If you write software to control medical equipment in Brainfuck, it's potentially of consequence to a great many people. Same for autonomous driving routines.
Trying to make things clearer is a good cause. Expecting that everything can be made clear enough for the average person is a fool's errand.
Do we expect the circuit layouts of CPUs to be understandable by everyone? Because we are surely affected by those, in very many aspects of our lives.
Do we expect the full engineering and aeronautics behind an airplane to be understood by everyone? Everyone who flies puts their lives on the line based on those principles and the engineers getting it right.
Do we all expect to understand the numerous ways in which our bodies can get hurt, or interact with chemicals, or develop diseases? We trust doctors to figure out the complications there.
In each case, we've trusted domain experts to sort through the very complex topic and distill the knowledge into a useful form for us. In each case, we also generally know a core amount of the topic to help us navigate the everyday portions. CPUs work by providing a very low level core set of instructions that can be followed. Airplanes work through thrust, airflow and lift. Our bodies deteriorate over time, and if we put bad stuff in, they don't do as well, and some common diseases are known (cold, flu, etc).
The law is no different. There's a core set of things people are aware of. As things become more specific, or a problem happens, we call in domain experts to help.
Expecting everyone to be able to read all of the legal code will never happen, nor should it happen. It's expecting too much out of the average person, and would also require the law be dumbed down in ways that were detrimental to it's interpretation.
Using Brainfuck is an extreme example but you're taking it to its logical conclusion - off a cliff.
The difference is, the law affects and is applied to everyone. Contracts can and do affect the average person. However, only a domain expert has do deal in code.
We do not expect or require a normal person to read a 5,000 LOC piece of software, or risk giving up rights to participate in everyday society.
> Expecting everyone to be able to read all of the legal code will never happen, nor should it happen. It's expecting too much out of the average person, and would also require the law be dumbed down in ways that were detrimental to it's interpretation.
I'm certain we can put together a reasonable "tl;dr" requirement for contracts targeted at the layman, e.g.
"""
- You may use this application (See: Section A)
- You will pay X per month (See: Section B)
- Late fees may apply (See: Section B, Sub-Section 2)
- We may collect user data (See: Section C)
- We may sell user data (See: Section D)
- We reserve the right to update the terms of the service (See: Section E, Sub-Section 1)
- We reserve the right to cancel service for any reason (See: Section E, Sub-Section 2)
"""
Make the tl;dr non-binding so long as a reasonable person, a typical legal standard, would understand the legalese to have the outcome.
One need not write a "literate contact," nor abandon all of our legal history, terms of art, etc. to improve things to make them more approachable for a normal user.
I've found that this is generally less true than I imagine it to be. A lot of law is not actually so difficult to understand. Legalese is still English, and Google is great for figuring out the odd meanings of certain terms of art.
Most of the exceptions I've come across (e.g., buying a house) are IMO actually intrinsically complex transactions. I could undestand, but it'd take so long. And the time taken would happen even if we only had the laws we needed and all those laws were written in plain english. In software terms, lots of essential complexity.
Going back to the article, the problem with Facebook's terms and conditions is definitely not understandability -- see https://www.facebook.com/policy.php. The average high schooler could understand. The problem is people caring enough to 1) find, 2) read, and 3) inconviencance themselves if they don't like the policies.
> Waving a 2-inch-thick printed version of the social network’s user agreement, Senator Lindsey Graham quoted a line from the first page, then intoned: “I’m a lawyer, and I have no idea what that means.”
1) Two inch thick I've read some pretty long books in my time but that takes the cake. Most people these days don't even have enough attention span to read a complete internet article. How do you expect them to plough through hundreds of pages of legalese?
2) “I’m a lawyer, and I have no idea what that means.” Do I even need to say any more?
* FB is doing their absolute best to make sure no "user" understands what they have agreed to
* writing the law in "plain english" is the stupidest thing I've ever heard of in my life. See the multi million dollar lawsuit this year about whether a missing Oxford comma changed wage rules for a class of truck drivers. Any attempt to write law in plain english introduces giant ambiguities [1].
[1] https://www.nytimes.com/2018/02/09/us/oxford-comma-maine.htm...
But before making this argument, one should go read FB's ToS and data policy. Here they are:
Right here, clear as day: "We collect information from or about the computers, phones, or other devices where you install or access our Services, depending on the permissions you’ve granted"
Also notice that if they have that data, you explicitly gave permission to access phone/SMS data in the app install process; i.e., you granted those permissions.
> ...steal...
Again, that's the problem! Facebook didn't STEAL that data. They took it with your permission. And they were actually very clear in their policies about the fact that they could take pretty much anything you gave them device premissions to access.
This is NOT a "users can't understand legalese" issue. It's very clear from the above sentence in the data policy that Facebook has the right to record arbitrary shit off of your phone/computer.
This IS a "users don't care and don't have any data clawback rights" issue. Or perhaps a "users are too trusting" issue. But any high schooler could interpret the above sentence as meaning that Facebook does, technically, have the right to collect any information from your phone if you give device permissions.
The distinction is important because it determines appropriate solutions. The solution is NOT making ToS easier to read. The solution is stronger consumer data rights (aka a mechanism to clawback data after the fact) and better consumer education (aka be paranoid)
If you think that merely making ToS easier to read and understand will substantially change consumer behavior, you're in for lots of disappointment.
> and wasn't clear to virtually anyone who agreed to it
Virtually everyone who agreed to it never bothered to even try to read the policy in the first place. So, really, what difference does that make?
Again, the fundamental point is that chasing ToS clarity/readability/length is a losing battle. The majority of consumers don't care enough to read, no matter how simple you make things. Improving this metric won't make a difference. This issue is a red herring. Focus efforts elsewhere: consumer education and consumer rights.
Facebook data policy: https://www.facebook.com/policy.php
I agree Lindsay Graham is a skilled orator and politician. But if he blew up the font size until those pages required two inches of 8x11 paper, he must have just terrible eyesight ;-)
Also, neither of those documents is terribly difficult to understand. Like... where, specifically, is Graham getting horribly confused?! Point to the concrete line in one of those two links that requires something beyond a high school education!
Now, I'm sure there's nuance I don't pick up on. But I definitely feel I can understand the ToS and privacy policy without consulting a lawyer.
I don't think some of the terms are fair. But that's a consumer rights issue, not a "legalese" issue.
More generally, on two occasions I've had to get in front of a real judge in a "real" courtroom and make an argument based upon some written piece of law I had to look up and interpret myself. In both cases, I was able to successfully convince a judge that I was on the right side of the law without the help of a lawyer. I'm certainly not saying that's always possible, but I do believe there is a lot of "learned helplessness" when it comes to digging through legeal code or contracts and reading legalese. It's a PITA sometimes, but in many many cases it doesn't require years of training.
Or, to put emphasis on the important things:
"we may (read: WILL) collect ANY device information you give permissions to access to do [reasonable thing A], [reasonable thing B], or for ANY other business purposes. Examples of device information include: [insert list of benign things you should totally ignore]"
But here's the problem with the "AI tell us all" approach. If you use ML to mine examples from existing policy texts, you'll end up showing the user all of the benign stuff that the companies put in to reassure users, because that's what the corpus contains. Therefore, your AI will emphasize exactly the wrong types of examples.
Also, notice that this isn't even a legalese thing. There are no legal terms of art or long-winding difficult grammatical constructions. It's just plain old good rhetoric. And it's hard/impossible to legislate away persuasion.
The difference is that one is expected to consent and be beholden to something they could not reasonably understand without paying a large amount of money to a specialist.
That I write my code in brainfuck is of no consequence to someone, unless that brainfuck is potentially going to incarcerate them.