Linux Doesn’t Have Binding Arbitration – Tin Foil Hat Time 8

The Article

Binding Arbitration…have you heard of that?  Even if you have not you are still bound by such clauses in more places than you imagine.  Do you have a cell phone with Verizon Wireless, AT&T, Sprint, T-Mobile, or Tracefone?  If so you are bound to a binding arbitration.  Do you use Windows 10 or other related Microsoft services?  You are also bound to such arbitration.  Internet services?  Yep, the major players covering most of America in internet do contain this clause in their terms of use.

Binding Arbitration

The Binding Arbitration clause is now added to many terms of use End User License Agreements (EULAs) that forces the user (all of us consumers) to use an arbiter to settle any disputes.  This means that by using the products and services provided by company we are agreeing that we cannot sue the company for any reason….period.  I am not suggesting a sue-happy life, but there are clearly times that a company realizes they can make more money by breaking the law and paying the little fine, should they get caught.  Binding arbitration keeps these types of cases out of court meaning they spend less on lawyers, and the cases do not become public record making the patterns of corporate misbehavior harder to spot.  There are certainly legitimate reasons for a company to want to prevent people from suing, particularly in the case of frivolous lawsuits where consumers try to take advantage of a company.  But in most cases the arbitration is not to protect the company from bad consumers, particularly considering our current landscape of poor server security, poor tech professional training, the minimal staff running many tech companies, and the constant push of the proverbial envelope it is more to the benefit to the company to not have to be diligent without worry about being sued.  Either way, this is a tricky situation.

Best For the Consumer

Weighing the pros and cons of binding arbitration, it is generally best for the consumer to not require binding arbitration for using a service.  The major disadvantage of arbitration generally opens up a company to break ethics, policies, and laws all for services that are generally considered essential in our modern age, like computers, internet, and phones.  A good middle ground is voluntary arbitration.  This is when a company and consumer has the option to arbitrate a disagreement to come to a voluntary resolution if any dispute should arise.  This method allows for an honest mistake by either party to not become a trial, violation, or issue but when a consumer or company believes the other party acted in poor faith, the possibility of a lawsuit is still on the table.  To this end several activists groups have sprung up to defend consumers against binding arbitration.  To the other extreme a law was proposed in the senate to completely remove binding arbitration.  This is a Arbitration Fairness Act of 2015, but it has not been discussed in some time.

Unfortunately for the consumer, there is already a law on the books that covers arbitration, but it is the Federal Arbitration Act that limits arbitration only to contracts created before 1926.  This bill was used to strip consumer rights and force the customers to pay all costs associated with the arbitration.  The arbitration clause was challenged in California and defeated, but the company argued that the federal act trumped the state law.  The new proposed law would overturn the Federal Arbitration Act, but as you read in the notes, it is a slow-moving act.

Tech and Arbitration

As the explosion of apps, web services, and electronic devices arrives on the consumer market most of them contain binding arbitration clauses.  The worse part is that they have binding arbitration combined with the clauses that any or all of the terms can change at any time and continued use of the product or service implies your consent to agree to those changing terms.  This is how Facebook suddenly made all of our private posts public in one day in 2012.  These arbitration agreements even bleed over to phones, even exploding phones.  The Galaxy Note 7 was rushed through production specifically to beat the iPhone 7 to the market.  On page 18 of the Galaxy Note 7 manual, instructions were given about how to opt-out to the binding arbitration.  How many people do you think read the manual and opted out?  How many before the phones started blowing up?  This is the problem with binding arbitration.

At least the Apple products at this time do not have binding arbitration on any of their systems, nor does the base Android platform, but Microsoft forces binding arbitration on all of their products and services.  This means for the majority of computer users, if the company that is forcing updates, collecting telemetry, and freely handing off information to third parties cannot be held accountable to the courts of our land.  We are allowing tech companies to bind us to arbitration, but we do not have to.

Linux distros, on the other hand, do not force binding arbitration, at least not the major ones.  Privacy on Linux is overall pretty good.  Ubuntu caused some waves when they implemented some search features in the dash search, including sending IP info to Canonical but as of 16.04 this features were disabled by default.  Other than Ubuntu, the major linux distros do not collect information, and none of the distros I examined had binding arbitration.  Some of the distros like Linux Mint did not even have a terms of use, in other words, totally open with all rights and responsibilities therein.  Why Linux instead of Mac since they also do not force arbitration?  Just read the policies and you will know why.

What Can We Do?

First, read all terms and conditions and weigh whether the service is worth the conditions and relinquishment of rights.  Next, opt-out of all binding arbitration if you feel appropriate.  The positive is the opt-out process is usually just an email, the negative is you need to provide full contact information to the company and we have no idea what that means in terms of our privacy.  Third, contact your legislators to get the new pro-consumer bill passed which will greatly restrict many forced arbitration agreements.  Finally, switch to products, services, and software you do not need to give away your rights to use.

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