How Not to Obtain Online Consent, or Why Panera Bread Owes Me Free Muffins
When I need to edit an article, I will sometimes park myself at a booth at the local Panera Bread, sipping the decent coffee, snacking on the beautiful (notice I didn’t say tasty) pastries, and using the free WiFi. Long ago, I noticed that Panera had made a stupid technological mistake that probably strips it of the right to manage its network lawfully.
Panera tries to extract consent from its users using what is known as a captive portal, the same method used by most hotel and airport WiFi network providers. When a Panera WiFi user first tries to connect to any website, Panera’s computers redirect her instead to its own web page with a link to its terms of service (ToS). Only when the user clicks “I agree” may she start surfing.
But if Panera ever tried to enforce its WiFi ToS–say it got caught monitoring user communications and had to defend against a wiretapping lawsuit or say it was sued for banning a user suspected of downloading porn in violation of the ToS–a court should probably hold that its ToS are unenforceable. Panera has made a simple web design mistake that introduces doubt about what terms are being agreed to by its users.
Like many sites, Panera displays the ToS within a text box. It probably does this to save screen real estate: with a text box, it can allow the user to scroll through a smallish-square rather than be faced with a dauntingly long web page. But carelessly, Panera made its text box EDITABLE! To see what I mean, compare the two text boxes below:
At the very least, Panera will have a hard time proving to a court that a particular customer didn’t delete all of the ToS before clicking “I agree.” But, there is a crazier possibility: Every time I am faced with Panera’s editable ToS, I delete all of the text and replace it with a proposed contract of my own. Here are some of the contracts I have proposed:
- “By allowing me to surf the web using your network, you agree to give me one free muffin every day for the rest of my life.”
- “By allowing me to surf the web using your network, you agree to name me CEO of Panera Bread for a day. I choose next Tuesday.”
- “By allowing me to surf the web using your network, you agree to change the name of your company to Pantera Bread, and the name of your ‘Frontega Chicken’ sandwich to ‘Cowboys from Hell’ Sandwich.’”
I know enough about the http protocol and cgi-bin to know that my modified ToSes probably get transmitted back to a Panera, er, Pantera web server. Are my contracts enforceable? Probably not. But my arguments for enforceability sound no less ridiculous than some of the arguments made by those seeking to enforce click-wrap and buried ToS “contracts”.
Excuse me while I go try to claim a free muffin.