Consent of the Governed
Most of the time, increased efficiency is a happy trade for a minor loss of bargaining power. Until it’s not.
Earlier this week, I found myself teaching contract law with a whiteboard and markers. An old-school, low-tech, fast-thinking kind of teaching. When our building caught fire, my Arts and Entertainment class was displaced to a different classroom where I couldn’t work the tech. Without the narrative arc of my 104 carefully prepared slides, I had to focus on communicating what mattered most, and I found myself focused on consent.
Contract formation requires a few key steps. Miss one, and your agreement may be legally invalid.
Offer: One party makes an offer—“I will do or will not do [service, action, etc.]”;
Acceptance: The other party accepts the offer by word, signature, or action;
Consideration: Each party gives something of value to the other, usually service or funds;
Capacity: No one is a minor, mentally unable to assent, drunk, high, without agency, under duress, or being coerced to sign;
Legality: The contract’s purpose is lawful. Here, I usually explain that our New York clients can be paid in bags of weed but our North Carolina clients can’t. Marijuana is legal in New York but not in North Carolina.
At my firm, we add another factor:
Mutual Understanding: Most courts find intent to create a contract sufficient to bind the parties, but we insist that both sides understand every damn word before signing.
At my firm, we create understandings because we have a consent-based culture. Our approach blends traditional contract principles with a wide variety of influences from philosophy, practical experience, FBI hostage negotiations, BDSM principles, and more.
But everything we do stems from this paragraph:
“In the art world, the world “contract” is a red flag. People react emotionally and irrationally to it. A common statement by artists and dealers about contracts is, “I don’t want (need?) a contract with my dealer (artist?).” This is foolish because where there is an artist-dealer relationship, there is a contract. It is just that the contract is implied rather than expressed, that it is fragmentary rather than comprehensive, that its terms are supplied by a legal system that is not art world wise, rather than by the artist and gallery concerned. In other words, if you want a bad contract instead of a good one, the law will supply it for you. If you want a good one, you must make it.” - John Henry Merryman1
Merryman was a law professor at Stanford, and arguably the godfather of what we now call “art law.” (Read more about my man Merryman here.) Importantly, he started as a professor of comparative law; studied and taught the differences and similarities between the laws and legal systems of different countries. This seems to have given Merryman a practical, liberal attitude toward legal concepts other scholars approached with exactitude. He advises using what works best for the unique parties, and his wisdom always gets me to the right place by the shortest possible route, but rarely via a traditional path.
In the essay excerpted above, Merryman asks us to create “understandings” instead of “contracts.” What’s the difference? It’s obvious in the terminology—an understanding requires comprehension, but a contract does not. Unfortunately, the vast majority of agreements you make—yes, you—are contracts, not understandings.
There are two main types of contracts: bilateral and unilateral. When we think of a “contract,” we usually imagine a bilateral contract in which two parties negotiate, agree, and act upon a promise. However, the digital world depends on unilateral contracts, in which one party makes a promise to another party in exchange for a specific action.
By reading this text, you agreed to a unilateral contract.
Wait, what?
Your devices and the internet are subject to countless unilateral contracts. You know these as “Terms” (written variously as “Terms and Conditions,” “Terms of Use,” and “Terms of Service”). Did you update your Mac to Sequoia this week? You agreed to Apple’s Terms. Did you skim Disney’s feed on X for info about your upcoming trip to a theme park? You agreed to their Terms, which may stretch to cover an entity’s social media platforms, too. Ever walked NYC’s High Line? You signed away your likeness rights by setting foot on the stairs. If you appear on the High Line website or in its ad campaign, you have no right to complain because you agreed to be photographed and allow your likeness to be reproduced when you entered the park.
Every day, we agree to unilateral contracts with individuals and corporations, but we have no opportunity to negotiate the terms. Any expert will truthfully tell you this is necessary for a platform to function—Meta cannot possibly negotiate with every Instagram user for a license each time a user posts a photo to her feed. Technically, when you upload a photo, Meta has to make a copy of the photo to its server, and the friend has to make a copy of your image on his phone to view it in his feed. As you scroll past hundreds, maybe thousands, of images each day, you are looking at licensed images, and the license was granted when you assented to Meta’s Terms and Conditions. Internet communication and commerce would grind to a halt without these agreements. Most of the time, increased efficiency is a happy trade for a minor loss of bargaining power.
Until it’s not.
Last month, my friends and colleagues had a collective freakout about being “forced” to follow Donald Trump, J.D. Vance, and Melania Trump on Instagram. My social media was saturated with wrathful posts and paranoid Stories. This didn’t seem like a big deal to me; my friends were noticing changes in accounts owned by the federal government, not individuals, and changes were the result of new leadership. Happens every four years. The National Archives works with the incoming and outgoing teams. They’re pretty transparent about the process and Meta notoriously fallible. Weird but dumb—right?
The facts were clear, but the feelings remained:
“I’ve had to unfollow *more than once*.”
“I just really feel that especially with political stuff we should be allowed to make those decisions for ourselves.”
“Had to block them in order to make sure I am nowhere near that.”
Underneath all of this outrage: I didn’t consent to this.
Actually, each of these commenters “consented” to a whole lot—including contract modifications—when they agreed to Meta’s Terms of Service, and you agreed to Meta’s terms just by using Instagram. If Meta wants to make you follow Donald Trump, it can. You agreed to let them.
You didn’t read Meta’s Terms, did you?
Of course not. If you read all of the Terms you need to understand to fully comprehend your digital activities, you would have a full-time job reading Terms. (You might also die of boredom.) And yet, you are agreeing to these contracts without any true understanding of what you agree to in order to attend meetings (Zoom), order groceries (Whole Foods), buy mascara (Sephora), and chat with your friend in Spain (WhatsApp). The corporate lawyers that wrote these Terms can change the rules on you at any time because Terms inevitably carry a clause that says something like:
“We reserve the right to update any portion of our Site and Services, including these Terms, at any time. Posting the new Terms on the Site serves as notice to you of such amendments. Any use of the Site or Services by you after being notified means you accept these amendments.”
(That’s from my firm’s template.)
The feelings about being “forced to follow” certain accounts are interesting because they belie an assumption: we consent to agreements. Legally, you don’t have to read an agreement to consent to it. Again, this is practical: if courts allowed a party to invalidate a contract by saying, “I didn’t read it,” nefarious parties would constantly claim ignorance to get out of soured deals. Our judicial system places the onus on each of us to read, research, and comprehend before we commit. And yet, we feel like we should openly consent to all agreements, even though we say yes to things we don’t understand every time TikTok or Kindle updates. Why is this a fundamental assumption, despite the legal facts of life?
Every American middle school student learns that our entire political experiment is founded on consent. Remember your social studies teacher reading the Declaration of Independence? Jefferson wrote: “Governments are instituted among Men, deriving their just powers from the consent of the governed.” (For now, let us assume “the governed” are all legal persons subject to United States laws, which includes corporations and non-citizens. We’ll discuss the scope of “Men” another time.) “Consent of the governed” is a central tenet of democracy—this political tentpole holds that any government’s power is only legitimate if the people governed consent to such power. Consent to government stretches back to Plato, Hobbes, and Locke. It’s fundamental to most social contracts of political legitimacy. In the social contract theory of political legitimacy, people give up some freedoms in exchange for protection and the maintenance of order by the government. This is civics 101.
How should we understand such strong feelings about Instagram accounts? One could analyze users' rage at seeing Vance and the Trumps in their feeds as a digital reaction to an analog reality: “I didn’t follow them; I didn’t vote for them. Their political power over me may be legitimate, but Meta can’t force me to include them in my personal sphere.” I think that’s too superficial.
Instead, I think we need to attend to something more fundamental and frightening to understand these feelings.
We have to ask who is included among “Men.”
John Henry Merryman, Albert Edward Elsen, and Stephen K. Urice, Law, Ethics, and the Visual Arts, Alphen aan den Rijn: Kluwer, 2007, p852.