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The new Terms of Service went live yesterday following an 8-hour heads-up on meta. One key change that was mentioned as an aside with no real explanation is the new arbitration clause.

Opt-out appears to be possible only via snail mail, according to the ToS and an unsure comment by an employee. Let's ignore for a second that allowing opt-out via snail mail is equivalent to giving every user the finger. Let's also ignore the highly controversial and questionably ethical nature of arbitration clauses, which I had to look into myself since the company gave no real explanation what it's all about. (Some users did.)

So how do we opt out via snail mail? How do I identify myself? The company barely knows any personal details about me. How can I opt out or make sure that others don't opt out on my behalf if I don't want to? What are the exact contents of the letter that has to be sent to the company so that it won't be deemed illegitimate by the kind lawyers at Stack Exchange, Inc.? Note that we have only 30 days (give or take) to opt out, and snail mail to the U.S. is slow around the world.

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    Also, will we receive some written confirmation we can file away for future use? – Baum mit Augen May 3 '18 at 10:36
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    @BaummitAugen no, but you'll get some stickers ... – rene May 3 '18 at 11:30
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    If this is legit I guess we can all do that ... – rene May 3 '18 at 12:03
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    @rene How would you prove in court that post of yours ever existed? Bring a screenshot with the fuzzy time "5 minutes ago" and your system clock circled in red? =D – Baum mit Augen May 3 '18 at 12:07
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    Why would they need to connect the opt-out with a particular account in their system? If they want to sue you in their arbitration court, what they'll need for that is your real name and address, and they can connect that to your letter. – Henning Makholm May 3 '18 at 12:14
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    @HenningMakholm You've got it the wrong way around. It's very unlikely that SE Inc. will sue you as basically all you can do is spread bad words about them (not illegal) or share some information (heck, basically all information you have is public). It's more likely that you'll sue SE Inc., probably over personal information leak or career damage or similar. – yo' May 3 '18 at 13:03
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    @yo': If it is very unlikely that SE will sue me, then why are they writing their ToS so they purport to allow them to do in their own courts? – Henning Makholm May 3 '18 at 13:38
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    @HenningMakholm Well, you have to ask them, not me :-) But the thing is, they want all lawsuits (both ways) to be decided by arbitration, which is a standard thing to do once you go for it. – yo' May 3 '18 at 13:48
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    @yo': And why should I accept to be sued by someone in a private kangaroo court they select and have written the rules for? – Henning Makholm May 3 '18 at 13:53
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    @yo': Which case? I don't have any case against them. They are providing a service on the internet for free and don't owe me anything. The only possible dispute is if they suddenly decide they want money from me. – Henning Makholm May 3 '18 at 14:10
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    @MSalters: Only if I have a case against them, which I don't. The question is whether they get to sue me in their private court demanding $50,000 (in compensation for emotional distress inflicted on one of their employees, a closeted knight of Ni, when I posted an answer including the word "it") and hope I'll roll over rather than pay an American lawyer $100,000 to defend me. – Henning Makholm May 3 '18 at 14:52
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    @HenningMakholm: They can of course demand that. But while Denmark generally accepts US court rulings, it's a whole different matter for arbitrage. You just invoke EHCR 6 (right to an independent judge) and the Danish judicial system will invalidate the ruling. – MSalters May 3 '18 at 14:57
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    I applaud SE for protecting themselves against the enormous costs of litigation in a court of law. Sadly, we live in a litigious society, often motivated by greed or lawsuits filed by snowflakes who are too quickly offended by utterly trivial matters. – Mike Waters May 3 '18 at 17:51
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    There's an update by Tim on the arbitration clause for those interested. – Andras Deak May 3 '18 at 18:43
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    Not sure about the whole EU but from what I heard in Poland requiring snail mail for such a thing counts as something like "imposing an unjustifiable and inadequate burden". – BartoszKP May 8 '18 at 7:20
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Such clauses are unenforceable in the EU, so no need for EU citizens to manually opt out.

See the European Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts. Basically, there is a presumption that pre-dispute arbitration clauses in consumer contracts are invalid, and it is the task of the business to demonstrate their validity.

It many E.U. members states the law is even stricter; e.g., in Germany forced consumer arbitration clauses are deemed valid only if included in a separate notarized document.

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    [citation needed] – Angelo Fuchs May 3 '18 at 16:18
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    @AngeloFuchs: Done. – AlexP May 3 '18 at 16:39
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    An EU citizen would still want to opt out if they intend ever to travel to the US. If an American court upholds an arbitration award against an EU user and the user refuses to pay up, they could be jailed for "civil contempt" (with less rights than actual criminals!) if they ever they set foot in the US. – Henning Makholm May 3 '18 at 16:49
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    @HenningMakholm I put it on my list of reasons not to travel to that crazy land, thank you. – Angelo Fuchs May 3 '18 at 17:02
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    "no need for EU citizens"? Not residents? Why would citizenship be relevant? – terdon May 3 '18 at 20:12
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    What about dual citizens who reside in the US? Or vise versa? – forest May 4 '18 at 0:10
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    You might want to add this information to this question too. It says it's about GDPR but the poster said that he is asking about EU law in general. – molnarm May 4 '18 at 6:56
  • @forest anyone who resides in US is considered subject to US law by US authorities. Anyone who is EU citizen is considered subject to EU law, regardless of where they reside, by EU authorities. The situation becomes pretty dire for the individual when the respective authorities start to make incompatible demands on their subjects. – artem May 7 '18 at 23:22
  • @artem but if an American citizen resides in the EU (or even just visits) they're not allowed to bring their firearms, regardless of the US law stating that they have the right to do so. Isn't in that sense the country of residence more important? The EU can make demands of the US authorities concerning their citizens, but those citizens are bound by US law as long as they are on US soil, right? – Adriaan May 8 '18 at 6:45
  • @Adriaan to be more precise, dual citizens must obey the laws of both countries (when they apply), and entertain the rights that are only allowed by both countries. Having firearm on person is a right, not restriction. Also, some big cities and some states in US have chosen to restrict that right, and that's pretty legal. – artem May 8 '18 at 13:23
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I was one who mailed them an arbitration opt-out letter. Not sure if this is exactly acceptable, but here's what I wrote:

Name: [my full name]

Email: [my email address]

Mailing address: [redacted]

I do not wish to resolve disputes with Stack Exchange, Inc. through arbitration or waive my ability to participate in a class action.

Signed,

[my signature]

[my full name again]

Stack Exchange profile URL: https://stackexchange.com/users/2477436/gparyani

I mailed it to:

Stack Overflow
Attn: Legal Department
110 William Street, Floor 28
New York, NY 10038
United States of America

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    I'm still wondering how SO can verify the authenticity of these. Anyone can claim to be the owner of a specific SE profile. – S.L. Barth May 3 '18 at 11:33
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    @S.L.Barth It's not really a concern. They're more concerned about the person than an account. – Sonic the Anonymous Hedgehog May 3 '18 at 11:34
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    So essentially you can only opt-out by giving away you a lot more personal info than most people would be comfortable giving.... – Cai May 3 '18 at 11:35
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    Sonic, that's a good point; when you go to court you're representing yourself. However, the problem is then pushed elsewhere: when you go to court with your real name how do you prove that the leaked data on Sonic the Inclusive Hedgehog belongs to you? – Andras Deak May 3 '18 at 11:35
  • You show them proof that you can log on to your account? – Sonic the Anonymous Hedgehog May 3 '18 at 11:36
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    Perhaps we should mail them our passwords just to be sure. – Andras Deak May 3 '18 at 11:37
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    @AndrasDeak LOL! But close to a solution, if a rather unconventional one: we could send the salted hash of our password. – S.L. Barth May 3 '18 at 11:40
  • Why is this being downvoted? – Sonic the Anonymous Hedgehog May 3 '18 at 11:50
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    @ThorstenS. If SE knows my password, their IT is really really broken. – Baum mit Augen May 3 '18 at 11:58
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    @S.L.Barth Yeah, I thought again and realized my comment was not quite fitting for the joke. XD To make this more rigorous however, we could put a PGP key in our profile description box, and print out the binary representation of the ASCII-armored signed opt-out letter. Then all they have to do is type in all the bits correctly and they can check the signature. =D – Baum mit Augen May 3 '18 at 12:01
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    @Sonic re downvotes – I didn't downvote but to be fair you give no reason why this is the correct way to do so (having done so yourself without any acknowledgement from SE doesn't really mean anything) – Cai May 3 '18 at 12:02
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    Uh sonic, you know, with your answer I have a vivid picture of a rig and several transporters stopping in front of SE, 40 persons jumping out and a guy ringing the bell: "Hello, we have a delivery. 8.8 million mails, please sign here." – Thorsten S. May 3 '18 at 12:09
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    Sure, this seems like a perfectly reasonable format without any further details from SE, but I would maybe preface your answer with that (e.g. something like "I'm not sure if this an acceptable format, but this is what I mailed:") and hopefully wait for some confirmation from a member of staff. – Cai May 3 '18 at 12:10
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    @AndrasDeak yes, as it is to me (and to be clear I wasn't criticising the answer, only trying to rationalise someone else's downvote) – Cai May 3 '18 at 12:13
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    Yes guys, you are right. Rub it in ;-) – Thorsten S. May 3 '18 at 12:15
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Q - How can we opt out from the arbitration clause of the new terms of service?

A - You don't have to, if you never agreed to anything, in the first place...

Just to be on the safe side (and show pro-active rejection), I would recommend sending and keeping proof of a certified mail to the published address of the company (in this case SE). If the letter is returned, you have a legal defense of having attempted to contact the company in "good faith" and the company not responding to their published address places "bad faith" on their own head.

First let me quantify my legal expertise. I am a USA Washington State paralegal - not a Lawyer, and as any lawyer will tell you, "my thoughts whether written or oral are an opinion until tested by a court of law".

For a contract to be binding it must at a minimum include:

  1. Date (valid period)
  2. Performance (what each party must do)
  3. Value (each party must give something of value)
  4. Meeting of the minds (clear understanding of obligation)
  5. Signature (commitment)

Now that the disclaimer is over, a principal of International and USA courts is there is no contractual obligation until there is a "meeting of the minds".

The LEGAL definition of "meeting of the minds" is both parties understand AND AGREE before obligating to the terms of a contract, what is expected to satisfy (called "performance") the contract and what should be done if a breach of the contract occurs. Recently, USA companies have been using (abusing) the "opt out" clause to buffalo the uninformed into thinking they are obligated to something they never agreed to :(

It is my opinion that "opt out" does not meet the contractual "meeting of the minds" and therefor is unenforceable, both in the USA and Internationally. Of course this is contingent on your war chest to defend yourself against a multi-million dollar legal adversary!

As an example, a ULA attempts to contractually bind a purchaser before they have read (opened a software package) prior to purchase. A ULA is a "Unlimited License Agreement" and according to the seller is a time-based contract for unlimited use. To my knowledge, no ULA seller (company) has ever successfully sued a purchaser for a undisclosed pre-purchase ULA violation.

Let me use an example; I take a document to a judge that says I own everything you had because you did not not "opt out" of an email I sent you. The judge will laugh me out of the court room, then kick me in the south end onto the sidewalk because we never agreed to anything in the first place!

In other words, an "opt out" provision in this context is a legal bluff and given enough money and time can be successfully defended against. This appears to be yet another SE disingenuous attempt (along with many other USA companies) to defend themselves against reasonable litigation after the Facebook expos'e.

As an aside, a general legal pretext is; "...what ever communication method was used to contact you is also valid for your response...". If THEY made legal notification by email, it is reasonable for YOU to respond via the same means - in layman's terms, "...what is good for the Goose, is good for the Gander".

NOTE: The USA holds itself to the precedent set by other International courts. In other words, if there is no precedence within the United States regarding the legality of a case, precedence already set in another country will be binding.

ALSO: United States Law says, except for rare circumstances, the Law where the individual resides, or where the violation occurred has precedence. So, the law of the land where the residence is living (for example, the USA "State"), or the country where the violation occurred will prevail.

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    I agree as I even never clicked ´I agree’ to that new ToS nor seen email about, nothing except a MSE post. – yagmoth555 May 6 '18 at 14:00
  • You say you are a WA paralegal, but your profile says you reside in Boise. Does that just mean you're licensed in WA or..? – ɥʇǝS May 8 '18 at 16:51
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    My mother was an attorney in Alaska - I started as a Alaska Paralegal then moved to Wa State (Oak Harbor - Widbey Island). My mother is close to passing away in the Boise area and I am currently spending most of my time there. I have residences in both states. – jwzumwalt May 8 '18 at 22:10
  • Ah, thanks for the clarification. – ɥʇǝS May 9 '18 at 0:30
  • @yagmoth555 I think I read in another answer here that an unread tos may still be enforceable in some cases. – LateralTerminal May 22 '18 at 14:12
  • I wouldn't believe it unless they provided a court case with a judges ruling. I don't think it exists. I suspect companies have done just the opposite - gone out of there way to keep out of court so a negative precedence can not be set. I am only aware of one case in Australia where MicroSoft lost a shrink wrap end user license case. – jwzumwalt May 23 '18 at 8:16
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As per the update to the new ToS we can opt out in email, along with possible future channels of opt-out. Quoting Tim:

Send an e-mail to team@stackoverflow.com with the subject of 'opt out of arbitration' and a link to your profile in the body. That's it, we'll handle everything from there.

We're looking at something possibly more robust, but the ability to do it via email should hopefully address one of the larger concerns. As e-mail is the most basic and intuitive method, it'll always remain a valid method to opt-out, even if something new is introduced.

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