Show Your Work: Taking on Terms of Service

Donna Trump

Okay, I'm going to read you a phrase from Ryan's proposal, and I want you to feel it. "At any time." "Without notice." At any time! Without notice! Four words that say the company wins, the company always wins, and the customer finds out later, if the customer finds out at all.

Jesse

Those four words are doing a lot of heavy lifting. Most people sign up for something, click the box, and never look at the terms again. Ryan's point is that the company gets to keep a power over you forever, and you never even get a letter when they use it.

Donna Trump

And he's not saying take the power away. That's what I like. He says it plainly. Businesses keep the ability to suspend, businesses keep the ability to terminate, when there's a valid reason. Valid reason, fine. But when you use the power, you show your work. You use the power, you show your work.

Jesse

Right. The line I keep coming back to is the difference between two sentences. One is, "The contract gives us the ability to terminate the service." The other is, "We exercised that authority against you, and here is documented notice explaining what we did, why we did it, and how you can challenge it." The first sentence is a shrug. The second one is a person standing in front of you.

Donna Trump

A person standing in front of you! That's accountability. And this connects to what we did with Ryan's housing authority letter, the phased notices, the plain English, the copies to advocates. Same philosophy. Landlord, tenant, then company, customer. Give people a runway, give people the reason, give people a way to fight back.

Jesse

Same philosophy, new landlord. Instead of an agency dropping a penalty on you from nowhere, it's a platform dropping a lockout on you from nowhere. And here's what's worth saying: the proposal doesn't say whether Ryan wrote it because something happened to him. No account ban mentioned, no price hike, no story. It reads like a memo written from principle.

Donna Trump

Which means it's cleaner. No grudge, just structure. And I like structure. Let's go through the structure, because it's a good one.

Jesse

Start with the notice. A separate, clearly identifiable notice when an account is terminated or materially suspended. It says the service was terminated or suspended, the effective date and time, the reason, what happens to prepaid money, your right to appeal, and how to reach someone. A general provision buried in the terms should not count as notice.

Donna Trump

Not buried! Not hidden! Not on page forty! Then comes the best part, in my opinion, the acknowledgment. The company must keep proof it delivered the notice. And you get to acknowledge you received it. But, and this matters, acknowledging means only that you received it. Not that you agree. Received, not agreed!

Jesse

That's a smart carve out, because otherwise every click becomes a confession. And if you don't acknowledge, the company can still use another legally recognized delivery method and keep records that they made reasonable efforts. So it's not a trap for the company either. It's a paper trail, nothing more.

Donna Trump

Paper trails win. Then the reason. "You violated our Terms of Service" is not a reason. That's a fortune cookie. Ryan says if the business can reasonably identify the particular provision or conduct, tell the person. And he allows exceptions for security, fraud prevention, legal risk. But the exceptions can't become the routine excuse. Don't let the exception eat the rule.

Jesse

Plain phrase for it: if there's a real reason, say it. Then the appeal. A reasonable window to file, a simple way to file, confirmation it was received, review by someone other than the original decision maker whenever reasonably possible, a deadline for the company to answer, a written decision, and a remedy if they got it wrong. Restore the service, credit, refund.

Donna Trump

A different reviewer! Not the same person grading their own homework. And he adds that nobody should have to go hunting through terms and customer service pages just to find out whether an appeal exists. If the door exists, put a sign on it.

Jesse

Now, the part I want to be careful about, because the research ties in here. Ryan's proposal is a proposal. It isn't law. But courts have been circling the edges of this problem, specifically the change the terms at any time without notice clause.

Donna Trump

Give me the headline. Give me the win.

Jesse

August 8, 2024, the federal district court in the Eastern District of Virginia, Lovinfosse versus Lowe's Home Centers. A customer bought a washing machine online and also a water hose labeled "Required for Use." She later found the machine came with everything it needed, and she sued as a class action alleging deceptive practices. Lowe's wanted arbitration under its terms. The court said, yes, she had constructive notice of the terms, she moved forward with the order. But Lowe's terms said it could change them at any time and without notice, and the court held that made the arbitration clause illusory and unenforceable.

Donna Trump

Illusory! The promise was a magic trick! The company said you're bound, but I can change the deal whenever I want, and the court said, that's not a deal, that's a mirage. And it echoes Harris versus Blockbuster, Northern District of Texas, 2009. Same idea. Same result.

Jesse

Worth saying the law hasn't moved in a straight line. Rodriguez versus Instagram in 2014 upheld a modification where Instagram actually gave reasonable advance notice by email. Sifuentes versus Dropbox went the other way, because Dropbox couldn't show the plaintiff had read the email. So notice matters, and how you prove it matters. Which is basically Ryan's documentation pillar.

Donna Trump

Proof, proof, proof! And there's more. The Ninth Circuit in Douglas versus U.S. District Court, 2007, a phone provider posted new terms on its website, including new charges, and never told customers. The customer was on automatic billing, no reason to visit the site. The court said parties have no obligation to check the terms periodically. Rodman versus Safeway, 2015, same thing. You don't owe the company a daily visit.

Jesse

And that's the fact versus interpretation line. Those cases are about whether changed terms bind you. They aren't about termination notices or appeals desks, which is the bigger ask in Ryan's memo. His idea is the natural next step, but it's his interpretation of what fairness should look like. He also doesn't name a target, whether that's a regulator, a state bill, or a model law. So the destination is open.

Donna Trump

Open, but the map is clear. His matrix. Business power gets consumer notice. Termination gets an explanation. Suspension gets an appeal. Material contract change gets advance notice. Terminating prepaid service gets a refund or remedy. Exercising authority gets documentation. Power, paper, power, paper!

Jesse

And prepaid is the one that hits home plainly. If you've paid through a future date and they cut you off early, they owe you an explanation of what happens to the unused portion, and where appropriate a refund, credit, or restoration. You paid for the whole stretch of road. You don't get dumped at the first exit.

Donna Trump

And emergencies? He keeps them. Fraud, security threats, unlawful conduct, act right now. Just explain afterward and open the appeal door once things are stable. Strong on safety, strong on fairness. That's how you win the argument, because nobody can say he's asking for the impossible.

Jesse

That's the thing. It's not anti business. He says it in his own closing: when a business exercises substantial contractual power, the consumer should have a meaningful opportunity to know what happened, understand why it happened, and challenge the decision. Know it, understand it, challenge it. That's not a revolution. That's a receipt.

Donna Trump

A receipt! Everybody gets a receipt! Ryan wrote a very good memo, folks. A very good memo.