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Basically, for many websites, as well as basically all software one installs, the sign-up or installation process requires you check a checkbox or click a button saying "I accept XXX terms and conditions"/"I accept the licensing terms".

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Here is the account creation page from gmail as an example.

I'm curious how this can be considered enforceable, considering that the person "agreeing" to the dialog can arbitrarily manipulate the contents of the agreement terms:

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30 seconds with the browser developer tools later. Note that you can still create an account exactly as you would normally, despite the changes!

It's been my impression that the explicit agreement indicated by the checkbox or clicking of "agree" is the action that the enforcability of the terms of service hinge on [1].

Is this correct, and if so, how can contracts like this be considered enforcable? While it takes slightly more effort, the click-wrapper on most software can be manipulated in a similar manner.

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    A piece of paper is rendered client side too. – Terry Oct 29 '15 at 12:07
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OK, so you understand that clickwraps do create enforceable contracts.

the person "agreeing" to the dialog can arbitrarily manipulate the contents of the agreement terms

So what? I can do a similar thing with a pen and paper agreement. You send me an agreement, I tell you I accept but secretly I have changed it. Well, guess what, when this ends up in court the judge won't care if I wiped my ass with it - I communicated my acceptance of your terms; therefore that is what I accepted.

Under the hood, Google can show what the HTML was that their server sent to you and the http response that you sent back. They said "Do you accept?" you sent back "yes", deal done. What you did with the html in your computer does not matter one iota; just like what you did with pen and ink terms would.

  • The point is that it's not secret, it's more akin to you sending me an agreement, Me changing it, sending it back, and you accepting it without ever even reading it. – Fake Name Oct 29 '15 at 4:57
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    But you don't send the changes back: your http request simply says that the checkbox they sent has been checked. The changed html never leaves your computer. – Dale M Oct 29 '15 at 5:34
  • There's no reason for them to not validate what you checked, aside from the assumption that it's fixed. Effectively, my assertion is the process is broken because they make no effort to validate that you're agreeing to what they think you're agreeing to. It wouldn't be technically difficult at all to implement some form of validation, but no one does. – Fake Name Oct 29 '15 at 17:36
  • Furthermore, while my case involves deliberately changing the displayed content, there is effectively zero reason another agency in the middle could not alter the contents in a similar way entirely undetectably to either end (well, HTTPS makes it harder). The point is, there is no chain of custody or way for anyone to assert the other party agreed to what they think they agreed to. – Fake Name Oct 29 '15 at 17:38
  • And I use couriers to send paper contracts; this stuff is not criminal evidence - chain of custody is not that important – Dale M Oct 30 '15 at 7:18

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