In our daily lives we’re constantly confronted with pages of small print and someone who says “sign this.” Then another page and they say sign that – multiple pages of small print that you’re supposed to read, understand and agree to if you’re still awake. We have to deal with all that small print, filled with misleading language, in the course of completing everyday tasks. That small, frustrating, nearly unreadable text is intentional.
I actually knew the woman who wrote the HIPPAA statute (the Health Insurance Portability and Accountability Act of 1996), intended to make it possible for us to know and make intelligent decisions at least about the about the privacy rights we are signing away. But I don’t think what we’re asked to sign is anything like what she intended.
And if you actually read HIPPAA compliant language, I dare you to understand it. Oh, it’s written in little ordinary words but that’s a lawyer’s trick to lull you to sleep. Every one of those words is steeped in ambiguity that only another lawyer could understand and even they barely guess at the reach of those seemingly ordinary words.
I used to put some of the consent forms we’re expected to sign in front of my law students. You could be signing away your spouse and your farm and you’d never know it.
And then the clerk behind the desk says sign here. No coercion of course – coercion isn’t allowed – it’s just that you can’t have what you came for unless you sign.
And then whoever is asking us to sign puts a digital device in front of us that doesn’t have words on it – it’s completely blank. But judges have approved so-called clickwrap where you press a button on your computer without any written evidence of what you are agreeing to – just that they’re so-called “terms” required by the other party. Judges also approved so-called shrink-wrap where the terms are inside the package but once you open the wrapping you’ve bought the product and agreed to the terms. While you’re waiting for the latest Supreme Court decision, think about how the courts twist every kind of legislation so that it protects everybody but us ordinary folk.
I showed up at a bank which was supposed to issue me a mortgage but they resisted showing me the terms I was supposedly agreeing to. Didn’t mail it to me as the law required. Didn’t put it in my agent’s hands before I had to sign on as they promised. Biggest contract I’d ever made and they wouldn’t show me the terms. I knew their lawyer and called him. He understood my concerns but everyone read me the riot act – what are you doing coming from New York and trying to change the way we do things in our state?
Funny thing but lawyers often let personal things slide – I was so angry I didn’t want to think about it and our furniture was already being moved into the house. I could have contacted the Feds and made a real stink. But I didn’t. It’s kind of a game of legal chicken. Touch me and they’ll find out what I can do to them. Complain about them and I’ll find out what they can do to me.
Courts are supposed to police what we lawyers call contracts of adhesion but they don’t. The courts have sold out to business, politics, big shots, and I don’t have to tell you how they’ve sold out to Presidents. Someday their judicial chickens will come home to roost and I’ll be cheering or helping. Meanwhile I’ve lost my respect for the judiciary.
A friend just emailed with praise for calling out the Roberts Court years ago. But it’s the Roberts Court that’s responsible for the autocratic power of the Trump Administration as well as the autocratic power of large businesses. Everybody is too big to fail, except us. The courts could protect us but, like everybody else, they don’t think they have any obligation to see justice done.
Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Unfit for Democracy: The Roberts Court and the Breakdown of American Politics. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.
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