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I was recently standing in a department store, getting a new waistcoat to further cement the “professor gym-rat” look I have carefully constructed.  Next month I’m gonna try suspenders and a bow-tie.

Anyway, during the checkout process, some statement flashed up on a screen to the effect that I needed to know and agree to some terms.  It was probably something trivial like the requirement to anoint the vest with sheep’s blood once under a full moon before wearing, or maybe just the return policy.  I’ll never actually know, because at the moment it flashed up there, the woman on the other side of the counter reached around the POS terminal and pressed the “agree” button for me.  My first reaction to this was “hey, I was reading that!”, followed immediately by “oh, wait, no I wasn’t.  I was about to do exactly what you did without a second thought.”

I had just become another statistic in the ever-increasing rights-erosion that is happening, more or less ironically, with our full “consent.”  The salesperson could be perfectly sure that I was about to agree to whatever was on that screen – be it a signed confession of murder, or just an agreement not to sue if my clothes came to life and ate the cat*.  But to make the case clear for why this phenomenon isn’t going away any time soon, let me go back in time a few decades….

In the late 90’s, consumer culture seemed to have reached a kind of disclaimer-zenith.  So many products had disclaimers of use, and they were so intensely worded, that at the time I predicted that every product by 2010 would come with a simple label saying “for novelty only, not to be used for any purpose at all, under any circumstances.”  Sounds nice and air-tight.  But as it so happened, there was a problem with this reasoning.  While it’s all well and good to say “if this product poisons you, you can’t sue us,” it isn’t very enforceable in a world where people don’t expect to be poisoned.  How much better, then, to literally say to a person “hey, this could be poison, you’ll have to agree that you understand that before you buy it.”  But how to make that fly in a society full of people who still don’t want to be poisoned?  Well…..

First of all, we don’t read much.  Really. People get a very little way into any content (specifically online content) before tuning out, so a good technique to getting your poison-laced whatever through into legal-land would be to just fill the thing with legalese and make it very, very long.  According to some careful research, the average EULA would take the average person nearly 40 minutes to finish, far longer than it will take you to read this article.  So, check.

“But wait,” I hear you cry, “these things are important.  You could put the whole Principia Discordia in one of these things and then I’d have signed it without knowing – of course I’ll read it!”  Well, unfortunately, no you won’t.  Meet Vigilance Fatigue, the pattern of gradually eroding mental capabilities you face when dealing with this sort of “complex information overload.”  According to the FBI:

The final class of threats to sustained vigilance resides in the nature of tasks and the quality and quantity of involved data. Information overload becomes a critical contributor to vigilance fatigue by creating data and cognitive clutter, fostering workload bottlenecks, and impacting an individual’s ability to detect significance in data.Overload-related issues are complicated further in cases where the data is novel, ambiguous, complex, or conflicting. These circumstances undermine the utility of tried-and-true cognitive schema, expert systems, heuristics, and synthesis strategies and reduce decision-making certainty and confidence.

So even if you want to read that 35-minute EULA, somewhere in the middle your eyes will cross, your vision will blur, and you’ll (at least) need to go back and try to summarize.  And between the labels-on-everything in the 80’s to “exclusion of all uses” in the 90’s and finally super-EULAs in the naughties, we have, as a society, given up.

It didn’t seem so bad in the 80’s….

It didn’t seem so bad in the 80’s….

So what happens to the companies who jumped on the “metally-fatiguingly-long-EULA” bandwagon?  Well, among other things, enhanced legal protection for whatever policies they wanted to enact.  But what happens now – will people stop buying these products?  And if not, what does it mean for the market?  Well, buckle up, because we’re about to find out.  See, the demand for products tends to revolve around the cost and the willingness of people to pay that price.  For the sake of argument, here let’s assume that the monetary (i.e. dollar) cost is fixed, and let’s instead focus on the cost to privacy and rights.  We’ve established that companies get some tangible benefit to adding more “consent” and “assumed consent” clauses onto their products.  If people are very responsive to that additional cost, then we have the graph on the left, where a little more cost added means a lot of people don’t want the product as much.  We’ll call this behavior “the 70’s,” in a shameless appeal to the golden age, and note that it allowed companies to only impose a little of this “cost”.  But if people don’t “feel” the extra cost very much, we get the graph on the right, where “prices” can rise quite a lot without risking people dropping out of the market.

Inelastic Demand Means bigger “price” hikes until….

Inelastic Demand Means bigger “price” hikes until….

So the market raises prices.  A lot.  And lest you think we’ve neared the end, extrapolate a little with me –  as the demand line turns ever more vertical, that increase in “price” by way of giving up rights and knowledge can go up faster and faster, rather than reaching a set maximum.  In effect, if the “demand for rights/privacy/actually informed consent” goes vertical, then we will hit a “Consent Horizon,” in which essentially all rights are forefeit upon encountering the product in any way.  the moment when all liability is assumed by the buyer upon even the intention to buy anything.

So the lady at the mall had it right, by just pushing the button for me.  And what had that screen actually said?  I dunno, I wasn’t really reading it…..

*  I do not have a cat and no animals were harmed by ravenous animated clothing during this story.