Well, that’s not how terms of service work. You can still sue
Previous rulings such as Rubber v Glue and Face v Hand make this look like a really strong strategy
Desperate strategy they’re hoping will fool some of the people some of the time.
Trusting complete strangers with highly personal information is never a good idea. Even if they promise to take good care of it, before or after they’ve already got your money.
Not sure about other states, but in my state you can agree to mandatory arbitration for past incidents as long as they don’t do reeeeeally egregious behavior like, eg, slipping a notice into your normal bills and having you “agree” by not objecting within X days.
Olnly if you opt out of the new terms, at least in us.IANAL of course
In much of Europe, at least in EU, ToS cannot take away legal rights.
in order for a ToS to be legally enforcable, the user has to see it. A user cannot give consent on an agreement they did not see, therefor in court it would be 23andMes job to verify that the user was indeed aware of the ToS and acted accordingly. they could not say everyone ops in and defend themselves that way by default because not everyone that was forcibly opted in gave an agreement to the new ToS.
You can still sue. Whether or not the suit goes through is different story.
Poor reporting, as ever. As people have pointed out, you cannot disclaim away the Law. No one can.
If you did a bungee jump, and you sign any kind of waiver, it might protect the company if your glasses fall off and smash. It will not protect them if the rope snaps and break your head.
Lawyer here: this isn’t necessarily correct and in America it’s state dependent. There are absolutely parts of the law you can waive, including negligence of a party which is likely your bungee jumping scenario with the rope snapping.
Are T&Cs retroactive? I would think any new T&Cs could only apply from that point forward, not that they could retroactively absolve themselves of liability or how you could pursue it.
Like all good lawyer answers: maybe. I don’t know enough about the specific amended terms or their data breach. Courts sometimes enforce adhesion contacts and sometimes don’t. But retroactive in and of itself isn’t illegal; for example, if you could edit NOT retroactively settle a dispute, you’d have no settlement agreements.
But settling a dispute requires compensation for the party that was damaged. That’s what a settlement is.
You can’t say “If you don’t do A, B, and C you can’t sue me! Nah nah nah!” Without compensation courts are not going to believe that anyone knowingly agreed to the settlement.
Now if they gave everyone like $5 and said “Sign here where it says you can’t sue,” that would be different.
You’re referring to the contract concept of “consideration” which sometimes is the same as compensation but can also do doing/ not doing an action. Sometimes consideration isn’t required either, particularly if the original contract had adequate consideration and says future amendments don’t have to have it. (Depends a lot on which state). That may or may not matter here. It really depends on the specific terms at dispute and you can’t just assume it fixes this issue.
IANAL and I don’t claim to fully understand the case, but it looks to me like the reason they might be able to get away with it is that they’re not trying to change anyone’s rights or obligations; they are “merely” changing the mechanism by which disputes are to be resolved. It is of course a pure coincidence that the new mechanism makes it a lot harder to find 23andMe liable for any infractions.
I lean the other way.
I think it would be a pretty solid case to argue that the change to the TOS, considering the timing and combined with the breach, would be outrageously unreasonable enough to invalidate the “meeting of the minds” requirement.
Ain’t America just grand
Well, I yield to your experience and training , !
My understanding is that when signing a liability waiver, first the acknowledgement of risk happens, and then the release of liability. State by state it can be a little bit different for releasing liability, depending on the interpretation. I looked up where I live, and that liability waiver isn’t upheld if one can prove damages (possibly death, in which case someone has to sue upon my lifeless corpse) caused by intentional recklessness, not simply neglect.
It would be interesting to look into some cases. My statement was based on not being able to disclaim negligence at all.
That’s what the helmet is for.
Silly lemmer, you can’t protect your head with paper. You gotta use a helmet. Psh
PSA: you can request deletion of your 23andMe account. It won’t do anything for this past hack, but it’ll at least prevent your data from being included in future hacks (assuming they actually completely delete your data like they’re supposed to).
it’s almost always a soft delete, that is, change active field in database to false, coupled with their terms of service that state vaguely how they start the deletion process which could take months and how they may still keep certain data for legitimate purposes.
And this is why I wish we adopted GDPR more… if they are compliant, then they have to remove all data held when requested. Too bad the US will never care that much to respect individuals’ data like that.
Exactly. I made a GDPR request for deletion. They can get in big trouble if they are soft deleting.
Have they ever been audited?
How does the legal authority work with GDPR if the company’s physical and financial operations are entirely within the US? Would the GDPR even be allowed to audit them without their consent?
No idea if they’ve been audited. GDPR doesn’t require it. My understanding is that American companies doing any business or having any users in the EU need to be GDPR compliant for those users. I don’t think that’s been challenged in any courts yet.
They didn’t.
They just made it so you couldn’t see it anymore.
Too bad, it happened wile the old ToS were active. :p
Nu-uh, you can’t prove that! And even if you can… LALALA! 🙉
One thing to note: the email says to send legal@23andme.com an email to opt out while the updated ToS say to email arbitrationoptout@23andme.com.
I feel like ToS changes should require the user to accept before being enforceable with no right to suspend the user’s account if they don’t and when it comes to data it should only apply to data the user shared after the changes…
pretty sure ToS aren’t enforceable, it’s just that it’s costly to challenge them.
