Congratulations to REUL Lab Undergraduate Research Assistant Lexie Scott for her fantastic accomplishment of winning third place at the Special Interest Group at the Design of Communication (SIGDOC) international undergraduate student research competition! Read more about her achievement here.
Only a few months after United Airlines’ massive controversy surrounding the treatment of passenger, Dr. David Dao, who was dragged off a flight with blood on his face in order to make room for an airline employee, the airline is back in the limelight following another incident when a mother was forced to give up her child’s seat and travel with her 27-month old son on her lap, unsecured. The FAA has announced that they will be investigating the incident which seems to be a clear violation of the federal regulations that require individuals who have reached their second birthday to have their own seat and safety belt. Were the FAA to find that United did in fact violate the safety regulations, United would be levied a fine of more than $32,000.
The latest incident involved Shirley Yamauchi, a teacher from Hawaii who was forced to give up her son’s seat after they were both already seated on a United flight and instead hold him in hers for the duration of a 3-hour long flight. The airline did issue an apology indicating, “we inaccurately scanned the boarding pass of Ms. Yamauchi’s son. As a result, her son’s seat appeared to be not checked in, and we released his seat to another customer.” The incident is a direct violation of one of United Airlines’ own policies about traveling with children, which states that “once infants turn two years old, they are required to have a purchased ticket and occupy a seat.” The two recent incidents reveal much more than just policy violations. They reflect deeper issues within the airline’s culture that seem to place higher priority on profits than they do on customer satisfaction, and, more importantly, safety.
Forbes contributor John Goglia made the statement that “as a long-time airline safety advocate and accident investigator, it is stunning to hear of such a basic safety requirement as wearing a separate seat belt being flouted by an airline. It is also dismaying to imagine a flight attendant forgetting basic safety training, more so to imagine an entire cabin crew ignoring this very basic safety requirement. After all, flight attendants are on board aircraft first and foremost to serve a safety function. How much more basic a safety function than ensuring each passenger required to have a seat and be appropriately strapped in, is in fact appropriately seated with a seat belt?”
One would expect that after the incident involving Dr. Dao, and the subsequent changes that were made to United’s policies, that an incident like this would not have happened—at least not so soon. And it will again, and again, until United begins the process of re-examining its core values, and retraining their staff, empowering them to make decisions in the interest of their most important stakeholders, the customer.
Evan Knox is a 3rd Year Business Administration Major at Georgia Tech and an Undergraduate Research Assistant for REUL Lab.
On June 23, United Airlines completed the legal changes to their Contract of Carriage—a contract which all passengers flying with United must agree to in order to purchase a ticket. The update to the terms and conditions was an an attempt prevent a similar situation like the forcible removal of of Dr. Dao, which took place two months earlier. The effects of the incident have rippled throughout the airline industry, and a number of major airlines have made substantial changes to their own policies following the events which took place. Let’s take a look at the changes made by the Big Three:
On April 26, Hugo Martin of the Los Angeles Times reported an announcement of several changes that United promised to make to their company policies. Several of the changes were finally written into their Contract of Carriage more than two months after they were first announced. According to Martin, United Airlines will now:
- Offer up to $10,000 for passengers to give up their seat voluntarily.
- Limit the use of law enforcement on a plane, except for safety and security reasons.
- Stop forcing passengers already seated to give up their seats, except for safety or security reasons.
- Come up with creative solutions for finding alternative transportation for passengers who have been denied boarding, such as flying them from nearby airports, putting them on flights of rival airlines or using ground transportation.
- Ensure airline crews book a seat at least an hour before departure.
- Provide employees with additional annual training.
- Create an automated system for soliciting volunteers to change travel plans before they take their seat.
- Reduce the amount of overbooking.
- Empower employees to resolve customer service issues on the spot.
- Cut the red tape that passengers face when reporting lost luggage.
One of the criticisms following the announcement of these changes is the extremely vague and subjective nature of many of the terms. As a result of the phrasing of the promises made by United, there is no way for the airline to be held accountable for many of the promises that they made to customers. For example, within United’s Contract of Carriage, there is no actual reference to the amount that the airline will offer to customers to give up a seat voluntarily. Rather, it states “UA will request Passengers who are willing to relinquish their confirmed reserved space in exchange for compensation in an amount determined by UA (including but not limited to check or an electronic travel certificate). The travel certificate will be valid only for travel on UA or designated Codeshare partners for one year from the date of issue and will have no refund value.”
Although it sounds good to make these improvements, the lack of legal implications and the continued challenges that United seems to have in securing the safety of their passengers, [read about the latest incident here] reflect that the airline may be more focused on damage control for the airline’s reputation among passengers and shareholders following the incident involving Dr. Dao than on making actual improvements for customers.
Delta Air Lines
United was not the only player in the airline industry to make changes to their policy following the incident involving Dr. Dao. CBS News reported that with regard to overbooked flights, in order for passengers to voluntarily give up their seat, Delta Air Lines will now give permission for:
- Gate agents to offer $2,000 (up from $800); and
- Supervisors to offer up to $9,950 (up from $1,350)
Interestingly enough, Delta announced their plans to offer up to nearly $10,000 to passengers to volunteer their seat before United did so, which has led to speculation that United only did so to match Delta’s offer.
The Washington Post reported that American Airlines too had a response to the incident involving Dr. Dao, a promise that no passenger of theirs who has boarded a plane will be removed to give up their seat for someone else.
The major changes that have come from airlines besides United reflect a change in the posture of the airline industry as a whole in response to the public relations nightmare which United had to face. This incident was a powerful demonstration that it only takes one incident for a company to reconsider its terms and conditions with their customers.
Evan Knox is a 3rd Year Business Administration Major at Georgia Tech and an Undergraduate Research Assistant for REUL Lab.
(Revised Nov. 28, 2016 to correct typographical errors.)
- It was a two-step process. Id. at *4.
- On the first screen, users “were prompted either to register using Google+ or Facebook, or to enter their name, email address, phone number, and password and click ‘Next.’” Id.
- “The second screen of the Uber registration process features, at the top of the screen, fields for users to insert their credit card details. Beneath these fields is a large, prominent button whose width spans most of the screen; it is labeled “Register.’” Id.
- “Beneath this button are two additional buttons, with heights similar to that of the ‘Register’ button, labeled ‘PayPal’ and ‘Google Wallet.’ These buttons indicate that a user may make payments using PayPal or Google Wallet instead of entering his or her credit card information.” Id.
- The court noted that the terms “consist of nine pages of highly legalistic language that no ordinary consumer could be expected to understand.” Id. at *5.
- There are three steps or screens on the Uber mobile app, which all the plaintiffs used to create their accounts. Id. at *2.
- The first screen collects email and phone number. Id.
- The second screen collects name and photograph. Id.
- The third screen requires the consumer to link a credit card or Paypal account to the Uber app to pay for rides. Id.
- The consumer proceeds from the third screen by clicking a button with the word “Done” in the upper right-hand corner of the screen. Id. at *3. Though the consumer must fill out all the boxes on the screen before she can click “Done,” it does not appear from the court’s opinion that she must click on the terms and conditions button or view the terms and conditions in order to proceed, making this an instance of “sign-in-wrap” or “sign-up-wrap.” (See discussion in the summary of Berkson v. Gogo).
September 6, 2016. Dangers of agreeing to ‘unfair’ terms and conditions without reading. This article by Tegan Atkins on New Zealand broadcaster website Newstalk ZB discusses a study by Alexandra Sims, associate professor and head of Commercial Law at the University of Auckland Business School. Sims studied the terms and conditions of more than 30 businesses to see if they comply with what is apparently a recent New Zealand law that requires terms and conditions in consumer contracts to be reasonable. (The article does not cite or link to the law.) It seems from the story that the New Zealand law would apply to EULAs, but it also clearly applies to other business-to-consumer contracts, like the contract between an apartment dweller and an electric utility.
Sims found that few of the businesses had removed unfair terms after the law became effective. She chalked this up to the fact that enforcement of this law occurs only if the country’s Commerce Commission challenges a business’s practice. In the absence of Commerce Commission action, even ‘unfair’ provisions must be enforced by courts against consumers. Sims suggests that the law should be changed to be similar to Australia’s, which provides the consumer a direct means of enforcement. (The article does not cite or link to that law, either.)
A little research by REUL Lab turned up these additional facts:
- New Zealand does have a law that prohibits “unfair contract terms”: the Fair Trading Amendment Act 2013.
- The Commerce Commission of New Zealand enforces the unfair contract term (UCT) provisions of the Act. It has published its UCT guidelines in a consumer-friendly PDF. According to the guidelines, the UCT provisions do not permit consumers to bring complaints about UCTs; rather, the CC must bring them.
- According to a publication of the Australian Competition & Consumer Commission, the Australia Consumer Law went into effect in 2011 and prohibits UCT in business-to-consumer form contracts. It is not limited to EULAs.
Technical communication researchers and teachers might find the New Zealand and Australia government publications interesting for study in the EULA problem-space.
September 6, 2016. When you check the box, check your outrage. Essay by Boston Globe columnist Dante Ramos. Ramos’s piece recaps a few recent EULA news stories: The study discussed in the NPR story late in August 2016, which showed that most folks don’t real EULAs, and a recent announcement by YouTube that it was “demonetizing” the videos of some of its content providers. (That story was covered in a Variety piece September 1.) The EULA angle in the latter is that YouTube defended itself by saying that its policy was already in its EULA. Ramos’s original contribution here is his reporting on the iPhone terms and conditions.
September 1, 2016. White nationalists use Twitter with ‘relative impunity’: report. Article by reporter Dustin Volz. According to a study by researchers at George Washington University’s Program on Extremism, white nationalist extremist groups in the U.S., including the American Nazi Party, are gaining growing influence on Twitter, while Islamic State or ISIS’s influence on the platform is declining. The latter is due at least in part to Twitter’s “aggressive campaign to suspend Islamic State users – the company said in an August blog post it had shut down 360,000 accounts for threatening or promoting what it defined as terrorist acts since the middle of 2015.”
Volz reported: “Asked about the study, a Twitter spokesman referred to the company’s terms of service, which prohibit promoting terrorism, threatening abuse and ‘hateful conduct’ such as attacking or threatening a person on the basis of race or ethnicity.” One of the researchers noted “greater free speech complications” with shutting down the white nationalist groups, but this is difficult to understand in light of the fact that users of Twitter cannot rely on the First Amendment. Twitter is not a “state actor,” and it is therefore not required to offer its users the full panoply of “free speech” rights guaranteed under the Amendment.
September 5, 2016. ANZ to Refund $28.8 Million to Clients After Unclear Fee Disclosures. Article by Rosemary Barnes on FinanceMagnates.com. The article reports the agreement of Australia and New Zealand Banking Group Limited (ANZ) to repay more than AUS$28 million to its customers after charging them for fees for periodic transfers among their own accounts, in violation of the bank’s terms and conditions. The bank itself reported the problem to Australian regulators.
End-user licensing is the effort by which producers of software, websites, mobile applications, and consumer products with embedded software (including the so-called Internet of things) attempt to define their legal relationships with the consumers or users of their products. In this discussion, the producers are licensors, and the consumers or end-users are the licensees. The texts that embody these legal terms can broadly be considered license agreements, but they go under many different names:
- end-user license agreements or EULAs
- terms of service or TOS
- terms of agreement
- software license agreements
- and others
The Responsible End-User Licensing lab (REUL Lab) typically uses the term end-user license agreement or EULA to refer to all such agreements. Privacy policies are subject to different legal standards in some respects, and so REUL Lab considers them as a separate but closely related category.
EULAs often address various legal issues that consumers could reasonably expect in a product transaction:
- Acknowledgments of the producer’s copyrights, patents, and trademarks in the product.
- Limitations on the end-user’s use of the product.
- Limitations on the producer’s liability and risks associated with the consumer’s use of the product.
- Limitations on the producer’s warranties to the end-user licensee.
But EULAs sometimes also include possibly objectionable terms:
- Transferring ownership or very broad licenses from the end-user to the producer to works that the end-user creates. For example, a website hosting end-user photos might claim a license to be able to use and modify those photos without compensating the end-users who created them.
- Limiting the consumer’s right to write a review of the product or make other statements about it (sometimes called a DeWitt or gagwrap clause).
- Limiting the consumer’s right to make fair use under the Copyright Act of materials available in or on the product.
- Requiring that disputes between producer and consumer must be adjudicated in the producer’s ‘hometown,’ which may be cost-prohibitive for many consumers.
- Requiring that disputes between producer and consumer must be resolved by arbitration or under other terms that may be favorable to the producer.
Producers of websites and products generally wish end-users to be bound by the terms of their EULAs; in other words, producers want the EULAs to be legally enforceable contracts. Some critics have argued this is a problem on several grounds: First, it is received wisdom that few consumers actually read EULAs because of their length, complexity, the way in which they are presented, or some combination of these factors. There is actually comparatively little empirical research on this topic, but the research that exists supports this view. Second, the consumer has no means of negotiating the terms. Even at the grocery store, a consumer has the option to ask if she may have a bruised melon at a discounted price. EULAs represent take-it-or-leave-it propositions. Finally, it is not always clear to the consumer that the EULA is meant to be contract.
This last concern arises from the various extents to which sites make their EULAs apparent to consumers and obtain consumer assent to the terms. The approach that is most like asking the consumer to say “I agree” is the click-through license, also sometimes called a clickwrap agreement. In this approach, the consumer is presented with a screen, dialog box, or other automated prompt that requires her to click a button or icon on the screen that says “I accept” or “I agree.” A display of the EULA or link to it accompanies the prompt. If the consumer clicks on “I accept” or “I agree,” she gains access to the product. Otherwise, she cannot make use of it. A variation of the click-wrap, called a scrollwrap by at least one court, requires the consumer to view at least a portion of the actual text of the agreement or even to scroll down through it before she can click “I agree.”
Legal questions (normative/empirical)
- Are EULAs legally binding contracts? Why or why not?
- What is the legal impact of provisions in EULAs of popular/major websites, apps, and consumer products?
- What terms in EULAs, if any, will be held unenforceable, even if a EULA as a whole is regarded as a binding agreement?
Business questions (empirical)
- What business concerns drive the provisions that producers put in EULAs and the approaches they adopt for attempting to obtain consumer assent to them?
- Are producers concerned about whether their licensing practices are deemed ethical?
- Do producers believe their licensing practices are ethical?
- What provisions do EULAs of popular sites contain? Could we team up with Clickwrapped.com to work on this?
- How would producers react to having a model like Creative Commons that they could show they comply with? How would it have to be structured to give them flexibility but still to give effective notice to consumers?
Public policy questions (normative/empirical)
- What public policy frameworks can address legitimate concerns of consumers and producers in the EULA context? (UCITA being one arguably failed example.)
Ethical questions (normative)
- Should producers engage in certain practices to give consumers “fair” notice of provisions in EULAs (or some of them anyway), even if the provision would be held legally binding absent the “fair” notice?
- Should producers refrain from including certain provisions in EULAs if they know/believe that consumers do not or will not read EULAs? If so, which provisions should they avoid?
- Should consumers read EULAs before clicking buttons that say “I have read and agree” or even “I agree”? Why or why not?
HCI/usability questions (empirical)
- Do consumers read EULAs? Why or why not?
- Does the answer change for sites depending on their function? For example, do consumers read the TOU on sites where the consumers contribute content (Instagram, etc.)? (See Fiesler, Lampe and Bruckman 2016).
- Do consumers understand the provisions of EULAs? Why or why not?
- Do consumers care about provisions that appear in EULAs? If so, which ones? Why or why not?
- Do they consider provisions that appear in EULAs to be fair or unfair?
- Does consumer knowledge about provisions in EULAs change the likelihood they will accept EULAs or use the products with which they are associated?
- “What are people’s intuitions about what they are agreeing to, and how well do those intuitions match the reality?” (Fiesler, Lampe and Bruckman 2016).
- How does variation in terms across websites affect consumer understanding? Do consumers recognize or anticipate that variation? (Fiesler, Lampe and Bruckman 2016).
HCI/usability projects (design/empirical)
- Can we design an interface for EULAs that communicates terms that consumers would find important in a way that will be meaningful for consumers without compromising legitimate concerns of producers?
- Is Creative Commons a model for having common contract terms in EULAs that would communicate better to consumers?
- Is there a better way to present comparative data about producer EULAs than what is available at Clickwrapped.com, tosdr.org (Terms of Service; Didn’t Read), and TOSBack?
Meta-questions (about REUL Lab)
- Should REUL Lab’s efforts extend to privacy policies, which have a different legal status?
- To what extent can undergraduate student involvement in an effort like REUL Lab provide opportunities for research experience? To what extent can it enhance students’ learning and the quality of their experience in the class?
- To what extent can the REUL Lab be a model for other technical communication courses?
- To what extent can the REUL Lab model address concerns about the difficulty of conducting humanities research in the undergraduate classroom?
- Should we reach out to Clickwrapped.com, tosdr.org (Terms of Service; Didn’t Read), and/or TOSBACK about partnering with them? Should we take over one or more of their initiatives? How could we reach out to EFF, TOSDR, Internet Society, Clickwrapped.com or others to coordinate efforts?
August 29, 2016. WhatsApp and Facebook data sharing: How to opt out of controversial new terms. Article by Andrew Griffin in the UK news outlet Independent. The article purports to show WhatsApp users how to opt out of WhatsApp’s data sharing of user information with its parent company, Facebook.
July 13, 2016: ‘Pokémon Go’ Creator Closes Privacy Hole But Still Collects User Data. Article by Nathan Olivarez-Giles at the Wall Street Journal. The story reports on a ‘fix’ by Pokemon Go publisher Niantic to the Pokemon Go mobile app in iPhones. Previous versions of the app permitted Niantic full access to consumers’ Google accounts; any app with such access can “see and modify nearly all information in your Google Account,” according to the article. Niantic claims it never used the broader information. Why did consumers agree to this access in the first place? According to Olivarez-Giles, “After logging into the app with your Google account, you would see a lengthy terms of service agreement (the exact sort most users never read), check a box about Pokémon promotional email, and then start playing.” In other words, the extent of the access given was effectively concealed in a sea of legal terms; the tree was not visible for the forest.