Aaron Williamson's webl

Last night, I wrote a simple Django application for managing clickwrap legal agreements. I’m developing the artists’ submission system for the Conflux Festival’s new site (which is not yet live), and we require artists to agree to an Artist Agreement before submitting entries for the festival. Since this sort of process is relatively simple and extremely common, I decided to write a reusable app rather than just work the logic into my submissions application. (I took a quick look around and as far as I can tell nobody else has put out an application for this purpose, but I may be wrong and if I am you should tell me in the comments.)

The goals for this application are/were roughly:

• Give developers an easy way to check whether a user has agreed to a particular agreement when the user accesses a view. I decided the best way to do this was through a decorator, like so:
  
@requires_agreement('terms_of_service')
def any_old_view(request):
...


• Keep versions of each agreement and record users’ agreement to each, so that the site maintainers have a log of which terms bound a user at which date, and the decorator above can determine whether the user has signed the *latest* version of the agreement.

I implemented both of the above features in version 0.1. What I want to do next is build in a feature I think is best practice for any site that maintains terms of service or a privacy policy:

• When a user is asked to agree to an updated version of an agreement that user has already signed, display a diff of the old form and the current one so that the user can easily see what’s changed.

If you don’t do this, and your site gets big enough, EFF will do it for you. In my opinion, it’s a matter of fundamental respect for users — if you reserve the right in your ToS to make periodic changes to the agreement (and there are good reasons to do this), you should give your users clear notice of those changes.

Unfortunately, the most common practice is to change the terms silently and leave users to seek out a tiny link in the footer if they want to find the current terms. Another common, far better practice is to display the new terms upon the user’s first login to the site after the new terms become active. But few (edit: very few) users read the original terms, much less remember them, so even upon a careful read-through they may have no idea what’s changed. By giving users a diff of the old and new terms, a site makes itself accountable to and builds goodwill with its users. It may also strengthen the legal effect of its terms by giving users actual notice (although courts have been all too ready to enforce online agreements with little to no notice).

Like many copyright lawyers, I often begin my research into a given question of law by turning to Nimmer’s treatise. I approach Nimmer exactly as I approach Wikipedia — I anticipate a solid overview of the relevant issues, direction of my next steps, and some wrong or incomplete information. A high school student would be remiss to rely on Wikipedia alone for his paper research, and I would commit malpractice if he relied solely on Nimmer’s summary of a point of law, but both of us can save some time by referencing these meta-sources on our first pass.

An outline of the possiblities

These superficial similarities prove little, but they at least raise the question of whether we could make a treatise like we made Wikipedia. In broad strokes, the projects are identical: take an enormous information resource historically prepared by a small number of experts (in this case only one!) and subdivide the work between a large quantity of lesser lights. None of these could write the thing on his own, and many of them will contribute one sentence or dependent clause that is dead effing wrong. But their efforts in aggregate will produce more and timelier information on a wider variety of topics than those of the sole treater, and obtain a relatively high average quality.

Particular problems and solutions

On closer examination, the legal treatise is different from the encyclopedia in a few important ways. First, the knowledge necessary to contribute usefully to a legal treatise is concentrated in far fewer noggins than that necessary to contribute to an article about… anything at all. Second, lawyers may have on average less disposable time in which to edit wikis than the general population. But hough we like to consider ourselves something of an elite class, everyone else knows that there are a lot of goddamned lawyers in this country. More importantly, there are a lot of goddamned law students in this country. And all self-aggrandizement about our heroic struggles through law school aside, those students have a lot more free time than lawyers. Avoidance of homework is the single greatest motivator of YouTube video-reply generation and Facebook profile-padding among high school students; law students are no less eager to join the prosumer former audience. What’s more, law students (particularly around finals time) are turning out treatise material nearly every day. Yes, it’s simplistic, latin-engorged, low-grade treatise material, but these deficiencies are more than made up in volume. And Clay Shirky told me these things are supposed to start bad.

Lawyers do this too. The low-level associates who are not combing warehouses for receipts are endlessly summarizing the most basic points of law for lazy partners — this stuff is treatise gold. Which brings me to the third important difference between lawyers and encyclopedists, which is that much of a lawyer’s work is protected in one way or another by privilege. But this objection seems to me easily overcome. Publishing notes from or even sections of documents prepared for clients, to the extent that they contain simple summaries of the law, need not raise any confidentiality concerns or expose the entire document to discovery (this is why we have redaction, right?). Besides, one need only quickly survey the wretchedly-named blawgosphere to see that lawyers are constantly blathering about the general issues they encounter in their work for clients (simultaneously demonstrating that lawyers aren’t really so hard-up for Internet dicking-around time).

Previous efforts and missteps

This has all been suggested before (and again). It has sort of been attempted. The Cornell Legal Information Institute’s Wex and the Wikilaw project are legal information wikis, but seek to provide more general legal information to the general public. EFF’s Internet Law Treatise is the closest thing to an actual test case, but the approach taken so far has maybe missed the point. The ITL has been online for a nearly a year and a half, but write access has been “invitation only” that whole time. The predictable consequence is that all of the edits in the last month except for two were made by Kurt Opsahl, the ITL’s founder. The rationale for this cautious approach is likely related to the project’s disclaimer — a (usually healthy) fear of a malpractice suit by someone who relies on the treatise as legal advice.

But there is no “right” time to open a wiki to public editing, except “right away.” As Shirky puts it, “the key to creating [the] individual actions [from which collective information resources are built], is to hand as much freedom as possible to the average user.” Anybody needs to be able to add a stub, update a page to include a summary of a recent decision, or introduce factually or legally erroneous information. If it doesn’t start bad, it probably won’t start at all (as Shirky’s case study of Nupedia illustrates). The need for the disclaimer is undeniable, but if it’s inoperative on a small scale, it will be inoperative on a large scale and the legal wiki created by lawyers is a non-starter. But I think such disclaimers are adequate, and need to be adequate if the legal profession is ever going to do anything interesting with new information tools (a potential alternative is truly anonymous posting, but this introduces policing problems and will probably discourage contributions as much as it encourages them).