How companies weaponize the terms of service against you

A striking development has emerged in artificial intelligence. Today, I’m talking with Brendan Ballou, founder of the Public Integrity Project and author of a new book, called When Companies Run the Courts, about the rise of forced arbitration. Brendan’s actually been on the show before — his previous book, Plunder, was about private equity taking over huge swaths of American life, and that conversation is among our most popular episodes. Forced arbitration is similarly everywhere in modern life.

 Deep in every single terms of service for almost any product you buy or service you use there’s a clause that says that by buying or using the thing, you’re giving up your right to join a class-action suit if something goes wrong and instead you and the company have to go to arbitration. Verge subscribers, don’t forget you get exclusive access to ad-free Decoder wherever you get your podcasts. You can sign up here.

Technical Details

There have been some really high-profile cases these past few years highlighting how deeply unfair these clauses are to consumers. One you’ll hear Brendan talk about — which we also covered here on The Verge — was the very sad instance where a man’s wife died of an allergic reaction after eating at a Disney World restaurant. When the man sued, Disney tried to force him into arbitration instead, arguing that because he’d signed up for streaming service Disney+ many years earlier, he’d waived his right to sue.

Disney changed their tune after massive public pushback, as you may remember. But there are thousands or maybe millions of other, lower-profile instances every year where consumers and employees have completely lost their right to redress if something goes wrong. Brendan’s book really delves into how and why we got here — spoiler: we can blame Antonin Scalia for some of it — but also, most importantly, what we might be able to do about it in the future.

Brendan and the Public Integrity Project are also in the early stages of legal action against Paramount over possible quid pro quo with the Trump administration in the Warner Bros. So we had to start by talking about that. Okay: Brendan Ballou, When Companies Run the Courts.

Industry Implications

This interview has been lightly edited for length and clarity. Brendan Ballou, welcome back to Decoder. I’m excited to talk to you.

The last time you were on the show, we introduced you as a former DOJ prosecutor in the Antitrust Division. We talked about your book Plunder, which was about private equity. You’ve got another cheerful deep dive out on the rise of arbitration in America; the book is called When Companies Run the Courts.

I really want to talk about that book; I have a lot of thoughts about terms of service agreements and arbitration. But it turns out you’re here right after the Public Integrity Project has launched a big new initiative. You filed a lawsuit against Paramount over the Warner Bros.

This advance offers important signals about the future of the sector, and the tech world is watching closely.