It was take it or leave it, and leave it meant we didn’t get to use gmail, or whatever feature brought us there.
In legal parlance, one might characterize it as a “contract of adhesion.” Courts, on the other hand, treated it as if it was a legitimate contract, one that people entered into knowingly and willingly. After all, you clicked “yes,” didn’t you?
Orin Kerr has argued that people do not forfeit their Fourth Amendment protections against warrantless search and seizure by agreeing to Terms of Service, and to a limited degree, the Second Circuit has agreed with him, including a cite to his latest law review article on the issue.
Read more of his post at Simple Justice.