It's a wild and crazy notion that almost surely wouldn't work. Nonetheless, I can't help but be intrigued by an idea that a number of readers have suggested: personalized credit cards with our own sneakwrap-countering EULAs printed on them.
"What we need is a EULA credit card," wrote one reader. "Instead of the name of your bank or your favorite sports team, the front of this custom credit card could be printed with nearly-microscopic legalese -- a personal EULA. The agreement would state that its terms take full effect whenever an entity or an agent of that entity accepted the card -- or its associated card number -- as payment." What the EULA terms be? "How about disclaiming and disavowing all the odious restrictions found in most common EULAs, and creating a binding contract that the entity is responsible for safeguarding your private data and is forbidden from sharing it with others? ... At least for starters. Oh, and retaining the right to sue for whatever you personally feel merits a court case, in whichever jurisdiction you choose."
Another reader suggested much the same idea, but she felt the terms could be kept relatively short and sweet. "The principle thing you would want to negate is the mandatory arbitration clause, so you would just need a short statement to the effect that you retrain the right to sue," the reader wrote. "That, and perhaps a statement that any later modifications to the agreement must be approved in a writing by both parties."
Of course, one problem is the fact that the financial institutions that issue credit cards are themselves among the most prolific users of mandatory arbitration clauses, which could make finding a bank that would be willing to issue such a card unlikely. But several readers have pointed out that personalized major credit cards are available with one's own picture on the card, so why not one's own EULA?
Still, what are the chances that, if you were involved in a dispute with a merchant who had accepted your anti-sneakwrap credit card, that your terms would be enforced by a court? Somewhere between slim and none, according to the legal experts I ran the idea past, particularly if the terms were the individual cardholder's personalized handiwork.
"I think you'd need the cooperation of a bank that would issue the card," wrote one attorney. "In all likelihood, the rejection of merchant terms would have to come through the bank's relationship with the vendor and, I suspect, IF you could get a bank to buy into this, the bank wouldn't be able to get vendor cooperation. And if the bank put the legend into its payment terms with the vendor unilaterally, vendors simply wouldn't take the card. So I think the only way to do this in any effective way would be to get VISA, MasterCard, or some big -- or perhaps new -- consortium to buy into the idea that merchants should not inflict mandatory arbitration on this consortium's customers."
So trying to create our own personalized credit card EULAs might be a lot of work to no effect. On the other hand, I'm not sure there would be much harm in trying, and the effort might send a very strong message that we're tired of all the sneakwrap terms all kinds of businesses require us to deal with. So send me your ideas for what an anti-sneakwrap credit card EULA should say and how it might work, and we'll go from there.
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