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New Book Examines Consumer Privacy Concerns Built-In to Ubiquitous Online Contracts

Professor Nancy S. Kim

In her new book, Wrap Contracts: Foundations and Ramifications (Oxford University Press, 2013), California Western School of Law Professor Nancy S. Kim explores non-traditional agreements that look nothing like legal documents. When an Internet user visits a website, checks email, or downloads music, they enter into a digital "wrap contract" that they probably don't know exists.

"Companies take advantage of the digital form of contracts to validate dubious business practices, such as the collection of personal information and the appropriation of user-created content, "says Kim. "By clicking 'I agree,' consumers give companies the right to collect and sell personal information, track online movement, and wrest control of creative works."

In her book, Kim explains how businesses and existing law unfairly burden consumers and create a coercive environment that forces users to "accept" in order to participate in modern life. Because they are digital, wrap contracts are weightless and cheap to reproduce. Given their low cost and flexible form, businesses engage in "contracting mania" where they use wrap contracts excessively and in a wide variety of contexts. The result is that consumers are subjected to onerous legalese for nearly every online interaction.

In Wrap Contracts, Kim proposes practical solutions—such as imposing a "duty to draft reasonably" which would require companies to draft agreements using icons, text boxes, and other visual prompts—that fairly balance the burden of wrap contracts between businesses and consumers.

In light of recent NSA revelations about government monitoring, Kim has weighed in on the issue of personal data collection within the private sector in articles published by the Sacramento Bee and Providence Journal. She contends that the government would not have had this information if companies like Google and Facebook were not collecting it—and consumers weren't forced to agree to their terms of use.