Most Website Terms of Service Are Functionally Incomprehensible to Americans

A recent study on the Terms of Use policies used by Google, Facebook, and hundreds of other prominent online sites have concluded that the documents are written in a way that renders them functionally useless to most US adults, despite the fact that these documents are considered to be legally binding.

Or, put differently, and without all the fancy language: People are being held accountable to contracts that they literally cannot understand, even if they want to. Two law professors analyzed 500 of the most popular websites in the United States and the sign-in wrap contracts that these sites use. The documents themselves were analyzed using two separate scales for evaluating the readability of a document: Flesch-Kincaid (F-K) and Flesche Reading Ease (FRE). F-K measures how difficult a document is to read, while FRE estimates the education level required to meet it. A high F-K score means a document is easy to read and generally correlates to a lower FRE score.

(Out of curiosity, I checked the F-K and FRE scores of three stories I’ve written this year. I picked three stories that weren’t overly technical but instead focused on larger discussions of products, court cases, and the op-ed I wrote on Facebook’s conduct. The FRE scores for these three stories according to Microsoft Word were 43.3, 47.9, and 45 respectively. The F-K grade level estimates were 12.6, 11.4, and 12.6). Harry Potter, on average, scores a 72.83.

The pair of law professors investigating these sign-in licenses noted that they’ve become quite popular but that no formal investigation of how readable these documents actually are had ever been done.

The Importance of Readability

The question of whether companies and governments have an obligation to make documents readable isn’t a silly one. Modern readability guidelines for a variety of industries and government offices recommend that documents target an FRE score of 60, which approximately corresponds to an eighth-grade education. If that sounds low, keep in mind that it has less to do with catering to less-educated people and more with ensuring that everyone who might be asked to sign a binding document is capable of understanding the terms they are agreeing to.

Your typical ToS is not considered with such issues. The median FRE score for a ToS was 34.2, while the mean was 34.86. The authors write that this “is comparable to the usual score of articles found in academic journals.” To read at this level, it’s assumed the reader has completed an average of 14.1 years of education.

Looking at the graph, of the 500 website Terms of Service contracts studied, more than 100 require a reading comprehension level that’s even higher than 14.1 years of education. And 498 out of the 500 websites investigated were over the recommended 8th-grade reading level target used by experts and document authors in other contexts.

There are no laws requiring corporations to make a contract readable, and failure to read a contract you signed isn’t a defense. Even being illiterate and therefore physically unable to comprehend a contract or document is not automatically a defense against having agreed to it. The idea that people should read documents before they sign them is a truism. The question of whether companies, government agencies, and other organizations that one signs a contract with should have an obligation to create documents that can be read by an average individual is a fair one.

While the authors do not attempt to probe the exact relationship between document legibility and the well-known fact that the overwhelming majority of internet users don’t read TOS/EULA’s, it’s not hard to see how the two might be related. If the typical TOS requires an agreement that a typical person literally can’t read, it’d go a long way to explaining why most people rarely even try.

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