OPINION:
There was a time in America when people had enough common sense to make sure they read every word of a contractual agreement before signing on the dotted line, knowing full well the potential consequences of failing to live up to the terms.
In the digital age, looking someone in the eye when sealing a contract signing with a handshake has been replaced with electronic signatures and “clicking here” if you agree.
Most consumers lack the patience or discipline to read the thousands of words of confusing legalese thrown at them and have defaulted to blindly agreeing to whatever terms are proposed in order to access the latest website, app or software.
Making things worse has been Big Tech’s leveraging of this advantage over the ill-informed modern consumer to cross the line in a variety of ways, including Samsung’s alleged practice of unlawfully procuring biometric data by using facial recognition technology to collect biometric identifiers of every face detected in the photographs stored on a customer’s Galaxy device.
If true, this would be a clear violation of the Illinois Biometric Information Privacy Act and could have added repercussions. Biometric databases are increasingly targeted by hackers and foreign adversaries, so establishing clear guidelines around the collection of such data is critical.
Perhaps one reason that Samsung feels that it can operate in such a brazen manner is that according to a petition and accompanying motion to compel arbitration filed last October, 49,986 Samsung Galaxy device users claim: “For nearly a decade, Samsung has included a forced mandatory arbitration provision and class action waiver in its terms and conditions wielding it as a shield to successfully evade class actions and, more importantly, liability.”
Although there can be several benefits to limiting class-action litigation in favor of arbitration, such as efficiency, cost savings, confidentiality, and individualized resolutions, the approach Samsung has taken reeks of bad faith.
The company is trying to escape accountability — not just from class-action liability, but from the arbitration system they set up in an attempt to do just that.
In the specific instance occurring in Illinois, the alleged victims of Samsung’s overstepping have banded together in an attempt to circumvent the tech giant’s strategy for providing itself cover from liability.
The nearly 50,000-strong coalition claims that “now, when tens of thousands of customers finally level the playing field by simultaneously filing individual claims in arbitration, Samsung refuses to honor its contract to arbitrate and, worse, tells the arbitral forum that Samsung — a company with approximately $21 billion in net income last year — will only arbitrate if the individual consumers pay its fees.”
Maybe because we’re living in an era of decreased common sense, we really shouldn’t be surprised by these actions from Samsung. We should probably expect to hear stories like this one in Illinois or the situation surrounding Uber’s ill-informed, politically motivated business decisions.
In a poorly thought-out marketing effort, Uber Eats temporarily waived delivery fees only for food ordered from Black-owned restaurants in order to compel app users to order from these establishments rather than the predominantly non-Black-owned choices. It should come as no surprise that customers and other business owners felt this was unfair and discriminatory.
For years, mandatory arbitration clauses have been included in Uber’s contracts with both consumers and employees. The company has used the clauses as a preparatory measure to enhance its position in the event of a dispute not unlike the one that many have referred to as “FeeGate” by establishing predetermined dispute resolution procedures.
But this, too, backfired on Uber, as a New York state appeals court denied Uber’s request to block the American Arbitration Association from initiating the arbitration process for a total of $92 million in fees to handle about 31,000 arbitration demands.
In its legal filing, the association summarized Uber’s attempts as a legal shell game, stating: “That Uber now wishes to avoid the consequences of its agreement in these proceedings is unfortunate, but it is no excuse for Uber to demand a bespoke process more to its liking.”
In the end, however, for the consumer, the balance between class-action lawsuits and arbitration is a delicate one that cannot be allowed to be manipulated by multibillion-dollar tech behemoths.
Consumers must continue to challenge practices that restrict access to justice and hold these corporations accountable in order to prevent the scales of justice from tipping in favor of the few at the expense of the many.
This will be the only way to truly ensure that this major accountability failure by irresponsible corporations comes to an end.
• Julio Rivera is a business and political strategist, cybersecurity researcher, editorial director for Reactionary Times, and a political commentator and columnist. His writing, which is focused on cybersecurity and politics, has been published by many of the most respected news organizations in the world.
Please read our comment policy before commenting.