There are, generally speaking, four different kinds of online contracts that businesses use to obtain consent via the Internet from consumers: browsewrap, clickwrap, scrollwrap, and sign-in wrap agreements. Browsewrap exists where an online host dictates that assent is given merely by using the site. Clickwrap refers to the assent process by which a user must click “I agree,” but not necessarily view the contract to which he or she is assenting. Scrollwrap requires users to physically scroll through an Internet agreement and click on a separate “I agree” button in order to assent to the terms and conditions of the host website. Sign-in wrap couples assent to the terms of a website with signing up for use of the site’s services.
Although much has been written about these kinds of online agreements, including in this column,1 disputes over their enforceability continue to arise. Now, Senior U.S. District Judge Jack B. Weinstein of the Eastern District of New York has joined the fray. Earlier this month, in Berkson v. Gogo,2 Weinstein examined a sign-in wrap agreement used by Gogo, which provides passengers with Wi-Fi access on many domestic airlines, and—after declaring that it was a “questionable form of Internet contracting”—ruled that it was not enforceable.
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