Preventing a Zombie Contract Apocalypse with a Document-Engineered Approach to Standard Form Consumer Contracts (SFCCs)
Standard form consumer contracts (SFCCs) between consumers and businesses are recognized as ‘standard form’ so as to increase the efficiency of transactions and save costs, which are ostensibly passed on to consumers. Since one party is generally less powerful in terms of access to information and resources, these contracts are often acknowledged as imbalanced. SFCCs in various forms (e.g., terms of terms of service agreements, data policies, copyright policies, acceptable use policies) have been implicated in the wrongdoing of many widely-used service platforms and thus have been at the center of concern for consumer rights in recent years. While some have characterized these issues as a lack of understanding by claiming adherents have a ‘duty to read,’ or as drafters’ responsibility for egregious terms and weak disclosures, this project suggests at least part of the issues exist from a lack of consideration of the document itself—and a performance (or de-performance) of its physical characteristics to some end in a digital environment. It suggests that standardizing aspects of the document form of SFCCs, rather than relying on notions of standard practice that work against user psychology, would have beneficial effects for consumers toward evening out the power imbalance. It makes use of the disciplines that specialize in these topics, including document theory, library and information science, diplomatics, standards of records management, textual criticism and bibliography, and evidence to offer a revised perspective on SFCC issues. Ultimately, it concludes that current governance is not adequate to address the issues of these agreements and suggests three principles, or shifts in concept, that reflect its findings: 1) standardization, not standard practice 2) explanation, not notification; and 3) documentation, not integration. Additionally, it provides a proposal to develop a new set of standards that would afford SFCCs the following characteristics: a) Classifiable/Organizable; b) Preservable/Scrapable; c) Trackable/Stable; d) Authentic/Reliable; e) Processable (machine-readable). This standard could not only help extract necessary information from these documents and produce an ‘informed minority hypothesis,’ but also help stabilize the document for evidentiary reasons (e.g., dispute and discovery, burden of proof) and work against unnoticed changes (from unilateral modification).