While the rapid digitalization of the world eases many aspects of human life, this unparalleled convenience may also be responsible for an incidental, widespread and potentially dangerous complacency. The increasing ubiquity of software comes with a rise in the need for personal privacy and preservation of personal data and companies will accordingly attempt to keep pace with this situation. However, the means by which they do this can at times be problematic, particularly in cases involving the implementation of legal documents like privacy statements and end user license agreements.
Imagine a typical business exchange at a grocery store, where customers were asked by the owner to sign a lengthy document before they were permitted to use their items, even after the point of purchase. As absurd a situation as this is, it is a standard practice in the acquisition and use of software. Why does this contractual distinction exist? Why do we view these two exchanges as so disparate when practically, there is fundamentally little to no difference between purchasing an ordinary set of pens or a word processing software.
Who bears the main responsibility?
There is often discussion about the importance of carefully handling sensitive user data. Organisations face scrutiny for perceived poor cybersecurity policies, particularly in cases where user data may have been leaked, sold to third parties, or accessed by unauthorised agents. However, we believe that not enough of this discussion examines one of the most straightforward and legal ways user information can be accessed: via digital agreements. Digital agreements provide the means for users to directly grant software publishers access not only to their sensitive data, but to use of their devices themselves. This creates an environment ripe for potential exploitation of users by software publishers, through implementation of conditions cynically designed to benefit the latter at a cost to the former.
Of course, users can simply not agree to digital agreements with harmful clauses. However, the vast majority are not even cognisant of any conditions of a digital agreement they have consented to. A minimal proportion of users even attempt to read digital agreements, and for those that do, many are incapable of comprehending it in its entirety. Consider the fact that a 2008 study estimated the typical American internet user would require a time investment of 244 hours per year to read the privacy policies of all websites they visit (Schaub, 2017). Therefore, we believe it would be specious to attribute responsibility entirely to the users.
It is no secret that most users exhibit what could be described as an indifference to reading digital agreements, irrespective of their specific form, length or complexity. This phenomenon has been the subject of satire on numerous occasions, such as in an episode of the popular television show South Park (Season 15, Episode 01, 2011), where the characters’ consistent failure to read Apple’s Terms and Conditions, and the subsequent consequences of such, were the recurring joke of the episode.
Specific types of digital agreements certainly possess their own set of unique characteristics that are responsible for users’ failure to read them. However, we believe there is evidence of a broader apathy towards digital agreements of all types. Initially, this research began with a sole focus on how users interact with EULAs (End User License Agreements), but the behavioural patterns demonstrated by users in the context of all digital contracts - EULAs, cookie policies and privacy agreements - shared numerous similarities. For this reason, the umbrella concept of ‘digital agreements’ became the primary focus of this article, operationalized in order to broaden the breadth of analysis and examine possible causes.
End user license agreements
An EULA is a legal contract between a software application author or publisher and the user of that application. The primary purpose of an EULA is to legally protect publishers if their software is misused, which is done by relaying conditions to the user in the form of an electronic agreement. EULAs are a very common form of digital agreement found in many instances of proprietary software, whether in public Wi-Fi networks or Terms of Services of big companies.
EULAs are particularly notorious examples of the issues with digital agreements, possessing numerous characteristics responsible for inhibiting user readability. They are typically too long and esoteric for many users to even attempt to read, which is only exacerbated by their frequency as a consequence of the increasing quantity of software in today’s world. In addition to their length and complexity, they are often presented in uninteresting, if not entirely unattractive ways: usually long sprawling black and white blocks of text with little to delineate between paragraphs and minimal attempts at formatting or other characteristics that provide ease of comprehension. Numerous studies have demonstrated that some EULAs are in fact beyond the intellectual capabilities of many readers. Researchers found that Google’s updated terms of service in 2013 were not comprehensible by 43% of the adult population (Hood, 2013).
An HTTP cookie refers to a small piece of data stored on the user’s browser by whatever website is being accessed. Cookies are essential for the modern operability of websites, and are responsible for storing user information and preferences which in turn enables important functionality like shopping carts and user logins.
Cookie policies are significantly shorter than EULAs and are usually composed of much simpler language. However, much like EULAs, cookie policies are rarely something that the average user even considers to read. As such, cookie policies do little to inform users precisely how their data is being stored, where, and for what purposes. Similar to EULAs, organisations are granted the potential to exploit a high proportion of users who won’t understand how their cookies are being tracked, primarily through either utilising data gained from them, or selling such data off to third parties.
The contradiction of users' indifference towards reading digital agreements is demonstrative of a widespread phenomenon we call Intentional Illiteracy, where users generally see these agreements as more of a formality than the binding legal contract they actually are. But can we in fact consider these agreements solely as ‘legal documents’ or even broadly, literary artefacts? To begin with the debate of intentional illiteracy, we should first define literacy in the digital era. Accepting literacy only as ‘reading and writing’ would not fit this context, since it also embodies certain processes beyond this simple relation with a text. It should definitely be kept in mind that literacy skills incorporate identification, interpretation and communication as well as the principal basics of reading, writing and understanding (UNESCO, n.d.). Since this article tries to measure a certain type of (il)literacy, we also have to emphasize our unit of analysis in terms of an operationalized concept of digital agreements.
Digital agreements cannot be the main focus on their own; the focus should be the interaction with them within the broader social context
At this point, it would be beneficial to use one of the fundamental points of departure in sociolinguistic research as it defined in Blommaert’s framework. Blommaert argues that the unit of analysis cannot be the 'language' in an abstract sense. Rather, the focus should be on variations of language, "for such variation is at the core of what makes language and meaning social" (Blommaert, 2005, p. 15).
As we focus on the human interaction within digital agreements, we should also keep in mind that they are actually very recent technologies when we consider them from a broader historical perspective. As is pointed out by McLuhan (1962, p. 153), “every technology contrived and outered by man has the power to numb human awareness during the period of its first interiorization.” But of course, we cannot argue that it is merely a ‘numbness’ when analysing this behaviour of neglecting legal documents. It should be emphasized that this neglecting behaviour cannot be reduced to people’s personal choices in a subjective manner. In order to explain this ‘numb’ behaviour, we shall keep in mind that this is a phenomenon that is embedded in the action of neglect itself.
The consequences of new 'electric' technologies. according to McLuhan (1962, p. 30), "has consequences for our most ordinary perceptions and habits of action." These consequences do not occur in our critical minds, but in the practices of our ordinary lives. It is clear then, the focus should be on the interaction between agency and structure, rather than blaming individuals for neglecting these documents as they are. Of course, it might be seen as a paradoxical relation since “the habitus is constituted in practice and always oriented toward practical functions” (Bourdieu, 1992, p. 52).
But since we use the interaction as our unit of analysis, we can conclude that the form of these documents is also involved (and moreover, very significant) in shaping human behaviour against them. Because, in the end, there is the concrete fact that you cannot make any changes to these documents. You have to inevitably accept them as they are in order to reach the service you requested or product you already paid for, standing in your way like a monolith.
“The most improbable practices are therefore excluded, as unthinkable, by a kind of immediate submission to order that inclines agents to make a virtue of necessity, that is, to refuse what is anyway denied and to will the inevitable” (Bourdieu, 1992, p. 54)
As the technological world continues to advance and develop, so does the responsibility of those who regulate it to protect consumers from potentially harmful consequences. Evidently, this is not a responsibility that is currently being met, and one that will only be exacerbated without intervention. By most realistic estimates, the world will only continue to digitise, and thus the presence of digital agreements will continue to grow. The limit of what skilled software engineers are capable of extracting from or doing to one’s device is difficult to quantify, which is concerning considering EULAs grant them direct and legal access protected by an agreement that the user has consented to, knowingly or not.
The issue of ‘intentional illiteracy’ discussed in this paper is, in the opinion of the authors, one of the most pertinent and widespread digital literacy issues of modern times. While this problem has not resulted in particularly devastating consequences thus far, the potential certainly exists and should be nullified before getting too out of control. What exactly such intervention would look like is not totally clear, and likely will require collaboration between many different parties and legal systems. But there is certain need for a structural and comprehensive change rather than minor adjustments and reforms, which ultimately overcome the issue of digital agreements and touches upon the fundamentals of intellectual property.
Blommaert, J. (2005). Discourse: a Critical Introduction. Cambridge: Cambridge University Press.
Bourdieu, P. (1992). The Logic of Practice. (R. Nice, Trans.) California: Stanford University Press.
Hood, L. (2013, 10 17). Google's terms and conditions are less readable than Beowulf. Retrieved 04 03, 2019, from The Conversation
McLuhan, M. (1962). The Gutenberg Galaxy. Toronto: University of Toronto Press.
Parker, T. (Director). (2011). South Park [Television Show].
Schaub, F. (2017, October 20). Nobody reads privacy policies – here’s how to fix that . Retrieved June 18, 2019, from The Conversation
UNESCO. (n.d.). Literacy. Retrieved June 17, 2019, from Unesco