BIBLIOGRAFÍA

This project takes on the issues of SFCCs with a new methodology to see if it can add to the discussion and consider solutions that have yet to be explored sufficiently. Most discussions have remained within the contract law theory community who have ventured into collaborations with other disciplines such as economics, behavioral science, and psychology; this project suggests that at least part of the problem with these contracts is documentary or textual and thus the disciplines and research that studies those objects most rigorously should be considered.

Moreover, this project suggests that by understanding these agreements through the lens of theories that have spoken to the nature and engagement with documents, medium, and

interpretation, new adherent-focused ways of approaching these issues may be had; however, this implies a somewhat controversial shift in contract doctrine for this one type of contract. It makes the case the SFCCs sacrifice certain tenets of contract formation, and therefore do not deserve absolute freedom of contract, which requires a regulatory safeguard for the less powerful party of the contract (i.e., the consumer). It proposes that the site of this regulatory safeguard be the document form of the SFCC so as to allow for freedom to remain in the writing of the terms of the content of the contract.

The other contribution that this project makes is to the field of Information Studies.

Similar to the results of the document studies that preceded this project (e.g., McKenzie, 1986;

Hull, 2013; Day, 2014), by placing the discussion of these contracts from the legal community into conversation with the theories that attempt to understand documents, this study can also highlight how users engage with documents and technology more broadly and provide an illuminating case study into how the material performance of a document, when misunderstood, can profoundly exacerbate power differences such as those between consumers and companies.

It combines theories of materiality and rhetoric and offers a study of demateriality, or the prrojection of a lack of a document’s materiality to some end. SFCCs provide an illuminating example for a case study of this theory, but it could also be more widely applied to a larger range of digital documents.

At worst, our reliance on the free market capitalist system, particularly in the last three decades with the rapid development of technology, has allowed us to overlook the very mechanism that affords legality to the web of data collection, advertising models, and social platforms that now profoundly shape our lives (Tufecki, 2015, 2017). One might call this a type of networked surveillance that is occurring both governmentally and with the activities of corporate entities, which is made legal by these digital contracts that guarantee these rights. To hypothesize about the zombie contract apocalypse further as a thought experiment, one might consider what would happen if the predictive, quantitative methods that are about to be given authority in the new Draft end up being combined with smart contracts that automate

transactions with behind-the-scenes algorithms (Cornelius, 2018). Qualitative analysis that had been the basis of law previously would all but be forgotten, and human judgment superseded by algorithms that possess a limited understanding of the human condition. Relying on precedent

does not guarantee the fairest outcome, especially with profoundly disruptive and transformative new technological innovations. Combined with the other aspects of the Draft that seem to favor the interests of business over consumers, which might push precedent further in that direction in the coming years, these predictive algorithms could leave consumers no room for recourse or perhaps even a basic understanding of what is happening. And lastly, if the Draft’s promotion of more lenient, more ‘convenient’ standards of assent become more prominent, any form of engagement with a service might legally count as agreement to its SFCC, and the user could be subject to the terms of a commercial transaction where they themselves are the product of the bargain without any awareness at all of the existence of the contract or transaction.

In lieu of consideration, which is a classic fundamental characteristic of contract

formation, adherents need a trustworthy, multifaceted solution to ensure they can trust the terms of the bargain that these contracts memorialize. The three-part solution that makes up the

‘document-engineered approach’ I propose sacrifices some of the freedom contracts are

generally afforded; yet I argue that this sacrifice has already been made for adherents by current SFCC governance and that the full effects of this sacrifice are far from being realized. The current state of this issue provides drafters with the ability to pick and choose the aspects of contract doctrine that serve them (e.g., presentation of terms, mechanisms of assent) without the effort to satisfy those that do not (e.g., consideration). More gently, the proposed solutions may be viewed as rectifying some of the non-traditional contractual aspects of SFCCs while still providing drafters or corporate entities the affordance of streamlined contract making. Moreover, none of the solutions proposed are costly (except in possibly reducing the egregious corporate practices that are profitable), but simply provide more power to groups that have interests in mind other than business. Of course, users may never know or understand these systems that

affect their lives in a profound manner, nor the terms of the contracts that govern these spaces, but wouldn’t you rather know that the keys in your pocket do not scratch the screen of your iPhone anyway?¹⁰

10 This is a reference to Omri Ben-Shahar’s (2014) quote in “More than you wanted to know: The Failure of

Mandated Disclosure” where he assumes users would rather know the features of a product such as the ability for an iPhone screen to not be scratched by keys rather than a piece of salient information in a SFCC such as the

jurisdiction of the contract to which they agree. I would argue that this statement is very context-dependent and