> The entire notion of being allowed to enforce arbitrary terms of service is absurd. There are probably a handful of terms everyone agrees are reasonable (no attempted hacking, rate limits, do not break laws) and everything else should be unenforceable.

Why? Why should a government prohibit private parties from agreeing to anything other than those 3 things?

> Especially garbage like what you're allowed to do with the stuff you get from the service even while not using the service, or about setting up competing products. It's like McDonald's selling you a burger and telling you how to eat it.

It is vaguely like that, but but I'm not sure the analogy facilitates understanding of this subject. McDonalds shouldn't tell you how you can eat your burger, therefore... companies must not enforce any terms on their services aside from those things. Why?

I'm not saying any term should be enforceable. Contract law has a long history against that. I just wonder how and where you draw the line and what existing law is insufficient.

>Why should a government prohibit private parties from agreeing to anything other than those 3 things?

because ToS have been long used to demand unreasonable things and threaten people with expensive lawsuits. The advantage of companies losing bullying power significantly outweighs the disadvantage of less business freedom

ToS are normally "contracts" (hard to even call them that) between a large corporation with very high resources for a lawsuit and an individual with very low resources. The power imbalance makes challenging ToS for the individual unfeasible in 99% of cases

> Why should a government prohibit private parties from agreeing to anything other than those 3 things?

Because a severe power imbalance allows for abuse, and governments should prohibit such abuse.

https://en.wikipedia.org/wiki/Unconscionability

"Inequality of bargaining power is generally thought to undermine the freedom of contract, resulting in a disproportionate level of freedom between parties, and it represents a place at which markets fail. "

https://en.wikipedia.org/wiki/Inequality_of_bargaining_power

> Why should a government prohibit private parties from agreeing to anything other than those 3 things?

> I'm not saying any term should be enforceable. Contract law has a long history against that. I just wonder how and where you draw the line and what existing law is insufficient.

This is not a magic list of 3 things that I think is complete.

I think there is a compromise between allowing companies to add arbitrary terms, including some which are enforceable but (by my feeling) unreasonable, and excluding unreasonable terms completely with a blanket ban, which no doubt would result in some companies being unable to add reasonable terms that are not in the list.

I think if we picked the 3 terms I outlined in my comment, the result would be a more pleasant situation than the one we have.

You could just say I disagree about what is an enforceable term. The point of the analogy is to show how ridiculous I find the current judicial reasoning, which is something along the lines of "if you don't like the term, you don't have to use the service, so it doesn't really matter how restrictive the terms are". I really think this is how particularly US judges think about this sort of thing, and I think it does a lot of harm to society. People find it obviously unreasonable for McDonalds to say how you can eat your burger, or for a book store to say what you can do with the information in your book, but when a service tells you how you can use the data you get from them, it's fair game. It's ethically inconsistent.

Because the power is disproportionally concentrated with one party - the service provider. The users of the service are numerous, comparatively small and uncoordinated.

In a situation like that, users have no means of resisting egregious terms, and no you cannot pull up stuff like "if you don't like it, don't buy it". As I wrote, the users are uncoordinated, and would take a huge effort to coordinate. Boycotting services rarely works (if ever). So what we end up with is that legal teams employed by firms optimize to shove as much bullshit into ToS as they can, the users grind their teeth and bear the bullshit, and get shittier service. Nobody really wins, because I'd argue the marginal gain for the company is minimal at best from this.

The government is not there just to enforce laws, but also to legislate such that the scales are balanced. Otherwise we may as well live in a dictatorship.