Comment by Erika E. Schinler
Everyone is familiar with the “telephone game,” a parlor game that requires a large group of people to line up and pass along a whispered word or phrase. As the original message is misheard, modified, and conveyed to the next person, the word or phrase that is shouted by the last participant is often a comically mutilated version of the initial utterance. However, the same unintentional-twisting-of-information premise that makes the telephone game so fun is obviously much less amusing when it occurs in a real-world, nongames context.
An argument can be made that a telephone game of sorts has been played with respect to coverage of the revisions to the Uniform Commercial Code (UCC or Code). What originated ten years ago as an engaging policy discussion generally concerning the role that the Code ought to play regarding the interests of consumers—protection versus neutrality—has deteriorated into an online muckraking campaign. Because it was impossible for the National Conference of Commissioners on Uniform State Law (NCCUSL) to create a hybrid commercial code and consumer protection statute that would adequately address the policy arguments on both sides, the Uniform Computer Information Transactions Act (UCITA) was promulgated with a few new protections for consumers. In general, it remains a pure commercial code rather than a consumer protection statute. Consequently, where the final draft of UCITA did not meet the demands of the consumer advocates in full, several activists assumed that UCITA was metatextually anticonsumer and that its drafters were, therefore, personally probusiness and anticonsumer.
The telephone game phenomenon is arguably the cause of UCITA being popularly perceived in cyberspace lore as an invidious eight-hundred-pound gorilla designed solely to benefit software vendors and Internet service providers at the expense of millions of helpless consumers. This is not to say that all or even most of the academic criticism of UCITA is meaningless or invalid. Rather, the telephone game argument pertains narrowly to anti-UCITA texts that are conclusory and serve only to function as “deal killers,” instead of as useful discourse.
The effects of the telephone game can also be seen in a much more powerful medium: A serious attack on UCITA was launched in July 1999 by some twenty-five attorneys general in the form of a lengthy letter to the NCCUSL (AG Letter). The attorneys general complained generally of UCITA's policy that seemingly “favor[ed] a relatively small number of vendors to the detriment of millions of businesses and consumers who purchase computer software and subscribe to internet services.” Further, the Attorneys General expressed “grave concern” as to several substantive areas of UCITA: (1) the interplay between UCITA as a commercial code and other state laws relating to consumer protection; (2) UCITA's use of “conspicuous,” both conceptually and as a defined term; (3) contract formation; and (4) contract modification.
While the AG Letter was probably written with the best of intentions, it: (1) demonstrates a significant misunderstanding of UCITA's textual meaning and effect; (2) argues that several terms of art and rules set forth in UCITA are poorly drafted, inadequate, deficient, problematic, and “fundamentally flawed,” notwithstanding the fact that such terms and rules have been used in the UCC and interpreted by the courts for decades without confusion; (3) concludes that UCITA actually takes rights away from consumers; and (4) implies that the drafters therefore have concealed their true biases and policy choices in order to encourage the rapid growth of electronic commerce and the software industry at all costs. The first problem with the AG Letter is that its alarmist tone demonstrates that the ten-year consumer policy debate over the Code revisions has been boiled down into inappropriately simplistic conclusions—UCITA is pro-software-company and anticonsumer, and its drafters are disingenuous, moustache-twirling villains. The second problem is that the condemnation of a Uniform Act by such powerful legal voices could have an adverse effect on uniformity.
This Comment argues that state legislators should not decline to support UCITA merely out of concern that it is anticonsumer. Part II discusses how the primary goal of UCC article 2 revisions—to draft provisions applicable to the practices of the Information Technology (IT) industry—has been bogged down for the past decade by a complex policy debate based on the advent of consumer law. Part III analyzes common law treatment of issues pertinent to the interface between the IT industry and consumer product law, focusing on the standard form contract conundrum. Part IV analyzes the AG Letter and argues that it ought not to be given much persuasive weight by state legislators because of its marked deficiencies in comprehending well-settled commercial law principles.
About the Author
Erika E. Schinler. J.D. candidate 2001, Tulane University School of Law; B.A. 1998, University of Colorado—Denver.
Citation
75 Tul. L. Rev. 507 (2000)