The New Social Contracts

Abstract

Contracts rule our digital world. Platform terms of service determine speech rights, privacy rights, and much more. This is no accident—from the very beginning, the U.S. model of internet governance was explicitly built around private ordering. In this context, it is worth asking what contract law and contract scholarship have to say about the public harms of digital dealmaking. The answer, quite surprisingly, is: not much. To be sure, the rise of the digital economy has generated over two decades of sustained scholarship and several huge national reform efforts aimed at updating contract law. But this work has largely focused on the procedural fairness of online agreements—especially mutual assent to clickwrap. If ever there were a case to be made for contract law to interrogate both the substance and the social impact of an agreement, today’s platform terms of use are it. These are society-wide pacts, and while they are in part commercial agreements outlining the terms of a market exchange, they are also—unlike other commercial contracts—the basic ground rules for our digital society. Moreover, our public laws, from our speech laws to our surveillance laws, often defer to these private agreements, giving them the power to supply and even to supplant constitutional norms. This puts contract law in an uneasy place—effectively leaving private law as the chief protector of public values on the internet. Having contract law play this role is not the first-best solution. Yet as long as we allow contracts to rule our digital society—as long as our internet policy is contractarian—contract law will and ought to play a larger role in policing the public impact of these agreements. In a sense, that would mean building a more public-minded contract law of the sort imagined by scholars going back to the Progressive Era. The alternative would be to give contracts less power to set public rules online. Choosing between these options will require comparative institutional analysis of a kind that is not common in law and technology debates.