What a tangled web of legal niceties and hypothetical interpretations
we've woven here. But the moral arithmetic, toward which European
thought is tending, is more brutal and something to which American
corporations had better pay serious attention to if they want to keep
playing this game.<p>In general; we hold that "ignorance of law is no excuse", yet in
contract law _capacity_ is a key construct, and ignorance very much
_does_ play a part. It's not just minors, the mentally-ill, or those
incapacitated by drugs or alcohol, discombobulated or bamboozled by
other means, who cannot give consent in a contractual relation. In an
age where most lawyers and judges, like everyone, mindlessly
click-through "agreements" and shrink-wrap EULAs, there's a strong and
growing argument to be made that non-expert adults lack genuine
capacity to understand technologically mediated relations.<p>In other words, it's the contract law that underlies this stuff that's
coming up for revision, not the surface interpretations. The important
matter now is not deliberating whether the letter of the law creates
"consent" on this or that occasion, but whether the spirit of the law
allows for consent even in principle, given societal standards of
digital literacy and the complexity of modern digital interactions.