Here's what developers need to know about digital legal record keeping

Aug 27, 2015 2:36:00 PM

Lately, we have been encouraging lawyers and companies to check, double check, and re-check their privacy policies and terms of service to make sure they are enforceable.

And that is extremely vital when working to protect your interests while maintaining your reputation as an honest, trustworthy, customer-friendly company. (Have no clue what I’m talking about? Read it again!)

But rest assured, we have not forgotten the developers; the crux of the operation that make digital businesses a reality!

Below are tips for developers on designing website terms of service, terms of use, and terms and conditions. All of the terms! Check it out.

1. There is no such thing as making an agreement notice TOO obvious.

Make users actively adhere to your site’s clickwrap agreement by clicking that box that says, “Yes, I agree to terms of service.” Make sure that those terms are very conspicuous where anyone can see them.

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Continue to return users to wherever that clickable box is until they have said yes. A general rule is, “no agreeing=no website-ing.” 


The whole “by signing up, you’ve agreed to our privacy policy and terms of conditions” thing is not going to fly for much longer. Gogo stayed with this style and the type of flow for tracking the enforceability of this implementation of an agreement ended in a class action lawsuit for this exact reason; their agreements were displayed in a less-than-obvious format. Zappos found out the hard way too.

 

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Make it as easy on yourself and your team as possible; create a clickwrap agreement where active consent is requested and even go as far as enabling a scroll box with the details of the agreement in plain sight.

2. Digital record keeping should be readily accessible, but usually isn’t. Change that!

There is this mistaken mentality out there of, “I won’t worry about it until I have to.” Whereas time management and prioritizing are definitely real gatekeepers, there is no room for that in business; there is especially no room when hundreds of thousands of customers are using your site on the daily.

Imagine this conversation as a developer…

Your lawyer/General Counsel: We’ve been sued by one of our customers. I need you to find out which version of our terms he accepted. And the design flow of the clickwrap agreement on the date at which he accepted it. And what versions of our terms he’s accepted since. Can you get that to me by end of day?

Sure — run some queries, dig through the website CMS, use Archive.org to sift through the login page to see if the implementation of your website terms of service has changed since when that customer agreed… all doable, but how confident are you in presenting all of these facts to a judge? You’ll of course have to spend some time sitting down with a lawyer to hammer through the details — all the while completely distracted from priorities of your real projects. And the worst part is, what if you can’t prove all of the necessary details? What if the person who originally wrote the code is gone?

The problem is when you are building a new app/website/service, you don’t take into legal record keeping and respondents into consideration in system design.

 

3. If 2 applies to you, start recording the right elements of a respondent TODAY. Now! Go do it! Please!

  • Track an identifier (like email address) along with their IP or location that can help you easily identify the user if you needed to prove it
  • Track all major version changes of an agreement (including knowledge of what changed)
  • Track all versions that a respondent has agreed to. Note: make sure as terms are updated, you have proper methods to notify the respondent of changes (via email or when they next login) and prompt them to agree. You wouldn’t want to create unconscionability, would you?

4. After setting up those digital records, make sure that tracking the versioning of your terms of service is included. 

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Less than half of sites are taking the minimum precautions necessary to date their latest agreement updates. If, for some reason, you should ever need to acquire that information (regardless of whether or not that included getting sued) the data-mining process to recover the exact update information is a headache. It’s like a type-A personality’s morning routine...if something goes out of whack, the whole day could potentially be off— the main difference here is that deviation from a morning routine won’t typically land you in a courtroom. Ignoring important digital records will. Yes, it escalates that quickly.  

5. Ask for help.

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With new products developing every second on the second, and technological innovations bustling out the wazoo, it is easy to get overwhelmed. Not only is it easy, but it’s extremely understandable!

Don’t be a wiseguy or gal — ask for assistance, look to the experts who know about this implementation process front and back.

  

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Amber Ferrari

Written by Amber Ferrari