Resilience: Building Better Users and Fair Trade Practices in Information

I. WHAT IS RESILIENCE? A. Building Resilience in Systems: The Software Ecosystem B. Building Resilience in Users II. RESILIENCE, CONTRACTS, AND FAIR TRADE PRACTICES 1N INFORMATION A. Resilience and Contracts in Technology-Mediated Spaces B. Fair Trade Practices, Privacy, and Technology Contracts 1. Experience in Digital Contract: Creating a Plain English "Information License and Security Agreement". 2. Emotion in Digital Contract: Creating a Sense of Transparency in Formation with Summary Labeling 3. Modeling: Imposing Digital Reasonableness Standards 4. Feedback Loops in Digital Contract: Offering a Live Human to Negotiate and Explain Terms .... 408 III. CONCLUSION A long-running joke about the law asserts that that the practice of law would be more pleasant if it weren't for all those pesky clients. In the world of technology, a more terse version of this same sentiment exists: PEBKAC--Problem Exists Between Keyboard and Chair. Technologists often long for "better" users of their products. Naturally, the logical reaction to this type of statement is to encourage developers of products to engage in better usability testing of their products on actual consumers. However, a deeper question may lurk beneath the superficial flippancy of PEBKAC. Is there in fact a way that we can "build better users?" This Article argues that there is. Despite a long running discourse regarding the resilience of infrastructure and networks themselves, a portion of the discussion that has been neglected relates to human resilience--buttressing the resilience of users of technology and the role of law in furthering this goal. Borrowing lessons from developmental psychology and securities regulation, this Article expands the concept of resilience into the software and digital contracting ecosystem. It argues that technology law and policy can be tooled in part to adopt an explicit focus on building users' resilience and sense of self-efficacy, particularly in connection with data privacy and information security. Technology law and policy can help to train consumers to be confident users and bounce back from technology problems. With the assistance of strengthened fair trade practices in privacy, contract law offers one avenue for explicit trust-reinforcing mechanisms to assist consumers in becoming more resilient users. I. WHAT IS RESILIENCE? Many of us have found ourselves in a situation where we did not understand how a piece of software worked behind the scenes on our machines. We wondered what exactly we had agreed to when we clicked "yes" on the user agreement, whether we could really trust the code, and whether we understood the extent to which data would be collected about us. For some of us, a mild panic followed. Yet, in these moments of privacy "freakout," we had no one to ask. Reading a privacy policy--to the extent we understood it--likely yielded only more questions. We found ourselves cursing the software product as "creepy" privacy-invasive code. Meanwhile, the technologists who write software frequently feel equally frustrated by the way we, the consumer base that uses their products, interact with these products. In other words, a perception gap exists between the way that builders of technology tools perceive their products and the way that average consumers perceive these same products. The reason for this disconnect can be understood as a deficit of what developmental psychologists might call resilience. This resilience, or ability to recover and flourish in the face of obstacles, is frequently absent on both sides of the software equation--both in the code writing process itself and in consumers' ability to overcome technology obstacles when using products. A. Building Resilience in Systems: The Software Ecosystem The concept of resilience has long been prevalent in systems literature. …