Wednesday September 17, 2014
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Floods close Houston Mesa Road September 17, 2014
I knew this one was coming all the way back in 2009 when I read that Facebook was going to allow its members to vote on the way it uses people's information.
My comment at the time was, "Don't join! They'll get your data, and change the rules."
I had quite a discussion about that with a friend who was adamant that such a change would never be made, but since I don't use social networking sites I just let it go.
Told you so!
Well, truthfully I guess, I didn't tell you so. We don't usually discuss such things here, except as relates to browsers et all.
Here's what CNN is now saying:
"Unless Facebook users fight back, the days of the social network's experiment with democracy may soon come to an end."
"The company on Wednesday proposed to take away its users' right to vote on major issues concerning the governance of its 1 billion-member online network."
The part that interested me was when I came across this comment, made--according to CNN--by Facebook:
"...in what Facebook calls an experiment with digital voting rights..."
I knew it! An experiment? Did they call it an experiment back in 2009? If they did, I didn't read that anywhere.
CNN says, "As a replacement for the vote, Facebook is proposing to continue offering the seven-day comment period on proposed changes to its governing documents. It will also offer two new ways for users to voice their governance concerns."
I have a better idea. A simple, straightforward, retain your Constitutional rights, don't get screwed by some company, American Plan, idea:
It means that when a company proposes a change, the change only applies to those people who select that change--in writing.
One federal law would fix that--and forever!
My guess, by the way, is that if Facebook goes ahead with this plan two things will happen:
a. Their participation will drop like a rock.
b. Hackers will swarm the site seeking revenge.
c. Their stock will drop faster than their participation.
Not a Facebook person. I tried way back when but before I knew it people I had never heard of were claiming to be third and fourth cousins and wanted me to be their "friend". I think I lasted about 3 days before I exited that site for good.
As to the "breach of contract" issue, is an agreement to "Terms of Service" one accepts to participate on such a site the same as a contract? As here on the Roundup blog, there are "rules" we all agree to in order to post in the threads, but I'm not certain I could hold the Roundup in breach of contract if they chose to change those rules without first consulting me.
Wouldn't break my heart to see the results you forsee for Facebook if this creates a real donnybrook. It's hard to have a conversation with anybody any more as they seem to be forever on their "electronic wizard" posting on FB or Twitter chatting. Maybe we could get back to real one on one , face to face interaction.
"As to the 'breach of contract' issue, is an agreement to 'Terms of Service' one accepts to participate on such a site the same as a contract?"
It is a contract. The main two elements of a contract are "value given for value received" and a "meeting of the minds."
When you signed up with the Roundup you were given permission to post on the forum; that is "value received." The "value given" (by you) was the enhancement of advertising space by an increase of one person. By and large, that's how newspapers make their money; very little of a paper's income comes through the little we pay for one. The "meeting of the minds" came about when you agreed to abide by the terms set up by the Roundup.
You could, if you wished, file a suit if you were banned and you felt your ban was not in accordance with the terms of the contract. It would, admittedly, be an unlikely thing to do because there is very little "value" involved, certainly not enough to induce most people to take such an action. And in contract law, which is based almost entirely on "common law**" (court decisions), there are many ifs, ands, and buts.
more (about Facebook)
In the case of Facebook, however, there would exist the possibility of a class-action lawsuit where millions of people could reasonably claim that their private information was being used in a way which was damaging to them, and to which they did not agree.
The court would ask a couple of questions that Facebook would not like to hear. They both have to do with one of the legal pillars of a breach of contract lawsuit: misrepresentation. Basically, misrepresentation means a false statement of fact made by one party to another party that has the effect of inducing that party into the contract. A finding of misrepresentation results in rescission of the contract, and where private information is concerned would almost certainly include damages, possibly very substantial damages--but those damages would have to be proven.
Although we see very few suits filed under contract law in cases between individuals and large companies it is only because the public is largely unaware of its rights. The first time someone with an unlisted telephone number is found and killed by a serial killer who set up a 1-800 number to suck in victims, for example, you are going to see some fireworks. You see, when people pay for an unlisted phone number they think no one can get it, but Ma Bell quietly arranges that if you buy a 1-800 number, and someone with an unlisted number calls you, that someone's telephone number is displayed on your screen. The phone company will tell you--but only if you ask--that you didn't pay for the call, so the rules changed. But they don't tell you that when you pay for an unlisted number, do they? Under the law, that kind of inducement--the leaving out of a material fact--can in result in rescission--in arrears--of a paid contract, or a criminal charge where appropriate. I took Brooke Utilities to the ACC and beat them hands down for over $1,000 on the leaving out of a material fact. It was easy, and I'm no lawyer either.
Basically, what contract law is all about is some Latin phrase or other. I think it may be pacta sum servanda (that's wrong, but it's close). It means "agreements must be kept."
And having exhausted my mountainous knowledge of contract law, I will now shut up. :-)
Oops! Almost forgot the note:
** Article 1, Section 10, of the Constitution says--among other things--that "no state shall pass any law impairing the obligation of contracts."
Might I say, that was as clear as mud. The inability of a "lay person" to understand the vagaries of the monumentous amount of laws that regulate every aspect of our lives, is why lawyers even exist I suppose.
Amounts to this: If you agree to give something of value and someone agrees to give you something of value for it, and you both understand what's going on, that's a contract.
If the guy is offering you what you are led to believe is one thing, and it turns out to be something else, that's misrepresentation.
If someone misrepresents what you are going to get, then you can either cancel the contract, or you can force him to comply with it. You can also get your money back or get damages because you didn't get what you paid for.
I'll give you an example:
I planned to build a house in Pine. To do that I had to have a water meter. I went to the Brooke Utilities office to sign up on the list to get one. I was 6th on the list. My brother in law and his brother were also there. They were 4th and 5th on the list.
Before I signed the list I asked the manager, "Is there anything else I need to do?"
"No, just sign up and that's it."
I signed, and then asked, "Is there anything more I need to know?"
"Nope, that's it."
Some time later I was called and told I could have my meter installed as soon as I had a second box installed, one to contain my shut off et al. I had a plumber come and install the second box. The meter was installed and I paid about $800 for the two installations. I then started paying the minimum monthly fee of about $18.75.
I paid that fee for about a year I guess. Then Ray Pugel moved to town and wanted to build the house he now occupies on Old County Road. He found that he would have to wait for a meter by putting his name on the list. He was, I think, about 25th or so, meaning a wait of perhaps two years. He called people, including me, and asked if we would allow him to move up the list. I told him I already had a meter. He called again and asked when I planned to build. I told him I would build as soon as I retired and could be there to oversee the construction, which was some months away.
Pugel discovered a rule the ACC had made which was being violated. He called the ACC, which notified Brooke. I was then notified by Brooke Utilities that ACC rules said that I had to build within 60 or 90 days (forget which) of obtaining a meter, an impossibility for me. They then took the meter back.
I filed a formal complaint with the ACC, went to a formal hearing, testified, and questioned Bob Hardcastle on the witness stand. I had three witnesses standing by (wife, brother in law, and his brother) but chose not to call them because I could soon see they would not be needed to prove my case.
I won easily. The manager did not show, so there was no one to refute my statements, and when I questioned Hardcastle, asking whether stonewalling during a contract discussion was okay, he stated that it he was not a "teacher," a reference to what I did for a living. I posed the question again in the form of a summary of his position, saying that he therefore believes that stonewalling is appropriate. He did not refute or deny that summary, so I turned to the Commissioner and asked for a summary judgment based on the fact that there had never been a contract since there was no meeting of the minds, hence the contract never existed and everything I had paid should be retutrned. I did not get the summary judgment, but the Commissioner made it plain that I had at that point won my case.
A couple of weeks later I received a notice from the ACC saying I was due something like $1,500, everything I had paid for Brooke for the installation and the monthly charges, as well as the money I had paid my plumber for the extra box. All I had to do was sign that I agreed. I declined to take the money for the extra box, saying that I now owned it, that it was an improvement on my property, and I didn't think I should get reimbursed for it. And so I got about $1,200 or so.
The rest of this is beside the point, but I think you may enjoy it. I sure as hell did, and so did Lolly.
While I was on the stand testifying to Brooke's failure to require us to build within the time limits, a violation of ACC requirements, Hardcastle's fancy schmancy lawyer evidently thought it would be wise to ask, "Well, do you know of any other cases in which Brooke has ever violated ACC policies?"
"Yes, I can. I know of thirteen other violations."
I began reading the list in my hand. The lawyer said, "Well, we don't need to hear all that."
I asked the Commissioner, "Is it not true that since he asked the question I have to be allowed to answer it."
"Yes, it is."
I read all 13 of them and pointed out that I had taken them from ACC records.
The lawyer then asked some kind of no-right-answer question. I told him, "There is no use, Mister (I think it was Goldstein) in trying to use lawyer tricks on me. They won't work."
The Commissioner laughed, at which point I was excused from any further questioning.
Later, out in the parking lot Lolly and I laughed our heads off when we saw Hardcstle yelling at his lawyer.
There is, by the way, a God.
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