Clickwrap/Clickthrough Agreements

A Message to Colorado Educators from CDE's Data Privacy Office:

Following the announcement that In-Person Learning in Schools would be discontinued for the time being, an abundance of online Education resources emerged to support Educators in their roles.   

Please deliberate the following as you consider online Education resources, especially those requiring your agreement via Terms of Service (ToS): a Clickwrap or Clickthrough Agreement.  (A clickwrap or clickthrough agreement is a digital prompt that offers individuals the opportunity to accept or decline a digitally-mediated policy.  Privacy policies, terms of service and other user policies, as well as copyright policies commonly employ the clickwrap prompt. Clickwraps are common to signup processes for social media services like Facebook, Twitter or Tumblr, connections to wireless networks operated in corporate spaces, as part of installation processes of many software packages, or in other circumstances where agreement is sought using digital media.  https://en.wikipedia.org/wiki/Clickwrap) 

Although convenience is not a courtesy offered by a Clickwrap or Clickthrough Agreement…

One study estimated that reading all terms for all of the privacy policies you encounter in a year would take more than 200 hours.  https://www.thompsoncoburn.com/insights/blogs/internet-law-twists-turns/post/2014-10-28/what-are-you-giving-up-when-you-click-a-click-through-contract- 

The initial consent to Apple's terms of service would fill roughly 225 iPhone screens.  https://www.thompsoncoburn.com/insights/blogs/internet-law-twists-turns/post/2014-10-28/what-are-you-giving-up-when-you-click-a-click-through-contract-

…Know what you are agreeing to! READ the Agreement!

            Here are some of the things people have consented to when they clicked on "I agree":

• That all disputes will be heard and decided in the courts of King County, Washington,
• That they accept the app or service "as is" and without any warranties,
• That they give up all rights to their first-born child, and
• That they convey all rights to their immortal soul.

This summer a provider set up an experimental WiFi hotspot in London, and, in return for free wifi, asked customers to agree to terms and conditions that included a promise "to assign their first born child to us for the duration of eternity." Predictably, a number of people signed up.  https://www.thompsoncoburn.com/insights/blogs/internet-law-twists-turns/post/2014-10-28/what-are-you-giving-up-when-you-click-a-click-through-contract- 

Because when you elect, “I Agree”…

We have all, at some point while online, clicked on a button bearing these words. Whether it is registering for a new social media account or just trying to get to our bank statements, one almost cannot visit a website today without eventually being asked to agree a listed set of "Terms and Conditions." But by clicking on such boxes, or even in some cases just by using the website, we as online users may be binding ourselves to legally enforceable contracts with the online service provider (i.e. website, MMORPG, etc.).  https://www.eff.org/wp/clicks-bind-ways-users-agree-online-terms-service

Guidance from the Privacy Technical Assistance Center (PTAC) on Clickwrap Agreements:

Extra steps are necessary when accepting Click-Wrap licenses for consumer apps. Schools and districts sometimes can’t negotiate agreements with providers of consumer apps, and are faced with a choice to accept the providers’ TOS or not use the app. Extra caution and extra steps are warranted before employing Click-Wrap consumer apps:

• Check Amendment Provisions. In addition to reviewing for the above terms, you should review the TOS to determine if the provider has retained the right to amend the TOS without notice. If the provider will be using FERPA-protected information, schools and districts should exercise caution when entering into Click-Wrap agreements that allow for amendment without notice, given FERPA’s requirement to maintain “direct control” over the use and maintenance of the information under the school official exception. It is a best practice to review these agreements regularly to determine if any provisions have changed, and if so, to re-evaluate whether to continue using the service.
• Print or Save the TOS. When accepting a Click-Wrap agreement, you should save a copy of the TOS that you have agreed to. You can either download and save a digital copy, or print and file a copy.
• Limit Authority to Accept TOS. One potential issue with Click-Wrap agreements is that they can be easily accepted, without going through normal district or school approval channels. Individual teachers may not understand the specifics of how the provider will use and secure student data. Districts or schools should develop policies outlining when individual teachers may download and use Click-Wrap software.