775-225-4422
Jerry Snyder Law | Serving Reno & Midtown
  • Legal Services
  • About Jerry
  • Sensible Solutions
  • Contact
  • Legal Services
  • About Jerry
  • Sensible Solutions
  • Contact

Fake Privacy Notices and the Assumption of Legal Mystery

10/3/2015

Comments

 
Picture
I don’t care how smart your friends are; some of them just posted a fake “Privacy Notice” that purports to protect your data from the prying eyes of Zuckerberg’s Bot Army. The notice reads something like this:  

"Better safe than sorry ... Channel 11 News was just talking about this change in Facebook's privacy policy. As of September 30st at 03:50 p.m. Western standard time, I do not give Facebook or any entities associated with Facebook permission to use my pictures, information, or posts, both past and future. By this statement, I give notice to Facebook it is strictly forbidden to disclose, copy, distribute, or take any other action against me based on this profile and/or its contents. The content of this profile is private and confidential information. The violation of privacy can be punished by law (UCC § 1-308- 1 1 308-103 and the Rome Statute)."

 This is pure codswallop. I’ll explain why, but its going to take a while to come to my point, so let me preview where I’m heading: the fake privacy notice is an example of people using legal sounding jargon to make something absurd sound believable. What bothers me about this fake privacy notice is that it creates an aura of credibility by exploiting the reader’s assumption that he or she will not be able to understand legal language. That assumption is inconsistent with living in a democratic society.

So why do I say this post is nonsense? First, you agreed to Facebook’s Terms and Conditions when you created your account. You agreed that Facebook might change these terms, and that as long as you kept your account open, you would be OK with these changes. You can’t decide now to change Facebook’s obligations to you by making a post telling them that you don’t like the way Facebook might handle your information. If you don’t like Facebook’s terms, you have a pretty simple way to get out of the agreement: delete your account. 

Second, the “law” that the fake privacy notice cites has absolutely nothing to do with intellectual property, privacy, or social media. The Uniform Commercial Code is a set of statutes that most states have adopted that govern various types of business transactions. UCC §1-308 provides that:

 (a) A party that with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as "without prejudice," "under protest," or the like are sufficient.

(b) Subsection (a) does not apply to an accord and satisfaction.

This statute boils down to this: if you are contesting whether you really owe someone money, but for any reason you want to pay them now and fight about it later, there is a way to pay them without admitting that you should. This statute has nothing to do with privacy or intellectual property.

The fake privacy notice goes on to cite to UCC §1 308-103. As best I can tell, there simply is no such statute.

The citation to the Rome Statute is even more bizarre. The Rome Statute is a 1998 treaty that created a permanent International Criminal Court for the prosecution of war crimes. I don’t care how much you drank last Friday, that duck face selfie you took in the bar and posted on Facebook is a crime against taste, not humanity. The International Criminal Court is not going to prosecute Facebook for using information collected from your posts.

To sum up, the legal authority that the fake privacy notice cites would be like a lawyer telling a jury not to convict a murderer because he is clean-shaven and enjoys roast beef sandwiches with smoked gouda; the premise of the argument has no connection with the conclusion.

So why does this keep getting shared? Two reasons: First, people have a kind of vague, general anxiety about privacy in a digital world, and as such they are willing to be less than skeptical when offered what looks like an easy way to protect that privacy. Second, the fake privacy notice is written with certain markers of credibility. The first of these is the reference to “Channel 11 News.” If it is on the news, it must be true. The second marker of credibility, and the one that interests me, is that the post uses legal jargon to sound credible. As I discussed, a simple Internet search of “Rome Statute,” and UCC §1-308 would be plenty to show anyone who can read at a high-school level that these laws have nothing to do with privacy, the Internet, or intellectual property. However, I suspect that many people make the assumption that they will not be able to understand the legal language, so they make no attempt to do so. By merely invoking the specter of legal jargon, the fake privacy notice tells the reader that he or she should simply believe in the power of the language contained therein for reasons the reader would not be able to decipher. Thus, the mere fact that legal sounding references are included is enough to create an illusion of credibility based on an implicit assumption that law cannot be understood.

That’s the heart of what bothers me about the fake privacy notice: it shows just how much we are willing to assume that the meaning of law is hidden by the language of law. I’m not saying that legal jargon isn’t ever needed, I’m not saying that law is always easily understood, and I am certainly not saying that you shouldn’t hire a lawyer to help you understand your legal obligations. What I am saying is that a democracy depends on the willingness of citizens to at least take a run at understanding the laws that are enacted in their name.

So the next time someone circulates a Facebook post citing legal authority, Google the citation and read the authority before you pass it on. For democracy.

Comments

Why won't my lawyer speak English?

8/19/2015

Comments

 
Midtown Reno Law Firm
Lawyers often hear complaints about the unreadability of the language used in legal documents. Most lawyers are well aware that the public regards “legalese” with roughly equal parts contempt and distrust; why make a sentence inscrutable unless the lawyer is trying to hide something?

So if lawyers know that the documents they write are difficult to read, why don’t they just write them in simple, readable language? The short answer is something your English teacher probably told you: easy reading is damned hard writing. However, it is often worth the additional effort to make contracts understandable by non-lawyers.  
 
Communication is Hard
So why is it so difficult to draft a contract in plain, understandable language? The concept underlying the contract is deceptively simple; a contract is a set of mutual promises that a court will, to some extent, enforce. However, the implication of this simple idea is far-reaching. By giving the promises people make to each other in certain circumstances legal force, we are saying that individuals get to create the legal rules that apply to their relationships. As such, the ability to contract is nothing less than the ability to make the law that will apply to a particular relationship. That’s right. In a very real sense, when you enter into a contract with a vendor or a customer, the two of you are writing the law that controls your relationship.

Since the purpose of drafting a contract is to write down the promises that a court may enforce, the goal of writing contractual language is to find language that the parties to the contract, and ultimately a judge or arbitrator, will understand in exactly the same way. Many contractual disputes arise not when one of the parties is trying to act unfairly, but rather when the parties have a genuine and good faith disagreement about what they agreed to. For that reason, a contract needs to express the promises made in a way that can be interpreted by a number of different people in only one way.

One way to write contracts without ambiguity is to use the kind of language that has been traditionally used. Much of the legal jargon used in contracts has developed a specific meaning, through generations of use by lawyers and interpretation by courts, that lawyers and judges understand. It is often easier to use these time-tested terms than it is to try to capture the concepts they represent in more understandable language.

Legal jargon also allows lawyers to use a kind of shorthand. For instance, a farmer supplying a restaurant with produce may want to limit his liability to that restaurant to the amount paid for the produce. Rather than have a contract terms explaining that, in case the farmer fails to deliver suitable produce, he is not liable for any of the restaurant lost profits, damage to reputation, or other enumerated harms, the contract can simply state that the farmer will not be liable for any “consequential damages.” While the farmer and the restaurant may not understand the full implications of that terms, the lawyers and judges likely will.       

Your Momma Probably Told You That Anything Worth Doing Would Be Hard
The fact that it may take more time for your lawyer to write a contract in plain language, that both you and your customers can understand, doesn’t mean that you shouldn’t do it. In most circumstances, it is worth the effort to make a contract completely understandable to the parties.

First, clear communication builds trust. Your customers would rather sign an agreement that they do understand than one that they do not understand. Handing a new customer ten pages of fine print can send a signal that your goal is not to provide a valuable service, but to protect yourself. In contrast, if the agreement is written in such a way as to continue the friendly and direct tone that has been used during previous discussions, then the written contract can serve to strengthen the client’s perception of you as a straight shooter.      

Second, a readable contract can prevent expensive and time consuming litigation. I have been litigating contract disputes since Ally McBeal was on the air. I am pretty convinced that a sizable portion of these disputes could have been resolved, before the parties spent tens of thousands of dollars on attorneys fees, if the parties had understood the terms of their contract.

Third, in some circumstances — particularly cases in which one party is substantially more sophisticated than the other (such as agreements between large corporations and consumers or small businesses) —courts may refuse to enforce language that would be difficult for the consumer to understand.          

My advice to small businesses is to approach the agreement with the customer or a vendor as an opportunity to (1) avoid future litigation by stating the terms of the agreement in understandable language, and (2) strengthen the relationship by presenting a legal document that reflects the open and direct spirit in which discussions have taken place. I very much encourage entrepreneurs to find a lawyer who will work with you to make your form contracts clear, understandable, and still legally enforceable.

Comments
    Picture

    Legal Topics

    All
    Business Contracts
    Hoaxes
    Jerry Snyder
    Law Firm
    Legalese
    Midtown Reno

    RSS Feed

Jerry Snyder 
Law in Midtown Reno

What Our Clients Are Saying

"Jerry had every opportunity to jump into the courtroom, but instead he opted for a calmer, more effective approach. That really impressed me, as well as the other attorneys involved. Thank you, Jerry, for building a solid foundation for a lifelong client-attorney relationship." --Angela, Reno, NV

Subscribe:

Subscribe
Reno Web Design