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We’ve listened to what you’ve been telling us about the arbitration clause that our most recent ToS update introduced. While we can't incorporate all of the feedback you offered, we did listen to it, and got with our legal experts and higher-ups to see what we could deliver as a compromise.

We realize that a fair amount of dissonance seems to be coming from us not diving too deeply into our reasoning for implementing an arbitration clause in the first place. We’re going to try and put some more color around that in the most lay terms possible.

Unfortunately, that means that this post is going to be a little long winded, but we sincerely hope that you read it completely, even if you find yourself disagreeing with some or even all of it. We're still willing to talk; we hope this finally does a good job of explaining our position so the conversation can be more productive.

First, we want to address what was pretty clearly miscommunication on our end:

  1. People objected to the notion that you had to use arbitration to settle disputes, but thought we could drag you into court. That’s not the case — we are both agreeing that if we have a dispute and can’t resolve it between us, that we will settle the dispute through binding arbitration. The only carve-outs are for small claims court, and for certain IP-related actions (which others noted were in need of a carve-out). The language to address all of the possibilities for carve-outs is simply way too long to put in a single document, if you have a specific concern, you can opt-out. We'll try to add more clarity if you need it, but we can't advise you. If you still have concerns, opting-out is most likely the best thing to do.

  2. People felt that both parties should be able to influence the selection of the arbitrator. This is also in place. JAMS' Consumer rules require that, “The arbitrator(s) must be neutral, and the consumer must have a reasonable opportunity to participate in the process of choosing the arbitrator(s).

  3. There were concerns that users had to come to New York to pursue arbitration. This is not the case. While the arbitration will be based out of New York, you’re entitled to participate from your hometown. JAMS rules say “The consumer must have a right to an in-person hearing in his or her hometown area.” There are also provisions for attending remotely, if that’s what is required.

  4. Some folks seemed to think that this eliminated users’ recourse to force any payment or remediation if we do something bad. This is a misunderstanding of arbitration. Arbitration requires users to bring claims to an arbitrator instead of the courts. If those claims are deemed valid, the arbitrator can award damages, and those awards are binding — we have to pay them.

Most of all, you wanted to know why we'd include arbitration in the first place.

You want to know why the heck do we even need this in the first place? Why are you so committed to doing this? We feel that’s a fair, and probably the most relevant question; we’re going to try to answer that. As with all things legal, it starts out with well, that’s kinda complicated, do you have an hour or two? Let's make it take less than that.

While we may have done our share of goofing things up in the past, often by not communicating things clearly or far enough in advance, we’re asking that all of you try to keep in mind that we’ve done our best to show extremely good nature through the sum of our past actions, and ask that you please consider that separately from your feelings concerning arbitration.

We hope you can try to keep in mind that this isn’t something we want to do (no one is enjoying this), it’s something we actively resent needing to do, along with our current legal climate, and that makes it all the more difficult for us to keep saying that we feel like we must do it.

We offer our sincere gratitude in advance, as we get on with it:

In the event of litigation, arbitration is likely to be the best choice.

We are non-litigious in nature because we rely on goodwill from strangers, and allow anyone to earn our trust through their contributions. That’s the only model that’s going to work for us. At the same time, we have to take some reasonable steps toward a defensive posture in hopes that’s all we’ll ever need to do. Remember, the vast majority of people actually using the site as intended are essentially anonymous touches.

In the event of an actual case, arbitration helps because:

  • Arbitrators typically have more industry knowledge. JAMS arbitrators are former judges that are selected based on their area of expertise. In contrast, federal judges are selected randomly, and may or may not have a particular area of expertise. The JAMS process ensures that the person arbitrating is the most qualified.

  • There’s fast resolution. Our judicial systems, being what they are (in most cases), can’t really tout that as a selling point. This minimizes our costs in advance, and lets us put “war chest” money to better work for stuff that you can actually use.

  • JAMS is well-respected, fair, and reasonable. You can and certainly will do your own diligence in research, but even things like allowing for remote participation (preventing mega corps from selecting locations too onerous for other parties to attend) speaks to the process having a clear goal of fast and fair resolution. You can’t guarantee the fast part with the courts, and fair might come down to how much domain knowledge a judge has.

Arbitration isn’t new to our ToS; It has been a concept for a couple of years.

We already have an arbitration-like process in place as a Privacy Shield certified company; this is an expansion of that policy that has been in place for a little over two years (well, since Safe Harbor was replaced by Privacy Shield). Privacy Shield is an ADR, like JAMS.

In a nutshell, every effort should be given to come to a resolution outside of an actual court process. Actual litigation, where papers get filed and judges preside, becomes a thing only if an agreement can’t be reached. It is in the interest of every party concerned to try to come to an agreement prior to asking a judge to settle it.

With JAMS, there’s no second step; arbitration absolutely has to work, and we see no reason to fear otherwise; arbitrators are (again) typically better versed than sitting judges in this domain because arbitrators are selected for their expertise in particular matters rather than having cases assigned to them randomly, and can handle cases at least equally fairly, if not more due to expertise, and certainly more expeditiously.

We don’t want things to come to litigation, ever.

We don’t want things to ever come to actually having a case in litigation, nobody likes it. That means, as we grow and become more profitable, we have to protect ourselves to some degree against frivolous lawsuits. While some have listed companies within the realm of our industry that do not have these clauses:

  1. That is their own risk assessment, based on advice of their counsels, with their strategies for the next 10 years in mind. Most of the companies referenced by folks as examples of entities in our industry that do not have a similar clause also don’t have offerings around jobs and employment, that’s a subtle but pretty important difference.

  2. That doesn’t mean they aren’t considering it, or didn’t consider it. We all have different goals and we all anticipate things that could hinder those goals differently. Some also have much bigger wallets and war chests than we do.

  3. We aren’t exactly unique in preferring to completely avoid litigation whenever possible, but we may be more adverse to it than others, and thus perceptively more paranoid. In some situations, litigation doesn’t need to be technically successful in order to ruin a business, it only needs to burn through resources. As more and more bad actors base success not on winning a judgement, but running the other party out of funds, we have to protect ourselves as our increasing profitability makes us a more threatening target.

  4. We owe it to you, the people that have put hundreds — more often thousands — of hours of work into our sites, to maintain a conservative legal profile that is exactly sufficient to avoid litigious engagement in today’s legal climate. We don’t update documents like this through knee-jerk panic reactions to industry buzz, but we also can’t allow ourselves to fall short of a sensible or reasonable level of protection.

An opt-out was put there specifically for those we trust and who trust us.

Once you read the terms and go through the opt-out process, we’re going to go out on a limb and decide that you’re not the kind of entity that we need to be worried about. We’re going to make opt-out easy for anyone with a profile on the site.

Send an e-mail to team@stackoverflow.com with the subject of 'opt out of arbitration' and your real name, your mailing address and a link to your profile(s) in the body. That's it, we'll handle everything from there. You'll get confirmation back via email.

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.

If you positively, absolutely, categorically, undisputedly, and undoubtedly despise arbitration, you can opt-out right now if you want and forget about it completely.

More transparency is coming so that we continue to earn your trust.

We really do appreciate how vocal and, quite frankly, precise you’ve been in your arguments both agreeing and disagreeing with our decision to pursue this. As much time as we’ve spent on it, we still firmly believe that having this is likely to save us considerable amounts of time and resources in the future. We hear your arguments that simply dropping it would serve our short-term interests well, but our long-term interests get even scarier if we do that.

Most of us tend to hate the need for this stuff, which tends to make us hate the means to avoid it. The payback for all of this effort is, if effective, absolutely zero. That we don’t get hauled into a frivolous class action lawsuit that we’re forced to spend time and money escaping is a negative that we won’t be able to document. It’s something that we hope won’t happen, so the payback in terms of what we can hold in our hand for all of this effort is essentially zilch. That stinks, but that’s the way it works.

As GDPR nears, and our other policies update, we're pretty confident that a more benign picture will emerge when it comes to our stance here. A lot of work to make, essentially, nothing happen, isn't work that was wasted. Staying out of litigation is a net gain that's hard to measure.

Our approach to this was exhaustive, even if it seems otherwise.

We’ve discussed this in every imaginable context with our lawyers and we definitely feel that this is protection that we really can’t do without, but we want you to know, we’re looking at this as a shield, not a sword, and we hope that the world’s legal climate only gets better, not worse.

And while you might say “that’s exactly what someone holding a sword would say”, people with nefarious goals don’t tend to be overly-transparent about those goals or their motivations. This policy doesn’t in any way change how we perceive or interact with all of you; it’s intended to be a net to make sure all of those darn mosquitos don’t get in the way of that.

Moving forward.

We’re still, as always, open to questions about it. We’re rebooting a few things on our end, and we’ll update this post once the new version goes live (and emails are scheduled to go out). Thank you, all, for your very generous and civil input on this stuff, and for (most of you) assuming the best intentions on our part through this.

If you still have concerns, remember, opting-out will be simple. This post doesn't mean we've stopped listening to you, or that we've stopped caring, we've just done our best to reconcile our goals and strategies with the very clear objections that you've raised. Could we still do better, given what we've explained? Let us know. The new terms will go live once we get the opt-out in place, and notifications sent.

And remember, if you still feel apprehensive, you can opt-out. We'll update with the window (and demarcation point) as soon as the revisions and notifications go out.

  • 136
    The electronic opt-out method doesn't seem particularly secure. What's to prevent someone else from opting me out? Or prevent someone from scraping every single profile link and opting everyone out? This seems like a very thrown together and not well thought out solution to community kick-back... – Ethan Field May 10 '18 at 13:22
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    What happens if I send an opt-out email that contains a link to someone else's profile? This opt-out mechanism seems open to abuse. – Sam Hanley May 10 '18 at 13:22
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    We're willing to risk email as the only method right now because we're pretty confident that we couldn't deliver something more comprehensive in the amount of time you'd be willing to wait for it, and get the policy in place in time to match up with other changes we're making for GDPR. It wasn't a tough choice as it was the only choice. – Tim Post May 10 '18 at 13:25
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    @TimPost security > time urgency – jhpratt May 10 '18 at 13:29
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    @TimPost, honest question - has your legal department evaluated the fact that your opt-out mechanism isn't secured to ensure the opt-out requests actually come from the user in question? I find it beyond credulity that lawyers would be comfortable with asserting that anyone's opt in/out status holds legal weight under that system. – Sam Hanley May 10 '18 at 13:33
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    @TimPost Will there be some sort of reply to our email or mark on our account where we can confirm that we've opted out? – Zasha Faith May 10 '18 at 13:33
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    @TimPost no one is arguing for snail mail! We want a secure, electronic means to opt out. – jhpratt May 10 '18 at 13:36
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    @TimPost The point is, I could go set up a MailChimp campaign now and opt out every single user on the platform without their knowledge. Compare that with printing a letter, folding it, sticking in an envelope, licking the seal and posting it for every user on the platform. I don't know about you, but my tongue would be very chapped. This method is far, far too easily abused. – Ethan Field May 10 '18 at 13:38
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    @jhpratt When the more secure means rolls out, we can very prominently say "Thanks for opting out" and have you opt back in again, if that's what you want. The consequences of someone abusing this are way lighter than the consequences we'd face if we didn't deliver this update and means to opt out today, I firmly believe that. – Tim Post May 10 '18 at 13:41
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    An easy-to-set-up opt-out that can't be spoofed is not difficult to implement. Create a Meta thread called "Arbitration opt-outs" that people can post an answer on saying "I opt out of arbitration". Instead of monitoring emails, monitor new posts on that thread. Then you effectively have the same process as you've just implemented, but with opt-outs authenticated via the site's existing login system. Job done. – Mark Amery May 10 '18 at 13:56
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    @EthanField Correct me if I'm wrong, but even if someone did impersonate you and opt you out via email, you're not then prohibited from going to arbitration. You would then have the option of court or arbitration. – Rob May 10 '18 at 14:11
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    @EthanField what kind of abuse are you worrying about? If someone could opt others in, that would indeed be a problem. But what conceivable problem could there be even in the unlikely case that someone opted someone else out? That would just mean you retain your right to legal recourse. Yay! What exactly did you lose? How can this be abused? I honestly don't understand the point you're trying to make here. – terdon May 10 '18 at 14:14
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    From what I can see; SE met the community halfway, and in far less time than the usual 6-8 weeks. This crazy discussion about abuse just feels like someone with way too much time on their hands finding something to complain about. My faith in humanity dropped a little today :(. As software developers we should all understand that adding a feature to a site; especially one as big as SE/SO will take a while. – BradleyDotNET May 10 '18 at 14:37
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    @TimPost "Arbitration allows users to bring claims to an arbitrator instead of the courts." Considering the ToS binds the user to arbitration, I would say that the word 'allows' here is dishonest. Arbitration in this case is not 'allowed', but rather 'required'. – TylerH May 10 '18 at 14:49
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    I have to admit that I have a hard time understanding how a company like SO that deploys to production multiple times a day is not able to quickly throw out a simple form having an “Opt out” button that requires one to be logged in and that then sends an automated email in the backend, making it safe against abuse. – I also like that GDPR is always being used as an excuse for changes being so time critical when it has been known that it would be coming for two years already. – poke May 11 '18 at 17:56

26 Answers 26

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I like how easy you've made it to opt out. It speaks well to the level of trust you've placed in your community, and, ironically, makes it less likely to be used. It's those companies that make it onerous to actually opt out that you really have to go through the effort to make sure you actually do.

That said, from a more pragmatic standpoint, I still think it's a good idea for everyone to opt out. Limiting your options for recourse is bad strategy, and I don't think there's anything that says you can't still agree to arbitration for any specific issues you might have.

And historically, arbitration generally goes in the companies' favour. While I currently think SE is going to be fair about the whole process, it's not in anyone else's best interest to take that at face value. Not when 95% of mandatory arbitration goes in the company's favour.

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    We would have absolutely no bad feelings if everyone that could read this and vote on it opted out. You're not the folks we're worried about, at all. – Tim Post May 10 '18 at 13:33
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    I think it would be easier to manage on both sides, and more GDPR compliant, to have the opt-out as a profile setting. – James May 10 '18 at 14:02
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    Smells like that's the plan, based on Tim's comment to my answer. – Journeyman Geek May 10 '18 at 14:13
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    You should grandfather every account with, say, 1000+ rep and more than 2 years here. – Theodore R. Smith May 17 '18 at 13:22
  • I signed up to an online newspaper subscription (and was quite happy) until I noticed the only way to cancel was to call them on the phone.... I cancelled on the spot. If they're capable of opening an account and taking payment automatically, they should be capable of closing an account automatically. – Basic May 23 '18 at 16:05
129

There were a lot of concerns around the opt-out mechanism and you've responded pretty well to that, IMO. Most of the comments right now are focused on that part of the issue. However, by far the most upvoted response to your original ToS post wasn't about the opt-out mechanism, it was about the need for arbitration in the first place.

The concern that others raised is simple: arbitration is an end run around the legal system with the entire process biased very heavily in your favor. In fact, it's essentially a way for you and other companies to create your own private legal system. That's not just my opinion, it's also the opinion of The Economist, a famously business-friendly paper. Their view is that arbitration as it currently works is one-sided and inevitably favors the company at the expense of the employee/customer.

Most of your argument comes down to: 'we have to avoid litigation and arbitration is a fair and reasonable alternative'. I don't see that you've argued either point convincingly. First, if avoiding litigation is critical, why do you keep saying "just opt out, we're not worried about the ones who do"? Surely those who opt out are potentially a bigger issue because they still have the right to sue? Why would a 'troublemaker' not opt out?

Second, I know nothing about JAMS but even if they're fair and reasonable today that just isn't a sustainable business model for them or any other arbitrator. JAMS is for-profit and they won't make money by being fair and unbiased; they'll do it by producing results that generate return business and attract new customers. In this case, you're the customer, we aren't. Even if JAMS today is a model of objective fairness (however you define that), what will they be like 5 or 10 years from now? What happens if they go public and suddenly have a bunch of shareholders demanding higher profits? To be clear, I don't see this as an issue with JAMS specifically, but rather with the entire arbitration industry.

Having said all that, you have a business to run in the real world and it's your decision. I think it stinks, but I don't know if people will feel strongly enough about it to quit SE (the Facebook issue: if you do quit, what's the realistic alternative?). Heck, I don't really know how strongly I feel about it! However, in the interests of trust, can you explain clearly why arbitration beats the alternative? And are there steps you could take to make arbitration more palatable? For example, commit to switching to a new arbitration provider every 3 years? Or publishing every decision in full?

tldr; IMO everyone should opt out immediately rather than encourage you and other companies to operate your own private legal systems.

  • 10
    I think you've done a pretty fair paraphrasing based on your reading and understanding. I also appreciate that you've acknowledged us weighing strategy and stuff against the icky parts of arbitration, such as what The Economist (and others) have talked about after recent breaches of data and trust. I tried to express that our biggest (and, in reality only) concern surrounded bad actors, or litigation used as a boat on fishing expeditions, and such - did that stand out to you as you read, and did it affect your opinion of our decision in any way? Thank you for posting, by the way! – Tim Post May 10 '18 at 16:12
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    why do you keep saying "just opt out, we're not worried about the ones who do"? - because the primary purpose is to protect against class-action lawsuits. Now anyone who wants to do that has to amass a large number of users who have plausible claim and a proof that each one did opt out from the arbitration clause. This is seen as sufficient deterrent. – artem May 10 '18 at 16:22
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    @artem Thanks, that's helpful! – Pondlife May 10 '18 at 16:30
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    @TimPost Thanks for the comment, the fishing expedition point didn't really come across clearly to me (and see artem's helpful comment too). Perhaps a fictional example would be a good way to illustrate it for everyone? I do agree that this is a very broad issue and if you want to go full meta, it's ultimately about corporatism, equal access to justice, and what sort of society we want to live in. I don't expect you to solve those questions :-) But it would be good if you could address the core need for arbitration more fully and explicitly; the opt-out mechanism is a lesser point, IMO. – Pondlife May 10 '18 at 16:41
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    public service announcement large number of comment upvotes does not make my statement true, I'm not a lawyer, I know nothing about true reasons why SO is doing this, it's not a legal advice, do your own research. – artem May 11 '18 at 3:56
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    Dude, I read your entire post before noticing tldr. That's not how tldr works. :) Good post. – whatever May 14 '18 at 16:24
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    @artem: Might be the case for US class-actions, but since this GDPR thing you also have to consider European class-actions suits. That's harder, since Europe has a few dozen independent law systems. The one i know is the Dutch, which definitely allows international class actions. And it doesn't require proof of opt-out; in fact under Dutch law you can opt out of arbitration even after it starts. So there generally can't be such proof in a class action as the opt-out might not even have happened yet. – MSalters May 15 '18 at 11:25
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    @MSalters Just to make things clear, I'm not StackOverflow, I'm just a user like everyone else. It's StackOverflow legal department who have to consider everything, and I assume they know where their risks are. Also, protection only against US class action suits could be all that they seek - the ultimate risk is that company loses such a suit and must pay monetary damages that exceed the value of the company (I've heard that in US court the jury could determine the amount of damages, and I'll hazard a guess that EU courts are more considerate in that regard). – artem May 15 '18 at 13:45
  • @artem: Yup, for the Dutch case in particular it's restricted to provable damage. And for a class action case, the damages would have to be similar. (Also, I know you're not StackOverflow; no diamond.) – MSalters May 15 '18 at 14:02
  • I feel strongly enough about it to quit. I am deleting my account in 5 days. and I am in the Top 2% on StackOverflow. – Theodore R. Smith May 31 '18 at 15:18
72

Thank you for reviewing your options and explaining the situation clearly to us.

One thing still concerns me and my inner optimist thinks it's not hard to fix. Here's the problem: I trust Stack Exchange today. You guys have always been great when I've had problems (including an extraordinary one) where your and my needs conflicted. If this were about the Stack Exchange of today, I'd accept that clause no problem and get on with my life.

But we don't know what's going to happen a year or five or ten from now. Stack Exchange might go in a different direction that raises user concerns, or might get acquired by a company with a less-good track record, or there could be some crisis that forces y'all to circle the wagons. I've been through that once with a volunteer organization that had a corporate entity, and it was bad -- we all thought we were there for the same reason and among friends, until we weren't, and after all attempts to resolve it internally failed, a group of members actually did have to go to court even though none of us wanted that. It was heartbreaking. I would have signed an arbitration clause with them when I joined, too -- good thing they never asked.

I would rather not opt out. I want Stack Exchange to not have to keep a huge war chest in case of wacky lawsuits, which are all too common in the US today. But if I opt out I'm opting out forever, and that's kind of scary.

So here's the request: can you find some way to allow us to opt out later? I don't mean an open-ended thing where anybody can opt out the day before filing a lawsuit; that would defeat the purpose. But if we had, say, an annual opportunity to review and opt out (or opt back in if we've changed our minds), that would allow those of us who think the SE of today is just fine to agree to arbitration without constraining us should Evil Overlords, Inc buy a majority share ten years down the line.

I accept that this approach still creates a window in which bad things could conceivably happen, but it's a very small window and I think there'd be earlier signs if the open, transparent, collaborative Stack Exchange we've come to know were about to change course.

Can you help us help you by not carving this part of the agreement in stone forever?

  • 6
    I upvoted for the insightful anecdone in the first half of your answer, but IMO the second half kind of undermines it. It's a nice idea, but I have a question I'd like you to consider: If the unnamed organization you wrote about had had an arbitration clause with an annual opportunity to opt-out, would you really have taken that opportunity before it was too late? – Ilmari Karonen May 10 '18 at 16:18
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    I certainly don't know the legal standing of it, but it seems reasonable to me that if one could allow opt-out of arbitration for any issue happening after the opt-out date, you'd avoid the day-before-lawsuit problem. – Peter Cooper Jr. May 10 '18 at 16:19
  • I can't really think of any way to implement such an opt-out that would be both broad enough to protect legitimate users if SE turns evil and, at the same time, narrow enough to prevent bad actors from using it too, which is what SE seems to fear. In fact, most approaches I can think of would make things easier for bad actors, since they could first opt out and then manufacture an excuse to sue. Most people with a legitimate grievance, on the other hand, presumably wouldn't even think of opting out before they were harmed. Of course, if anyone knows a way around that, I'd like to hear it. – Ilmari Karonen May 10 '18 at 16:21
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    You're never opting out of your right to seek arbitration later. You don't lose anything by opting out, and not opting out doesn't necessarily benefit us in any way, unless you're secretly an evil mega corp. Just because you opt out doesn't mean you have to go right to court if you've got an issue, you're still equally entitled to arbitration, you just don't have to start there. In most cases where people might be upset with us, we're pretty sure it could be settled even without arbitration to begin with. This catches when stuff starts going downhill, or was always meant to. – Tim Post May 10 '18 at 16:28
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    To be clear: If you opt out of arbitration now, and in a year from now have an issue with us that we couldn't settle without a mediator, you can totally still go to an arbitrator, and we're cool with that. Opting out just means you don't have to, you can go right to court if you want. – Tim Post May 10 '18 at 16:30
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    @TimPost I'm coming at it from a different direction. I don't want to be part of the problem (especially as an "ugly American" with our frivolous-litigation problems). I'd rather do what's legally beneficial for you; I just can't forecast the future. If you're saying that us users opting out doesn't actually hurt anything on your end, then that's different. – Monica Cellio May 10 '18 at 16:52
  • @IlmariKaronen there were signs of problems about a year before things went south, so yes in that case. That said, I just have the one anecdote, not data; I don't know what typical timescales are. For example, how long after an acquisition does a company under new management tend to turn evil? (An acquisition would definitely prompt me to opt out.) – Monica Cellio May 10 '18 at 16:54
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    It's rather common for contracts to give an opportunity or resolution in case of mergers and acquisitions, for one. – Nemo May 10 '18 at 17:05
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    “I don't mean an open-ended thing where anybody can opt out the day before filing a lawsuit; that would defeat the purpose.” Under French law, you could do that: arbitration clauses are not binding towards individuals (except maybe in contracts with other individuals). Stack Overflow is exploiting the weakness of the US legal system (why have class actions if a company can essentially opt out of class actions? It feels to me like such a clause is against public policy.) – Gilles May 10 '18 at 22:08
68

I see no mention of Europe at all except GDPR. How will you deal with Europeans? The world doesn't stop at the US border.

In my answer We're examining the implementation of arbitration in the 2018 ToS update I pointed out a few lawsuits that went belly up for Facebook.

And Germany is introducing sammelklagen, class action lawsuits. And with European guidelines, laws and precedents as they are you might want to make a different kind of wording for Europeans. A user only has to log in from Germany to be able to start a class action when the class actions are a thing here (you can thank Volkswagen's dieselgate for that).

Can you please address the European side of things?

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    There has been some strong suggestions that this is essentially unenforcable in the EU – Liam May 11 '18 at 14:54
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    Yea, I read that one too in my research for my answer I linked. Not just in dutch courts, also belgian, austrian courts, I believe german courts would have a field day too with their already strict laws. So I believe for europe there should be a seperate way of handling things. also because a large variety of developers are from Europe(guessing this from the survey insights.stackoverflow.com/survey/2018, where there were 10.000 more qualifying people from Europe than US) there would be a large overlap in jurisdictions where there are complaints/issues/ – Tschallacka May 11 '18 at 15:03
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    I agree here; everything is still written from a very American point of view. Whilst I understand that that's where SO is based, they're going through all this trouble of updating the ToS for a European law (the GDPR). No moderator has, as far as I could find in any meta post about the ToS/arbitration, responded to concerns from European users. I'd like to hear a response there, because as far as my non-juridical view is now, I have only seems arguments saying that the ToS are still not going to hold up in Europe, despite the new wordings. – Adriaan May 14 '18 at 9:45
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    I dunno, seems to be an all together good thing that Europe protects it's people from anti-consumer things like opt-out arbitration clauses. – David Mulder May 17 '18 at 14:58
  • I'm a US citizen living in the US who has previously logged into stack exchange from Germany. Does this mean that I could introduce or join a class action suit in Germany? – bendl May 21 '18 at 5:52
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    @bendl When in Rome, sue like the Romans do ... – Hagen von Eitzen May 21 '18 at 10:10
  • @bendl Read the paper i analyzed in the linked answer. I think the european laws also cover non citizens visiting. But a lot of variants of the same laws as they evolved were covered so I'm not 100% certain – Tschallacka May 21 '18 at 10:50
52

Is there still a 30 day opt-out period?

I'm confused by this:

And remember, if you still feel apprehensive, you can always opt-out.

(Emphasis in original). Does "always" mean "at any time" (ie, no 30 day limit), or "if need be"?

Thanks for the long post. Just surprised you didn't directly address the timing issue.

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    That's a bad choice of words on my end, doh. Fixed. "always" was meant figuratively, not literally, but took it out to avoid ambiguity. – Tim Post May 10 '18 at 13:47
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    I'd still appreciate a clarification on this. I take it the answer is "no, we didn't listen to the feedback regarding how short 30 days is or how those who want to opt out might not even know before the time is up". I really like how you stretch in our direction to make this palatable and all that, but I still perceive this to be a very aggressive timeline for those poor lusers who don't visit Stack Overflow every day. – tripleee May 10 '18 at 15:26
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    @tripleee I wonder if a workable loophole would be registering a new account to get the 30 day timeline started up, then requesting your existing account be merged into your new account. Would they honor the signup date of the new user or the old one? – TylerH May 10 '18 at 15:46
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    @TylerH To be honest, we'd be more inclined to assume good faith unless there was overwhelming clear evidence of shenanigans afoot, and just honor the opt out. We even considered extending it a bit to cover cases where people sign up, but somehow get locked out (there's like 10 ways that commonly happens), and it can take a week or more sometimes to get that fixed for them. So we'd go from whatever time you said you noticed the opportunity to do it, and probably make plenty of exceptions if good faith was obvious. – Tim Post May 10 '18 at 16:35
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    Thanks, Tim. Just for the sake of lawyering, when you say "we'd...honor the opt out", would that honoring be binding at the time? Like, SO would email back and say "ok, you've now opted out", with no opportunity for future reneging? (I'm sure current SO wouldn't reneg, but in 5 years when you've been bought by Facebook, everything will be different.) – Steve Bennett May 11 '18 at 2:39
  • @SteveBennett If they change the opt-out clause, you would need to be made aware of it and agree (even if agreeing is simply checking the box saying that you agree to their ToS). You can, of course, voluntarily choose to use their arbitrator if you wish. – forest May 11 '18 at 2:51
52

What exactly is the track record of JAMS and why should they be trusted?

Quick googling suggests that there are no public records, no oversight or regulation, and no reason to assume the arbitrator actually does what you claim they do, including, but not limited to, striving for fairness.

There's a separate answer which I originally perceived as too paranoid, but the more I google about this, the more I get the feeling that there are strong reasons for some skepticism about arbitration in the United States in general, and this specific arbitration service in particular.

Can you provide us with more data to explain why they were chosen, and how they have resolved consumer arbitration cases historically?

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    Think about it, who are their customers? And who will keep coming back to them if they consistently decide in their favor? – forest May 11 '18 at 22:02
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    Indeed. Arbitration is a conflict-ridden farce in the US, which is precisely why it is favored by sleazy companies like AT&T. – Fazal Majid May 11 '18 at 23:14
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    @FazalMajid and, apparently, SO. – GreySage May 15 '18 at 22:42
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    @tripleee The way arbitration works is 1) Corps shop around for other corps most likely to give them a favorable ruling (classic fascism). 2) All parties, esp the less rich (YOU AND ME) are required to sign BINDING Non-Disclosure Agreements usually with insane damage clauses (like $1Million if you talk online about it). 3) Corps pay more after arbiters side with them (dirty secret). That's why you will find NOTHING. – Theodore R. Smith May 17 '18 at 13:25
  • In a true Libertarian society, only the winner would pay the abitrator, keeping things fair and balanced. In THIS society, the corporations pay the arbitrator monthly and after award. It's heavily biased against fairness. – Theodore R. Smith May 31 '18 at 15:20
  • Yeah, capitalism would be a nice idea if it worked, but just look. – tripleee Jun 1 '18 at 5:08
45

We’ve discussed this in every imaginable context with our lawyers and we definitely feel that this is protection that we really can’t do without [...]

If possible, I'm interested in more detail on the above excerpt (emphasis mine). Can you elaborate on why binding arbitration is non-negotiable? It was previously asserted to essentially be the norm for free internet services, but as was illustrated in the comments, that's far from a hard rule. In several places in this post and in the comments, you point to the incoming GDPR rules as the source of the broad-based urgency. Is forced arbitration a requirement if the GDPR?

I'm inclined to believe that it isn't, since I'm not aware of a larger move where all online companies are adding arbitration clauses. If not, then why are these things (GDPR compliance and arbitration) required to be coupled? And more broadly, to the original quote, why is this something we "can't do without"? Has Stack Exchange been the source of a meaningful number of legal complaints in the past, or is this potentially a premature optimization?

Many groups, including the Electronic Frontier Foundation, consider forced arbitration to be unfair and anti-consumer. If this is being represented as a mandatory part of a legal compliance change but in reality it's a discretionary change that's simply being bundled in without thorough discussion, then the community is being done a disservice.

I'm also interested in the answer to one specific question I raised in the comments which has gone unanswered - you've asserted that you agree that the email opt-out system being offered is imperfect, but that it's necessary to meet the other requirements under the necessary timeline. In your discussions with the legal team, were they made to understand the degree to which this process is not secured against someone submitting an opt-out request for another user without their knowledge? Has the legal team explicitly signed off on this process as an acceptable way to capture legal agreement, even as a stopgap measure?

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    Arbitration is not a requirement of the GDPR that I know of. Having policy updates (many of them GDPR driven) appear and take effect as atomically as possible, however, is something that's super important for us. To the rest of it, I can only point out, it's not forced if you opt-out of it. Pulling on that string more drags it into a strategic discussion that I'm (quite frankly) not the best to present, and I'm not sure if it's something we'd want to completely illustrate in public any more than we have. The opt-out is there so we don't need to be evasive or obtuse, if that makes sense. – Tim Post May 10 '18 at 16:23
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    I appreciate the response. I hear what you're saying - but, as respectfully as I can say so - I still feel like there's an important difference between "Having policy updates [...] appear and take effect as atomically as possible, however, is [...] super important for us", and "the lawyers say we 100% can't live without it" (the latter being my paraphrase). There's a conversation to be had in either scenario, but I think that's an assertion that's really important to get right. – Sam Hanley May 10 '18 at 16:35
  • Additionally - any specific comment on the final question I raised? Either way, thanks for biting on this one. – Sam Hanley May 10 '18 at 16:38
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    what's confounding about this is the timing, for certain. On one hand, you have lawyers saying we 100% can't go without this, on the other you have GDPR really driving a timeline that requires us to have all of our stuff updated and in place at once, as there are dependencies to consider when it all comes together. They are two different discussions, but, well, as life would have it, they're coming to a head at the same time. – Tim Post May 10 '18 at 16:39
  • Regarding your last point, nobody was what I'd call happy about needing a stop gap, and it was primarily those of us engaged in the very negative responses our initial discussion met that pushed extremely hard to meet every reasonable demand we could as quickly as possible, including overwhelming concerns expressed that snail mail might be too onerous. You can still snail-mail opt-out a profile, so the risk is the same, but measures we have in place on our support platform mitigate a large part of the bigger surface email creates. The perceived risk to trust in our intent was greater. – Tim Post May 10 '18 at 16:45
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    And, quite honestly, we'd rather have shields at 94% and holding and still have people see us as a company that has humans working for it, deserving of their trust, than shields at 100% with a community that lost faith in our collective humanity as a company. Pushing this put that in question, pushing this without being insanely responsive to criticism and fears would have really damaged it. How you look at us matters more to us than the perceived risk, so yeah, I guess it was calculated. – Tim Post May 10 '18 at 16:48
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    @EvanCarroll, the simplicity is that the "justice" system of the courts is chancy at best, and even if you are totally innocent and are found innocent, getting caught up in it can cost years, millions, and your reputation. The vast distrust that you and other objectors seem to have in the arbitration process is all well and good and understandable, but how can it be that you have such deep and abiding faith in the righteousness of our court systems? Have you simply never read a newspaper or turned on a TV? Lawsuits can be (and are!) used to harass and damage; arbitration cannot be. – Wildcard May 12 '18 at 0:12
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    @Wildcard I've represented myself in front of a jury in lawsuits that have taken years. I'm aware with how the legal system works. As flawed as it is, Walmartzon Arbitration Co. sounds even worse and I'm not about to lick the boot and go with it if I don't have to. – Evan Carroll May 12 '18 at 4:34
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    @EvanCarroll, which is fine - that's why you can opt out. But your assumption of extreme bad faith and your belief in the overwhelmingly evil nature of the arbitration clause is unwarranted. – Wildcard May 12 '18 at 5:18
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    @EvanCarroll yes, I think that taking it for an unquestionably axiomatic premise that SO will go “full evil” and is obviously planning for that day already is unmitigated pessimism without any patina of reality. And yes, it not only exemplifies but epitomizes the assumption of bad faith. If your remarks are honestly felt and not conscious efforts to troll, I feel sorry for you: it’s not pleasant to go through life believing so thoroughly in the badness of your fellow Man. – Wildcard May 12 '18 at 9:13
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    @EvanCarroll Is this true? Is SO owned by the same company which owns Facebook, or did they just invest in them (and being a shareholder is not the same as owning the company)? How much stock (and influence) do they have in SO? If this is true, then chances are I will be leaving this site in the near future. – forest May 13 '18 at 7:18
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    Claiming that Andreessen Horowitz "owns Facebook" is a wildly absurd claim. Facebook is a publicly traded company with a $500 billion+ market cap, while A16Z is a VC firm with something like $2.7 billion under their management. Let's try to keep our facts straight here. – Sam Hanley May 13 '18 at 17:42
  • 1. They want to sell the company. 2. It is readily apparent that at least one suitor REALLY WANTS binding, non-disclosable arbitration AND no threat of class action lawsuits. 3. We can only guestimate what this new potential owner will do with all of our contributions. (Relicensing it as their own -and then- suing us on copyright infringement is a REAL possibility). – Theodore R. Smith May 17 '18 at 13:27
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    @TheodoreR.Smith They can't do that (even if purchased); our contributions remain our own; we just licensed them to SE. – BradleyDotNET May 17 '18 at 16:02
39

I'd suggest one small thing if possible. I know you guys are busy, but having a positive confirmation to the opt out back to the email might help with the "what if someone fakes my email?" crowd. At worst, you could mail back that you totally did not opt out. Considering we have an email on file, and you'd presumably want to send from the same email address it would help.

That's literally the most basic, simple way to confirm that things worked as designed.

Also, I don't want to dismiss anyone's fears but.

I don't think anyone has ever sued SE. Certainly not our core userbase. And trying to work out solutions that work for everyone is hard. Yes, it is a time of much eeek and drama - but I don't think many of the reactions are just about arbitration vs the ability to sue most users wouldn't use.

And if you did opt out, and you went "hey, SO corp, I hate your guts. Lets do that arbitration process you want to do" - If arbitration is the horrible long winded process that folks say it is, they'd go for it. If its the cheaper smarter option, they'd go for it. Opting out does not waive any chances of arbitration does it?

And in my experiences - with simpler, more straightforward cases, arbitration tends to be fast, and somewhat less traumatic. One of my old jobs had one with a client and it was considerably faster, and simpler than the court process. Anecdotal evidence of course, and between a small company and a less small company, rather than megacorps, or even medium sized corps, but in many cases it works well.

Also I'd like to say, threatening to request opt outs for other folks, cause you don't like the current TOS or the simpler opt out method is.. just not classy.

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    You'll get a response, and our system is pretty good at catching spoofs (if someone makes DNS lie, then, well, nobody can catch that). And when we make the function something you access from your profile, we'll prod you to review your setting, most likely, so the worst case is really narrow to begin with. – Tim Post May 10 '18 at 13:57
  • Not sure how this is related in any way to my post - what exactly are you commenting on? I've actually spoken for, not against arbitration as a way to settle disputes. Maybe you could have picked a more critical post to comment on – Journeyman Geek May 13 '18 at 17:45
  • Or just post your own answer. That is a totally valid way to deal with things – Journeyman Geek May 15 '18 at 9:15
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    What's the harm if someone else does opt me out? I can always accept arbitration if I want to sue. – Martin Bonner May 15 '18 at 13:06
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    Precisely - this was the same point I was trying to make. – Journeyman Geek May 15 '18 at 13:30
39

This update doesn't address the ethical and legal concerns for European Union users.

Apart from other aspects, the claim that an arbitration was already in place is disingenuous:

We already have an arbitration-like process in place as a Privacy Shield certified company; this is an expansion of that policy that has been in place for a little over two years (well, since Safe Harbor was replaced by Privacy Shield). Privacy Shield is an ADR, like JAMS.

Privacy Shield was just a quick workaround to avoid respecting a judgement of the European Union Court of Justice and will be almost certainly invalidated, so anything based on it is not worth the paper or bits it's written on.

  • Privacy Shield...will be almost certainly invalidated... That seems like a pretty good reason for a business to update its ToS, no? – Caleb May 10 '18 at 17:54
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    @Caleb updating is one thing, adding arbitration is another. – Nemo May 10 '18 at 17:55
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    Nemo, you may want to add that there is a related post on Law - law.stackexchange.com/questions/28180/… . Multiple users have already notice this clause doesn't play well with European laws and have brought this up on the older posts and in many chat rooms. Seems this point has been ignored completely and is not addressed by this update. I was planning a similar reply here, but since yours came first there is no need for dupes. – SPArchaeologist May 11 '18 at 12:22
  • Actually Privacy Shield is not Alternative Dispute Resolution; in fact is works by giving Europeans the right to sue in US courts. And since it's enacted by law, it takes precedence over ADR clauses in TOS. – MSalters May 15 '18 at 12:31
26

Most users here trust the Stack Overflow team (or we wouldn't still be here). One of the big concerns I repeatedly see regarding arbitration is the risk that SO gets acquired by someone less trustworthy and then abuses the arbitration clause to hide their own wrongdoings.

I think it would make a lot of people less uneasy if the arbitration agreements would automatically become void (and couldn't be reinstated for at least X time period) in the event of an acquisition, takeover, bankruptcy asset sale, etc. That way the agreement would ultimately be with your team, not with whoever happens to own the assets of the corporate entity at the moment.

When agreements like this can automatically and uncontrollably transfer to other unanticipated parties, the only safe way to operate is to assume the agreement is with the most malicious actor possible. That's not at all how we feel about you guys, and I really wish we didn't have to assume that the other side was acting in bad faith.

  • Then any possible buyer would have to subtract from the perceived value of the company, the perceived risk of sudden frivolous class-action lawsuits. Making a sale more difficult. – Wildcard May 12 '18 at 0:17
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    @Wildcard yes, that's the point of such clauses. If I grant a license or waiver to an entity, I may not want to be sold to someone else. – Nemo May 12 '18 at 12:33
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    StackOverflow has underwent numerous rounds of capital raising. Each one they sell of another large chunk. Now they've raised 70 million dollars selling to the Facebook guys. At what point do you say they've been acquired? They have such an extensive legal team right now that they need this clause before they can have any staff member actually explain why they need it to their own user base. I actually don't think the Facebook guys are any worse though. It's just tech capitalists doing the tech capitalist thing. – Evan Carroll May 12 '18 at 15:29
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    Actually with the last TOS change and this TOS change i am seriously starting to reconsider my trust. – joojaa May 12 '18 at 18:53
  • @EvanCarroll Acquisition has a specific legal definition, I believe it's something along the lines of when one company purchases another and the target company ceases to exist as an independent legal entity. Bringing on new investors isn't an acquisition because the original company still exists. – bta May 14 '18 at 17:03
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    @bta: The typical definition would derive from a "controlling interest", which usually is 50%+1 of shares, but can be different if there are multiple share classes. You describe a merger, in which corporate personhood ceases to exist. – MSalters May 15 '18 at 12:34
26

Thank you for your effort and attention to this issue, and my sympathies for the week you're having. It is appreciated.

I have three questions:

  1. Will the actual legal agreement of the TOS be updated to reflect the new email opt-out mechanism? As it stands, the agreement says "Your written notification must be mailed to us at Stack Overflow [address]" and "if you do not notify us in accordance with this paragraph, you agree to be bound by the terms of this section." The terms also provide that "These Public Network Terms represent the entire agreement between you and Stack Overflow." Since you've now created a new opt-out method not in accordance with the paragraph, it seems the terms should incorporate that.

    I'm fully confident that this is simply brand new today (and I thank you for your urgency) and that nobody is trying to pull a fast one here, but it doesn't feel great to have an opt-out mechanism explained only on meta that conflicts with the text of the legal agreement.

  2. Can you confirm that sending an email with the subject "opt out of arbitration" is entirely equivalent to the mail-in process, including opting out of the class action waiver?

  3. Given that this is something you "actively resent needing to do" (and to be clear, I do not in any way doubt that), why was this communicated to the community with less than a day's notice in fairly chipper terms ("pretty standard...procedural stuff...lawyer-y")? I can certainly appreciate that this was something you did not want but felt was necessary for the protection of the business, but that wasn't communicated at all. To be completely honest, it's hard to square an unexplained change to everyone's legal rights the same day it took effect with "extremely good nature." Would you approach something like this differently in the future?

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    Thanks for bringing up point 1. I was just in the middle of typing an answer to that effect. – Bardi Harborow May 11 '18 at 4:49
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    If they write a later meta post that ostensibly binds the company beyond the TOS, there's a significant argument for estoppel requiring an acknowledgement of any email opt-out sent between the posting of this post and any retraction of it, given that they also reserve the right to change the TOS at any time. – Nij May 11 '18 at 5:38
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    Regarding point 3: I resent the necessity to lock my house and lock my car. It's made necessary by the presence of ill-intentioned people (criminals) in the society. It's routine. Doing so is not evidence against my good nature. – Wildcard May 12 '18 at 0:19
  • @Wildcard, But that's not a vaild comparison. I can lock my house and car, but I can't break the laws of the country I'm living in regarding the well-intentioned people who come into my house or ride in my car, or violate their legal rights, and expect to just get away with because they 'agreed' to arbitration upon entering my house or car. Only online websites have been able to get away with this with any consistency, and even this practice very shady legally and likely to come tumbling down. If I were StackOverflow, I'd be immediately suspicious of any lawyers suggesting something like this. – ouflak May 19 '18 at 11:22
24

Profile Links in Email

tldr; one line works for all sites on the network.

It's at the account level, so an opt-out is for all sites. All site profiles attach to a main (central) account, so an update there reflects everywhere. We'll need to make that clear when we launch the form to do this, so folks don't get confused when they realize an opt-out on Stack Overflow was also carried over to Super User, etc. – Tim Post♦ 32 mins ago

I'm active not on one site, but on many including Database Administrators and others. Does providing a single profile link opt me out of binding arbitration for all of the sites affiliated with StackExchange, or just StackOverflow?

  • IANAL but I would not worry about this. There is a single agreement between you and Stack Overflow the company. As long as you have a single account, they can identify you from the profile on any one of the sites. – tripleee May 13 '18 at 9:52
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    It's at the account level, so an opt-out is for all sites. All site profiles attach to a main (central) account, so an update there reflects everywhere. We'll need to make that clear when we launch the form to do this, so folks don't get confused when they realize an opt-out on Stack Overflow was also carried over to Super User, etc. – Tim Post May 15 '18 at 15:41
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So just a hypothetical: Let's say Stack Overflow sells our data to some other corporate interest in a manner which pretty much violates the laws of every country of every user on this site. Those users have to individually go through arbitration and JAMS decides in Stack Overflow's favor in every case (which they should if they want to stay in business). So Stack Overflow has managed to avoid a potentially costly, and likely successful, class action suit/settlement.

Ok... but is that the point? I can see an arbitration clause perhaps in place for frivolous class action attempts, or even perhaps weak but meatier class action lawsuits that more cheaply lead to a settlement. Especially when that's an on-going problem. But wouldn't this also protect Stack Overflow from valid class action suits where Stack Overflow has clearly violated the law and the implicit legal trust of its users? And if so, why have the arbitration clause at all? It seems like it's only purpose is attempting to lay the groundwork for blatantly disregarding legal systems around the world. I'm not sure that's really in Stack Overflow's best interest no matter what the lawyers say.

In my opinion, you should tell your lawyers to take a day off and enjoy themselves, your treat. Then get behind some closed doors and discuss amongst yourselves if these people are really acting in your best legal interest. Something like this can potentially kill a website.

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    JAMS decides in StackOverflow's favor in every case (which they should if they want to stay in business) - this could be enough grounds to appeal and bring every case to court because the arbitrator is evidently partial and/or corrupt. No sane arbitrator would do this, if only to avoid expenses of being brought to court. – artem May 10 '18 at 20:04
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    @artem - Generally speaking, it's called "binding" arbitration because both parties agree ahead of time to be bound by the results. There is no appeal process. Attempting to appeal in a court will get the case thrown out because you agreed in advance not to do so. – bta May 11 '18 at 0:10
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    But so you are basically saying that no arbitrator can be trusted ever. That's pretty paranoid (though if you are in the US you probably need to be). – tripleee May 11 '18 at 6:21
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    @tripleee, I'm saying the opposite: That the arbitrator can be trusted to make a common sense decision in their own best interest. – ouflak May 11 '18 at 6:38
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    As with any product or service, there are two basically opposite strategies. You can sell it to suckers for a dime and trust that there are enough suckers, or you can actually put some effort into convincing prospective customers that you are trustworthy. You are basically saying all arbitrators will be in the former category. I'm assuming it's not impossible that some will belong to the latter. I have not looked into the history of JAMS but would presume that Stack Overflow have in fact done that, and might even be willing to share observations here. – tripleee May 11 '18 at 6:42
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    @tripleee, How does an arbitrator stay in business by possibly putting company after company after company, that have engaged their services, out of business? It's not lack of trustworthiness. It's the opposite. I trust that they would make the right decision every time. – ouflak May 11 '18 at 6:45
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    Look at how Tim is trying to persuade us that this is going to be impartial. Have you examined the arbitrator's track record to inform your opinion? If they have a history of strong bias towards favoring the paying client, this is extremely important information for this discussion. I for one would naïvely assume that an arbitrator with that sort of behavior would very quickly find themselves out of trust, and hence of clients. – tripleee May 11 '18 at 7:00
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    ripoffreport.com/reports/… this is looking rather unnerving, though. It's pretty old and vaguely kooky, but I see some similar sentiments in Google results for "jams arbitration track-record" ... this too: reddit.com/r/personalfinance/comments/71o13f/jams_arbitration/… – tripleee May 11 '18 at 7:18
  • @MaskedMan And choosing an "arbitrator" who is secretly completely under your control will not ever happen because ...? – tripleee May 13 '18 at 9:54
  • @MaskedMan Why is that unlikely? Capitalism tends toward oligopoly so it's actually increasingly likely that there won't be much choice. But that's tangential. It would simply be idiotic to let users choose arbitrators combletely freely, because this creates a colosal opportunity for abuse and dishonesty. – tripleee May 13 '18 at 10:45
  • @MaskedMan No, there is no claim of fairness. I'm just pointing out that doing what you propose would be even riskier than not having an arbitration clause, to the point where I'd call it stupid. – tripleee May 13 '18 at 11:16
  • Do you know about patent trolls? Do you know about organized crime? Even a vague understanding of how some organizations only exist to exploit whatever mechanisms they can find to extract money from victims should convince you. If t's not even illegal, that merely lowers the risk for them. This is not about risk from private individuals. – tripleee May 13 '18 at 16:37
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    @bta: binding arbitration is binding to the subject matter of the dispute. A conflict of interest is not tied to the subject matter of the case, but the independence of the arbiter. – MSalters May 15 '18 at 12:36
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This does not at all seem to address the problems I've pointed out, which are the third most highest voted answer to the earlier post.

In contrast the present announcement reads like you think people should rejoice in being subjected to the risk of you bringing an arbitration claim (which you're sure to win, since the arbitrator wants your repeat business!) against them:

People objected to the notion that you had to use arbitration to settle disputes, but thought we could drag you into court. That’s not the case — we are both agreeing that if we have a dispute and can’t resolve it between us, that we will settle the dispute through binding arbitration. The only carve-outs are for small claims court,

The exception for "small claims court" doesn't help the victim at all -- you can just choose to bring a large claim instead, and then you will get it ruled on by an arbitrator who is beholden to you.

It is nice to have a way to opt-out, but that's not going to help all of those who are not attentive enough to know that they need to "opt out" in order not to risk bring held responsible for unlimited legal claims on however flimsy basis, and will be judged to have signed away their right to have the claims against them decided by an impartial court.

Again: If you really are as benevolent as you claim you are, why would you insist having this sword hanging over your user's heads? Why not restrict the arbitration clause to claims that users bring against you, which seems to be all that is needed to address the rationale you're presenting?

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    How is the arbiter beholden to Stack Exchange? Point two above specifically says, "The arbitrator(s) must be neutral, and the consumer must have a reasonable opportunity to participate in the process of choosing the arbitrator(s)." If the consumer helps choose the arbiter, and the arbiter is required to be neutral... Please help me understand your concern. Can you edit your answer to address this specifically? – Catija May 11 '18 at 14:05
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    @Catija: The arbiter is a company that Stack Exchange has unilaterally selected, and which wants Stack Exchange's repeat business. Perhaps you get to give some token input on which of that company's employees is going to sign the award against you, but they all have an interest in ruling for SE and no interest in ruling for you. Given that SE pays their salary, it is impossible for them to be neutral, however much they may pretend to be. – Henning Makholm May 11 '18 at 14:07
  • IANAL, but as I understand it this is a restriction against the plaintiff only regardless of which party that is. So if they attacked you, you could still tell them, I don't want arbitration; take me to court instead. (Which is, of course, what they would have to do anyway if you didn't abide by the arbitration decision. Right?) – Wildcard May 12 '18 at 0:30
  • @Wildcard: That's not how I read the ToS, and not something I can see as a plausible meaning of what the ToS says. (As for the parenthesis, courts in the US consider agreements to arbitrate to strip them of authority to consider whether the arbitration result is right or not. As long as the initial agreement is valid, whatever the arbitrator decides is what the court must enforce). – Henning Makholm May 12 '18 at 0:33
  • Hmmm, okay, I've reread the terms and I see what you mean. It seems pretty far-fetched, but I'd be interested in a lawyer's commentary about the plausibility of such a scenario. Not interested enough to post about it on Law SE myself, but I would upvote such a post and read the answers with interest. :) – Wildcard May 12 '18 at 0:41
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Thanks you for listening to our feedback! I still have a few concerns, though...

I'm seeing a lot of people question why Stack Exchange would allow opting out so easily if it would mean that bad actors may potentially opt out as well. From what I understand, this arbitration clause, even with the opt-out, provide a sort of herd immunity against litigation for the company. Even if many people opt-out, the company is safe as long as the critical number required to join in a class action lawsuit cannot be found. Of course, a critical mass will never opt-out.

Let's say in 10 or 20 years as Stack Exchange "becomes more profitable", as you say, it ends up committing a massive privacy breach where a class action lawsuit would be in order. Even if many people opted out, there would be insufficient people to join in the lawsuit. In other words, even if we opt-out, the existence of the clause makes it such that we cannot exercise our rights unless a sufficient mass of other users are also able to exercise their rights. While I understand that the company is worried about frivolous lawsuits, I dislike the fact that arbitration applies to everyone, rather than just people involved in Teams, Jobs, or any future project where money changes hands.

I would like to thank you for taking the time to work with the rest of the company to make things easier for us and to address our concerns. I also understand that you have no malicious intentions. I do hope that your opt-out mechanism can be made secure for those who do not wish to use an insecure communication mechanism like email which lacks non-repudiation. I would hope the secure mechanism will be implemented as a prominent option under the site settings in the profile.


For posterity and in the case that I am unable to send an email to opt-out in the required time period, I hereby and in good faith state my desire to immediately opt-out of the mandatory arbitration clause first introduced in the 2018 Terms of Service update. I do not wish to resolve disputes with Stack Exchange, Inc through third-party arbitration, and I do not wish to waive my right to participate in a class-action lawsuit or any other rights it may restrict. I would like this to apply to all interaction I have with the services provided by Stack Exchange, Inc.

  • You only need about three people to start a class action, and then the class is "everyone who opted out". Are you are saying that such a class would be too small to justify the lawyers underwriting it? – Martin Bonner May 15 '18 at 13:10
16

Once you read the terms and go through the opt-out process, we’re going to go out on a limb and decide that you’re not the kind of entity that we need to be worried about.

and

What we're saying is, you're not the droids we're looking for. A subtle difference, but .. the fact that we don't look really worried should say we're not all that worried, but we realize it needs a sense of urgency.

I'm really, really confused. If we, the users, the community members, the ones who have to agree to the terms of service, are not the people this is targeting, then who are? There's a lot of vagueness here. Maybe it would help if you could cite an actual court case where a company got burned by something, to give an example of the problem you're trying to solve? Please provide an MCVE to demo the problem. =)

  • 2
    "You" = "the kind people on meta who are actually reading this". I think the point is that the shady folks who might attack SO in the future won't be reading meta. – Andras Deak May 11 '18 at 8:50
  • 13
    @AndrasDeak I think shady people who want to maliciously sue Stack Overflow would read the ToS and any other relevant documents very carefully? And thus they'd rather easily figure out how to opt out? So I'm super confused about who this optional clause could possibly protect them from. – jpmc26 May 11 '18 at 9:10
  • 2
    There were also remarks (maybe not from an employee, can't remember) that someone who wants to gather others for a large frivolous lawsuit would have to gather a lot of bystanders who also opted out, which is less likely to happen. Either way I can't tell if that hold any water, just noting my interpretation. – Andras Deak May 11 '18 at 11:52
  • @jpmc26, responding to your comment I think shady people who want to maliciously sue Stack Overflow would read the ToS and any other relevant documents very carefully —I don't think so at all. I think they will pick an easier target for their malicious lawsuit. Which is the point. Just like locking your car won't stop someone determined to burgle YOUR car (since they can just break a window)—that's not very likely, because most thieves are opportunistic. – Wildcard May 12 '18 at 0:24
  • 1
    @Wildcard I'm not sure filing a lawsuit is "opportunistic" by any stretch... They're necessarily expensive, drawn out affairs. Now, maybe threatening one, but I dunno how much this would help with that. – jpmc26 May 12 '18 at 2:02
  • @jpmc26, hard to threaten a lawsuit when you've agreed to binding arbitration. So yes, it would help with that. – Wildcard May 12 '18 at 2:22
  • @Wildcard Except it's opt out. Trivially so. – jpmc26 May 12 '18 at 2:26
  • So I guess it comes down to the question of whether a non-empty set of people would fail to opt out and then later become malicious, or select SO as a new target for their malice. Certainly if nobody anywhere were malicious, a lot of lawyers would be out of their jobs. – Wildcard May 12 '18 at 2:47
13

I sent a physical letter to opt out of arbitration before this was announced. Will I still get an acknowledgement? If so, will it be by email, or by physical mail?

Please answer at Will I receive any acknowledgement/reply of my arbitration opt-out letter, if I sent one before the electronic opt-out announcement was made?

13

JAMS' Consumer rules require that, “The arbitrator(s) must be neutral, and the consumer must have a reasonable opportunity to participate in the process of choosing the arbitrator(s).”

...

JAMS rules say “The consumer must have a right to an in-person hearing in his or her hometown area.” There are also provisions for attending remotely, if that’s what is required.

How are the current JAMS rules "fixed" with a version of the ToS? (I'd say they could change their "rules", as all the ToS says is that JAMS is the selected party for arbitration?)

10

I spent some time reading the whole explanation (question) and then I read through all the answers. The comments were fun to read and added some flavouring to the issue.

I then started writing an answer with options for each combination of being a StackExchange user with/without the arbitration clause, and what effect it would have on StackExchange for me and the community in the case of a class action lawsuit or a simple case in court. It was taking too much time, so I opted for the short write which I present here.


Summary

What it all boils down to for me as an individual:

  • Case with Arbitration Clause = win or lose
  • Case without Arbitration Clause = win or lose
  • Class action lawsuit with Arbitration Clause = lose
  • Class action lawsuit with no Arbitration = win or lose

So there is only one situation in which I definitely lose and that is when there is a class action lawsuit brought against StackExchnage and I am unable to participate (be a plaintiff), because I didn't opt out of the Arbitration clause.

The possibility of me suing StackExchnage or StackExchnage suing me is currently near 0%. (As of the 11th May 2018)

Should I Stay or Should I Go? (The Clash)


The Future

Now somewhere in the near future StackExchange might decide to change things. They might want to expand or sell to the highest bidder. Then a big NO-NO happens and the proverbial body-ejected-mass hits the fan.

What changes for me as a StackExchange user? Nothing.

Should that big NO-NO happen, then StackExchange as whole would possibly just cease to exist. I lose as a community member and have a slight chance of winning a small monetary compensation for work that I voluntarily submitted to the community, based on a decision I may have made in the next couple of days.

I don't think that is such a big deal.


Arbitration Clause Button

Here is a possible solution to the Arbitration Clause opt-in/opt-out situation. Add a three-way button to each user profile. Set the button in the middle (0) position. The user has thirty (30) days to either opt-out (-1) or opt-in (1) to the arbitration clause.

  • If a user doesn't decide to either opt-in (1) or opt-out (-1) of the arbitration clause after thirty days, then the switch is set to opt-in (1) and locked (greyed out).

  • If a user opts-in (1) then the switch is locked in the opt-in mode (greyed out).

  • If a user opts-out (-1) then the switch is locked in the opt-out mode (greyed out).

Any future change in ToS / ownership / ... allows the user to reset the Arbitration Clause Opt-In / Opt-Out button. The button is unlocked and is allowed to be set in another position for a certain period of time.

Could look a bit like this:

Arbitration 3 position slide switch example

Code is a combination of Toggle Switch (w3schools.com) and 3 State CSS Toggle Switch (stackoverflow.com)

  • The middle position would not indicate the timeout decision. On/off and enabled/disabled should be enough state I think. – ccorn May 11 '18 at 12:45
9

Can I try to articulate a TL;DR answer?

Reading between the lines a bit, I think this summarizes the situation for regular users.

The legal climate in the US is extreme and the introduction of paid service in the form of Stack Overflow Teams (née Channels) exposes the company to the threat of extremely taxing litigation.

Requiring these paying customers to agree to arbitration (using a third-party service instead of the extremely expensive and somewhat rigid legal system) reduces the risk for Stack Overflow.

As a regular user of the free service, you are no threat and regardless, accepting the arbitration clause is probably ill-advised.

You should opt out which means you continue to have the option to resolve any legal disputes with Stack Overflow through the standard official legal system.

  • 3
    Opting out does not indicate preference at all, except perhaps for having a choice in the matter. – Nij May 13 '18 at 10:14
  • @Nij Thanks for the quick feedback. How woud you change the wording? To my mind, choosing not to accept this clause is an act of indicating a preference, but you are probably right that I could try to improve the phrasing. – tripleee May 13 '18 at 10:18
  • 1
    @tripleee - rephrase your last sentence as "You should opt out which means you continue to have the option to resolve any legal disputes with Stack Overflow through the standard official legal system." – Martin Bonner May 15 '18 at 13:14
  • @MartinBonner Thanks, updated! – tripleee May 15 '18 at 13:25
4

I love the idea of arbitration: even the warning article one of the other answers linked to calls out how helpful it is in comparison to the US's court system. I've never personally been involved in a court case, but some friends of mine have, and even in smaller courts, justice takes forever.

However, I could see the need to opt out, if both:

  1. There was a possibility that Stack Overflow could do something to me for which I would need to seek legal recourse. (Right now there is not. If SO stops letting me come here to get answers to questions, I simply ask someone else. If SO leaders make fun of me, I simply let it go like water off a duck's back. If worse comes to worst, all I have to do is leave the Internet for a bit and go play outside.)
  2. The TOS forced a type of arbitration that was lopsided in SO's favor. Now this is the real question I'd like some SO folks to answer: How do we know the arbitration isn't rigged (see that warning article)?

But as long as that is handled, I say cool your jets everyone, opt out if you feel like you need to, but don't go trying to collect other people to opt out with you, and don't act like this is the end of the world (this is just a website, after all; it isn't like us community members are stuck in an employment relationship with SO).

  • 6
    There are a lot of things more helpful than the US judicial system. That doesn't make them good things at all. – Nij May 11 '18 at 1:33
  • 2
    This is a silly argument when it comes to companies breaking the law: "even in smaller courts, justice takes forever". Would you rather have a fast dismissal than a slow win? – pipe May 11 '18 at 7:44
  • 2
    The fact that "this is just a website" does nothing at all to limit the amounts that SE can demand in frivolous claims against their users, which users who fail to opt out don't get to get decided by an impartial court. – Henning Makholm May 11 '18 at 11:45
  • 1
    @pipe, agreed, a fast dismissal isn't very helpful, but which law is SO breaking with this process? – NH. May 11 '18 at 15:18
  • NH.: The point of a court case or arbitration is to handle situations where one party is breaking the law or legally binding contracts. So @pipe's point was just that if the company is at fault, the consumer getting their case resolved fast isn't (or shouldn't) be their first priority. – Nathan Tuggy May 12 '18 at 3:34
4
  1. People felt that both parties should be able to influence the selection of the arbitrator. This is also in place. JAMS' Consumer rules require that, “The arbitrator(s) must be neutral, and the consumer must have a reasonable opportunity to participate in the process of choosing the arbitrator(s).”

  2. There were concerns that users had to come to New York to pursue arbitration. This is not the case. While the arbitration will be based out of New York, you’re entitled to participate from your hometown. JAMS rules say “The consumer must have a right to an in-person hearing in his or her hometown area.” There are also provisions for attending remotely, if that’s what is required.

Both of these are in fact required by JAMS in order for arbitration to proceed with JAMS. But as long as the SE terms of service conflict with JAMS' requirements (specifically, by requiring arbitration to be held in NY, without giving any exception to this), JAMS may indeed refuse to arbitrate, but that would just push cases to the fallback option AAA, probably after a delay.

If AAA in turn has and upholds its own similar requirements, presumably the end result would be that arbitration could not proceed, even if both parties wanted it to, unless SE waived the requirement currently in the terms of service with every such case.

Or, of course, an exception could be made the other way, the consumer waive their right to a local hearing, and have to deal with the hassles of traveling to a hearing or setting up a remote hearing.

4

Personally, I'm having a hard time conceiving of a dispute that we could actually have that we couldn't resolve between us. Or for that matter a dispute that we could have. It's my understanding that all my answers and questions are licensed under the Creative Commons license. As such I consider them community property. As an unpaid volunteer, it's always an option to simply walk away and no longer participate. It's entirely feasible that you have employees who contribute here as well however. All this begs the question, Who is this designed to protect from whom? Granted I live in the USA (admittedly a highly litigious society). Personally, I've never been sued, perhaps due to the fact that I try to treat people with dignity and respect and don't do things that I would consider underhanded if they were done to me. For instance I never have (and never will) sell my customers data. I have nothing against arbitration, as the arbitrators I know are all principled individuals who weigh their cases on the merits and tend to side where logic would dictate rather than having a bias towards either side. So I guess I won't be opting out. Continue to treat me with the respect that you would like to receive and we won't have any problems.

  • 4
    I upvoted this as it expresses my views as well, but FYI, your questions and answers do not belong to Stack Overflow. You've licensed them under the Creative Commons license "cc by-sa 3.0 with attribution required." Check the very bottom of this page. – Wildcard May 12 '18 at 0:36
  • @Wildcard thank you for pointing that out. Answer corrected. – Elder Geek May 12 '18 at 16:56
  • 3
    Many legal disputes involve situations where both parties believed they were behaving appropriately, correctly, legally, and even respectfully at the time. I'm afraid this answer paints a disingenuous, even naïve picture of why we have a legal system. – tripleee May 13 '18 at 10:36
  • 1
    @tripleee Disingenuous? no. The opinion is genuinely mine. Naive? Perhaps, Sue me and see if I bother to hire an attorney. – Elder Geek May 15 '18 at 22:14
1

Given that you seem to fear mostly class-action lawsuits, I added the following to my opt-out mail:

Given the free nature of Stack Exchange, I hereby also declare that I or my legal representatives will refrain from joining any class-action lawsuits against Stack Exchange or providing evidence against Stack Exchange in class-action lawsuits. I or my legal representatives will also refrain from starting a lawsuit in the USA if Stack Exchange agrees to settle legal disputes in either a voluntary German arbitration public process (Schiedsstelle) or if unsuccessful/not desired, before a German court.

If you compare the financial damage compensation in Germany (which amounts to thousands of Euros at best) and the USA ($$$$), the decision which court you should prefer should be clear if it ever, ever comes to a lawsuit. I also added the number of my German identity card to prove that I am really the person who is linked with the account because many people have voiced their security concerns.

  • 10
    Weird. The fact that arbitration precludes class action lawsuits (assuming that the clause in the contract is actually binding) is precisely why I intend to opt out of it. I might tolerate a clause that mandated arbitration with the exception of class actions. – Gilles May 10 '18 at 22:13
  • 5
    @Gilles I am still able to bring a legal quarrel to court if I insist, but then it's personal. I see in fact too much abuse potential with class-action lawsuits where greedy lawyers try to convince as many people as possible to join even if it is frivolous. I do not support this system and therefore I do not join, even if it would be advantagous to me. – Thorsten S. May 10 '18 at 22:40
  • 2
    @Gilles: I agree weird. I'm more interested in opting out on general principal than even caring about class action or not. – Joshua May 11 '18 at 1:06
  • IIRC, german courts can decide to unite cases that arise around the same issue. With your declaration, you'd have to oppose such a move on formal rather than substantial grounds. I think that would be unwise. – ccorn May 11 '18 at 12:54
  • I'm looking for other ways I can disarm myself against big malicious companies with endless pools of capital to spend on attorneys, do you have any other ideas or is voluntarily opting out of class action lawsuits my only way forward? – Evan Carroll May 11 '18 at 18:05
  • 4
    @EvanCarroll You are by no way required to follow my path. And no, SE has currently not "endless pools of capital", they are still in a phase where a class-action lawsuit could break their neck. Given that SE's infrastructure allowed me to get out of hard spots which was worth gold and that for free, they don't owe me anything, I am the one who should be thankful. They accepted the opt-out, but perhaps the idea that people could see them as " big malicious company" and sue them on frivolous grounds has a point. – Thorsten S. May 12 '18 at 5:35
  • Just saying, don't lick boots for utility. They've burned through hundred of millions dollars of capital and they're owned by the same guys that fund Facebook. – Evan Carroll May 12 '18 at 5:49
  • 4
    @EvanCarroll Something tells me that you (and other persons) have really, really trouble to understand my decision which is quite sad. No, I did not get any advantage or privilege out of it, so try to wrap your brain around that. I suppose other deductions outside craziness, dumbness or foolishness are out of reach. – Thorsten S. May 12 '18 at 12:25
  • Class action lawsuits are the ONLY WAY the common man can, TOGETHER, fight large corporations!! You just gave away your MAIN CLUB in all future fights! – Theodore R. Smith May 17 '18 at 13:32
  • 1
    @TheodoreR.Smith This is one list of settlements for class action lawsuits. Notice something about the amount of money given in most cases? Read: Class action lawsuits do not benefit the common person, but greedy lawyers. IMHO the whole justice system in the USA is broken and I do not want to take any part in it. – Thorsten S. May 18 '18 at 5:34
1

How can we trust you to not conveniently "misplace" opt-out emails?

The eventual receipt of an acknowledgement email would be nice, but until it actually materializes, we have no way to prove that we actually did send an opt-out email.


If you trust me and do not mind revealing your email address to me, I will be happy to receive a Cc: at stackexchange.arbitration.optout@protonmail.ch. This is intended as a write-only address as a safety measure for the paranoid among us. I will be happy to share the password with someone whom the community wants to nominate -- please ping me in chat if you want to discuss this.

  • One could transparently forward ("bounce" for mutt users) a drafted opt-out mail to the above CC address without actually sending it to SE. Therefore such a CC proves nothing. – ccorn May 11 '18 at 13:06
  • What exactly would you gain by that? I'm not saying I'm convinced it's harmless, and technically you are right of course; but if you can explain why you think this is more than a theoretical problem, please do elaborate. – tripleee May 11 '18 at 13:15
  • Suppose you get a large number of CCs. Then the question "what does this prove" arises naturally. You cannot know whether the From: specs are authentic. A kid could have run a script just to create the impression of a close-to-100% opt-out rate. At least, one would need a confirmation email exchange, but an automated version of that could be abused for spamming... – ccorn May 11 '18 at 13:27
  • But the purpose of the Cc: archive is simply to have a witness for when you clam but I did send an opt-out email. The presence of one from someone who didn't actually opt out still seems harmless and at worst amusing. – tripleee May 11 '18 at 13:41
  • 7
    For what it's worth, I received an ack from Stack Overflow within a few hours. – tripleee May 11 '18 at 13:53
  • 6
    I received an acknowledgement within an hour. I can be fairly paranoid, but it's rather clear there's no massive secret scheme to not honor opt-outs here. – Zach Lipton May 11 '18 at 22:36
  • 5
    How can you trust them not to misplace opt-out letters? – Wildcard May 12 '18 at 0:33
  • @Wildcard Excellent point, and another reason to be grateful that they implemented an electronic opt-out mechanism. I don't think there is a conspiracy here, but having a witness improves my sense of security. – tripleee May 12 '18 at 8:48
  • @tripleee If one needs evidence that one sent an opt-out email, it is easy enough to write a witness statement to that effect. That is perfectly good evidence which will be admitted in any court. – Martin Bonner May 15 '18 at 13:18
  • For me, having solid evidence is certainly more reassuring than the assumption that a court will trust my word. – tripleee May 15 '18 at 13:24
-8
  1. They want to sell the company.
  2. It is readily apparent that at least one suitor REALLY WANTS binding, non-disclosable arbitration AND no threat of class action lawsuits.
  3. We can only guestimate what this new potential owner will do with all of our contributions.

Relicensing our past content as their own -and then- suing us on copyright infringement is a REAL possibility.

That's why I will be deleting all of my content and accounts across all StackExchange sites before June 3rd. And I have a 10,000+ rep on SO and have been really big on this community.

I refuse to let my good-will donations of knowledge and code fall into the hands of morally-ambiguous (at best) new corporate overlords who will do Who Knows What without the majority of the affected being able to do much if anything about it.

  • 3
    I'm sure you realise that you can't just delete all your posts like that right? I mean, you can try... but you're not going to get very far. – Cai May 17 '18 at 13:36
  • 7
    I speak on behalf of the company. Your first bullet is false. That doesn't leave the other two with much to stand on, but, that's not a big change from how things stood before I wrote this comment. – Tim Post May 17 '18 at 14:01
  • @TimPost So are you in fact saying that Stackexchange will never be sold? Seems like a quite bold statement. – joojaa May 20 '18 at 10:41
  • 1
    @joojaa: He didn't say that. The statement he refuted was that "They want to sell the company." – Keith Thompson May 20 '18 at 21:53
  • Anyhows, the code is licensed to Stack Overflow under a certain license and all the people who used it. You can't change the license for already released code just like that. You can decide to license code under other licenses under future release of code, it's your copyright. Stack exchange doesn't own the copyright. They just have a license to use your code for displaying/using/spreading etc.. The copyright is still yours. Stop being a conspiracy theorist Theodore. – Tschallacka Jun 5 '18 at 15:58

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