[kelthan]

Automatically opting-in customers to a more restrictive TOS is pretty suspect, especially given the timing. IANAL, but I'm pretty sure that a court would not allow that, given that the TOS was changed AFTER the breach and it's pretty clear that the company is trying to avoid legal issues after-the-fact.

I would expect the court would evaluate any breach under the TOS that was in effect at the time of the breach, rather than under a new (and arguably suspect one) that was put in place after it, arguably in an attempt to "rewrite history".

[everforward]

They ought to be evaluated as if no TOS exists. Given the clear intent to defraud customers by misrepresenting the contract they were bound by, the claims should be evaluated under the TOS most favorable to the plaintiffs. The most favorable TOS is the one that's invalid because 23andMe didn't get anyone to actually agree, ergo the claims are evaluated as if no TOS exists.

This is an attempt to undermine consumer protection laws, and the government should treat it as a direct attack. Other companies are watching. The government needs to send a clear message that this won't be tolerated before it spreads, becomes the status quo, and leaves many consumers believing that they don't have any rights or protections.

The head of legal should also be disbarred under American Bar Association rule 1.2(d):

> (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

This reads as clear contract fraud in the factum [1]. Customers are told that they're bound by new contract terms, despite that 23andMe never got agreement, nor tried to get agreement, nor even know whether customers have read the new contract. I can't fathom any other reasonable interpretation of the situation. They created a fraudulent contract hoping to confuse other entrants to prior versions of the contract, and intend to benefit from that confusion. It seems clear to me. They are attempting to undermine the legal system, and the ABA needs to deal out swift punishment as one of the protectors of that system.

1: https://en.wikipedia.org/wiki/Fraud_in_the_factum

[blagie]

> ABA needs to deal out swift punishment as one of the protectors of that system.

This is part of the legal system. It shouldn't be, but it is. If you can toss a hundred issues the other party has to refute, you drive up legal costs to where litigation is no longer practical. The other side loses by default of not being able to afford litigation.

The ABA is, indeed, one of the protectors of the legal system, and have no vested interested in undermining it. The system means their constituents, lawyers, make more money.

Footnote: The mistake you made is that 23andme isn't undermining the legal system, but rather, justice. The two are not the same.

[bertil]

I’m curious if their lawyer has a defense in saying that they advised against it, but were told to try it anyway.

I’m even more curious if the change of ToS alone could be grounds for a trial, even a class action—making the risk not even worth the try.

Even harder to swallow: discover that the lawyers using the class action got hold of the data from the leak and used that in their marketing.

[underlipton]

There should a (modern version of a) letter-writing campaign to pressure the government to take this seriously. The literal core of one's being is on the line.

[throwaway092323]

They probably know that it doesn't hold water legally. The hope is to victim blame as much as possible so that fewer people sue them in the first place. The next step will be to "remind" people about the TOS that they totally agreed to.

[dylan604]

This looks like a perfect class action case. There's really no physical harm or financial harm to the users, but a class action might be the only way for it to hurt. But IANAL, and probably have it all wrong in my head???

[lp0_on_fire]

Exactly. Same reason construction vehicles have "Stay back 200 feet: not responsible for broken windshields" written on the back.

[batch12]

I wish a class action could include those of us who have never used their service, but whose relatives have.

[thereddaikon]

And just because a TOS says something doesn't mean it will necessarily hold up in court. They aren't law.

[kelthan]

Right. Also, the practice of having a sticker on a shrink-wrapped box of software that read "By opening this package you agree to the Terms of Service contained within", where the TOS was inside the box that you needed to open the package to read, was deemed unenforceable back in the 90's. It's the reason that TOS' are now displayed as a pop-up during installation. Not that many more people actually read them before installing the software, but at least they are given the option to.

I suspect that a competent lawyer could fairly easily argue that this "automatic opt-in" is the same thing in a slightly different format.

[d3w4s9]

"a court would not allow that"

I don't know where you have been the last few years, but I am pretty sure things like that happen all the time, based on the emails I received regarding ToS updates. And I have never heard any company got into trouble in court. Maybe public opinion, but that's it.

[smcl]

I'd say it's more than suspect, what's the point of agreeing to a terms of service if they can change after you agree to them?

[huytersd]

They usually put that exact thing into the ToS. The right to change it at any time.

[dannyw]

Federal Arbitration Act severely, and nearly completely, ties courts hands around throwing out binding arbitrations.

Of course, if people don’t accept the new terms, they are still bound by the one ones. But if you don’t opt out…

[kelthan]

But having the company update a TOS that automatically removes rights from the consumer, after the consumer already agreed to a TOS that didn't previously restrict those rights is likely not going to hold up in court, either. Especially when the TOS changes were made after an event likely to trigger litigation.

This isn't a case of a minor change to consumer rights in the TOS like changing who would arbitrate a case. It's a significant restrictive change to the rights of the customer in favor of the company. And it was made after a security breach that affected a huge portion of the companies clients which is likely to trigger lawsuits of the form that the TOS now seeks to restrict.

This is clearly a case of attempting to close the barn door after the horse was spotted in the next county over.

[BobaFloutist]

The good news is binding arbitration has some significant downsides for corporations - look up "mass arbitration".

[lozenge]

> IANAL, but I'm pretty sure that a court would not allow that

You and a lot of the people who replied to you seem to be confusing what is unjust with what is illegal. You can't use one to deduce the other.

[baryphonic]

Cornell's law school has a pretty good guide to these "adhesion contracts" such as web TOS.[0] This alteration strikes me (IANAL) as running the risk of being unconscionable. If the contract change is unconscionable, then the new terms mandating binding arbitration are void.

Again, IANAL. Just my opinion as a citizen, not legal advice. Seek competent legal advice before taking legal action.

[0] https://www.law.cornell.edu/wex/adhesion_contract_(contract_...

[jalapenos]

Have they ever implied this would apply to accrued causes of action though?

Would like a laywer to correct me if wrong, but these terms would only apply to any future events, not to the hacks that happened under the previous terms, for which they've already accrued the right to sue in a court (or whatever those terms said) regarding that hack, and 23andMe hasn't really implied otherwise just by updating its terms?

If they wanted that, they'd have to have explicitly included language like "by continuing to use our services after this notice, you covenant not to sue in court for any prior causes of action" or the like?

[Affric]

Yep. Having defended contracts that legally the company could novate the circumstances that lead to the notation had to be either outside of our control with a third party changing our underlying costs or the first and second parties failing to agree a new contract and a standard contract that was already defined being put in place. This was later deemed unfair and the standard contract was made much cheaper. Ha!

My point being that in Australia my vibe is that this will be looked upon in a very negative light by courts and any regulators.

[gentleman11]

Any contract that can be changed at the whim of one party should automatically be invalid

[pbhjpbhj]

That should be a crime in itself. Looks a lot like fraud.

[wackycat]

Right! If this were a law rather than TOS it's the whole ex post facto situation.

[amelius]

What if they sell their entire business to a subsidiary?

[sonicanatidae]

I would like to think they will be nailed to the wall, but the current is that they will get a pittance fine, at best, before accepting their well earned bonuses.

I hate this timeline.