Mobile portable public toilet WiFi provider Purple recently added a “Community Service Clause” to its usual terms and conditions for wireless service:

The user may be required, at Purple’s discretion, to carry out 1,000 hours of community service. This may include the following:

  • Cleansing local parks of animal waste
  • Providing hugs to stray cats and dogs
  • Manually relieving sewer blockages
  • Cleaning portable lavatories at local festivals and events
  • Painting snail shells to brighten up their existence
  • Scraping chewing gum off the streets

More than 22,000 people accepted these terms during Purple’s two-week-long T&C gambit, with only one attentive person claiming the prize Purple offered to anyone who noticed this silliness. Purple conducted this experiment “to highlight the lack of consumer awareness when signing up to use free WiFi.” Winners include snails, local parks, sewer lines, and stray dogs and cats, now the potential beneficiaries of up to 22 million community service hours.  The clear loser? Those. Who. Don’t. Read. Notices.   

Surprised BabyThis phenomenon is well-documented.  In their 2016 research study The Biggest Lie on the Internet: Ignoring the Privacy Policies and Terms of Service Policies of Social Networking Services, Jonathan Obar and Anne Oeldorf-Hirsch found that study participants failed to carefully read the privacy policy and terms of service for a fictitious social networking site, NameDrop. Three quarters of participants used “quick join” to bypass the privacy notice altogether.  Those who “read” the notice took on average only 73 seconds, rather than the 30 minutes it would have taken at a normal reading pace. And 98 percent of participants totally missed NameDrop clauses that (1) allow data sharing with the NSA and employers, and (2) require providing a firstborn child as payment for service access.

So why bother if noone reads them?  Well, though most folks don’t read privacy notices and terms of conditions in the transactional moment, if something goes bad, they’ll read them later … with their lawyer.  Regulators read them too.  The Fair Information Practices Principles of Notice/Awareness and Choice/Consent have been the bedrock of privacy law for decades, with this self-regulatory approach deemed by many to be the least bad alternative to direct governmental regulation of specific privacy practices in the private sector.  And the FTC appears to be doubling down on Notice and Choice, with its shift in FTC Act Section 5 enforcement from unfairness to deception.

Which brings us back to what for me is the most important aspect of the Obar & Oeldorf-Hirsch study mentioned above – that it would take a person, reading at a normal pace, a full 30 minutes to read the NameDrop privacy policy.  No wonder most all didn’t read it fully, much less understand it.  Among other challenges, it appears that we have a readibility problem.  That’s confirmed by a 2016 EU Commission study on consumers’ attitudes towards online terms and conditions, which found that shortening and simplifying T&Cs more than doubled readership, improved understanding, and increased trust.

The Flesch Reading Ease Test has been around for over half a century, and though a bit of a blunt instrument, it quantifies readibility. It also rewards fewer words per sentence, fewer syllables per word, and less passive voice.  The higher the score, the easier it is to read the text:  a score between 30 and 50 equates to a college-level reading ability; between 50 and 60 is at a high school reading level; and between 70 and 80 indicates a 6th or 7th grade reading level. Flesch Reading Ease has even found its way into legal requirements for readibility, such as California Financial Code Section 4053(d)(1)(J), which generally requires the text in privacy consent forms to have a Flesch Reading Ease score of at least 50.

Yes, a score of 50 is surprisingly hard to achieve with all of the baggage that privacy notices are commonly expected to carry.  But consider these Flesch Reading Ease scores for other, impactful texts:

  • Abraham Lincoln’s Gettysburg Address:  65.4
  • Martin Luther King’s I Have a Dream Speech:  67.1
  • Hemingway’s A Farewell to Arms, Chapter 1:  94.9

So, take a look at the readibility of your privacy notice, and if it can be shortened and simplified, give it a try.  Your inner-Hemingway will be glad you did, as will countless firstborn children.