Giving users a plain deal: Contract-related media liability for unmasking anonymous commenters

Communication Law and Policy

Volumn 16, Issue 2, 2011, Pages 197-226

  Sanders, Amy Kristin ^a   File, Patrick C ^a  

^a UNIVERSITY OF MINNESOTA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79953724032     PISSN: 10811680     EISSN: None     Source Type: Journal    
DOI: 10.1080/10811680.2011.559402     Document Type: Article

References (160)

1. Henry J. Gomez, Revealing Commenter's Identity Stirs Public Information vs. Privacy Debate, Plain Dealer, Mar. 26, 2010, A1, available at http://blog.cleveland.com/metro/2010/03/plaindealer_sparks_ethical_de.html.
2. James F. McCarty, Comments Linked to Judge's E-mail Discussed Cases, Plain Dealer, Mar. 26, 2010, A1, available at http://blog.cleveland.com/metro/2010/03/post258.html.
3. See http://connect.cleveland.com/user/lawmiss/index.html.
4. Id. 45
5. Id. 55
6. Gomez HJ, supra note 1, at A1.
7. Connie Shultz, Web Site Posters' Anonymity an Invitation to Mischief, Plain Dealer, Mar. 28, 2010, available at http://www.cleveland.com/schultz/index.ssf/2010/03/web_site_posters_anonymity_an.html.
8. In late 2010, Cleveland.com reported that Judge Saffold reached an undisclosed financial settlement with advance Internet. Saffolds Dismiss Lawsuit Against Plain Dealer, Settle with Advance Internet, Cleveland.com, Dec. 31, 2010, http://blog.cleveland.com/metro/2010/12/saffolds dismiss lawsuit again.html. See also Saffold v. Plain Dealer et al., CV 10723512 (Oh. Ct. of Common Pleas, Cuyohoga Cty, 2010).
9. Leila Atassi, Cuyahoga County Judge Shirley Strickland Saffold Files $50 Million Lawsuit Against The Plain Dealer and Others, Cleveland.com, Apr. 8, 2010, http://blog.cleveland.com/metro/2010/04/cuyahoga_county_judge_shirley.html.
10. Bill Meyer, Wisconsin Paper Faces Backlash for Outing "Anonymous" Web Critic of Suburban Official, Cleveland.com, Sept. 17, 2009, http://www.cleveland.com/nation/index.ssf/2009/09/wisconsin_paper_faces_backlash.html;
11. Associated Press, "Wausau Daily Herald" Ignites Debate on Anonymous Posting, Sept. 17, 2009, available at http://www.editorandpublisher.com/eandp/news/article_display.jsp?vnu_content_id=1004013805.
12. "Wausau Daily Herald," supra note 8, at ¶ 4.
13. Kurt Greenbaum, Follow Up: The Case of the Vulgar Comment and the School, STLToday.com, Nov. 18, 2009, http://www.stltoday.com/blogzone/the-editors-desk/the-editors-desk/2009/11/follow-up-the-case-of-the-vulgar-comment-and-the-school/.
14. There is a substantial difference between being anonymous, or unknown, to a reader and pseudonymous, or known to the reader by a false name. In the online context, users of Web sites are often allowed to choose a pseudonym called a "username" or "screen name." For the purposes of this article, as has been the case in many courts, the term "anonymous" will be used to describe speech that is either anonymous or pseudonymous.
15. Victoria Smith Ekstrand, Unmasking John and Jane Doe: Online Anonymity and the First Amendment, 8 Comm. L. & Pol'y 405 (2003);
16. Lindsay Gsell, Comments Anonymous, 31 Am. Journalism Rev. 1-16 (2009);
17. Jane B. Singer & Ina Ashman, "Comment Is Free, but Facts Are Sacred": User-generated Content and Ethical Constructs at the Guardian, 24 J. of Mass Media Ethics 1-21 (2009);
18. Lyrissa Lidsky & Thomas Cotter, Authorship Audiences and Anonymous Speech, 82 Notre Dame L. Rev. 1537 (2007);
19. Andrew Alexander, Channeling Online Rage, Wash. Post, May 10, 2009, at A17.
20. Most of the cases have been in state trial-level courts. See, e.g., Beal v. Calobrisi, 08-CA-1075, (Fl. Cir. Ct. Oct. 9, 2008) (order granting motion to quash subpoena to newspaper); Illinois v. Alton Telegraph, 08-MR-548, (Ill. Cir. Ct. 3d Jud. Cir. May 15, 2009) (order denying, granting motion to quash subpoena to newspaper); Doty v. Mol-nar, DV 07-22 (Mont. 13th Jud. Dist. Sept. 3, 2008) (transcript of hearing and oral ruling granting motion to quash subpoena to newspaper); Doe v. TS et al, CV 08030693, (Clackamas County Ct. Or. Sept. 30, 2008) (letter opinion granting motion to quash subpoena to newspaper); State v. Martinez, No. 17042B (Tex. 104th D. Ct. 2009)(oral ruling granting motion to quash).
21. Sedersten v. Taylor, 2009 WL 4802567 (W.D. Mo. 2009). On the "murky" scope of First Amendment protection for anonymous online speech, see Lidsky & Cotter, supra note 12, at 1541.
22. 501 U.S. 663 (1991).
23. Id. at 665.
24. See Restatement 2d of Contracts § 90 (1) (1981) (stating, in pertinent part: "A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.").
25. C.C. Marvel, Comment Note, Promissory estoppel, 48 A.L.R.2d 1069 (1956).
26. Cohen v. Cowles Media Co., 457 N.W.2d 199, 205 (Minn. 1990), rev'd 501 U.S. 663 (1991), remanded to 497 N.W.2d 387 (Minn. 1992).
27. 501 U.S. 663, 669 (1991).
28. Id. at 668-69 (citing Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 103 (1979)(quota-tion marks omitted). See also Florida Star v. B. J. F., 491 U.S. 524, (1989); Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829 (1978).
29. Id. at 670. Justice Blackmun wrote a dissent, joined by Justices Marshall and Souter. Id. at 672 (Blackmun, J., dissenting). Justice Souter wrote a dissent joined by Justices Marshall, Blackmun and O'Connor. Id. at 676 (Souter, J., dissenting). Both dissents argued, inter alia, that the Court should have given more consideration to the important public interest served by reporting Cohen's name in balancing whether the state's interest in enforcing the newspapers' promise of confidentiality outweighed the newspapers' interest in reporting news.
30. Kyu Ho Youm & Harry W. Stonecipher, The Legal Bounds of Confidentiality Promises: Promissory Estoppel and the First Amendment, 45 Fed. Comm. L.J. 63-88 (1992).
31. Donald M. Gillmor, Power, Publicity and the Abuse of Libel Law 206 n.425 (1992) (observing that news sources would infer from interviews that their stories would be portrayed in a certain way)
32. Rodney Smolla, Law of Defamation 12-32.2 (1992);
33. Matthew Bunker & Sigman Splichal, Legally Enforceable Reporter-Source Agreements: Chilling News Gathering at the Source?, 70 Journalism Q. 939-944 (1993);
34. Rodney Smolla, Cohen Decision Offers "Great Potential for Mischief" from Disgruntled Sources, ASNE Bull., Oct. 1991, at 24.
35. R Bunker & S Splichal, supra note 23, at 944.
36. R Smolla, supra note 23, at 24.
37. R Smolla, supra note 23, at 12-32.2.
38. The authors rely on the term "user" to include anyone who consumes a media product, including newspaper readers, television viewers, radio listeners and, most frequently, Web site users.
39. The article does not address the related issue of newspapers turning over the identities of anonymous posters when compelled to do so by a court order because it falls outside the scope of this contract law analysis.
40. Contract law recognizes two separate types of contracts - those for goods and those for services. Contracts for goods are governed by the Uniform Commercial Code while contracts for services fall under the common law. Companies providing Internet-based services, like news Web sites, are thus subject to the common law of contracts. See Kaplan v. Cablevision of PA, Inc., 671 A.2d 617 (Pa. Supr. 1996) (holding that the provision of cable television is a service governed by common law, not a good under the UCC).
41. For example, in the case of a newspaper subscription, the news organization clearly receives a long-term promise and the resulting payment for services while the user receives the commitment to deliver the newspaper to the user's home.
42. Steven J. Burton, Principles of Contract Law 7 (2d ed. 2001).
43. id. at 8.
44. id. 56
45. id. 98
46. As far back as the early 1900s, legal scholars debated whether "mutual assent" was to be judged objectively or subjectively: It is commonplace of the law that mutual assent is necessary to the formation of contracts As is too often the case in the law, though the words in which the principle is stated have become indisputably commonplace, their fundamental meaning is unsettled. That point of dispute is whether actual mental assent of the parties is a legal requisite, or merely such an expression by them as would normally indicate assent, whatever may have been in the minds of the parties.
47. Samuel Willston, Mutual Assent in the Formation of Contracts, 14 Ill. L. Rev. 85 (1919).
48. E. Allan Farnsworth, Contracts 3.6 (2004).
49. A standard-form contract is: [A] usually preprinted contract containing set clauses, used repeatedly by a business or within a particular industry with only slight additions or modifications to meet the specific situation. Because standard-form contracts usu. favor the drafting party, they can amount to adhesion contracts. Courts offset the drafting party's advantage by construing the contract in the light least favorable to the drafting party. Black's Law Dictionary (9th ed. 2009).
50. An adhesion contract is "a standard form contract prepared by one party, to be signed by another party in a weaker position, usually a consumer, who adheres to the contract with little choice about the terms." Black's Law Dictionary (9th ed. 2009).
51. Courts have generally defined "clickwrap" agreements as those "in which website users typically click an "I agree' box after being presented with a list of terms and conditions of use." Hines v. Overstock.com, 668 F. Supp. 2d 362, 366 (E.D. N.Y. 2009).
52. Unlike "clickwrap" licenses, a "browsewrap" license "does not require the user to manifest assent to the terms and conditions expressly [a] party instead gives his assent simply by using the Web site." Southwest Airlines v. BoardFirst LLC, 2007 WL 4823761 4 (N.D.Tex.).
53. Mark A. Lemley, Terms of Use, 91 Minn. L. Rev. 462-463 (2006).
54. A study by professors Debra Poglund Stark and Jessica M. Choplin suggests that very few consumers read the entire length of any contract they sign: "For example, based on data we collected, only approximately 5 percent of the public we surveyed reported reading the terms of the software agreements they signed on the internet; only 9 percent reported reading all of the terms of the "rolling contracts' they signed."
55. Debra Poglund Stark & Jessica M. Choplin, A License to Deceive: Enforcing Contractual Myths Despite Consumer Psychological Realities, 5 NYU J. of L. & Bus. 617-628 n.33 (2009).
56. E Farnsworth, supra note 36, at 3.1.
57. MA Lemley, supra note 41, at 463.
58. See, e.g., Davidson & Assocs. v. Jung, 422 F.3d 630,632 (8th Cir. 2005); Specht v. Netscape Comm. Corp., 306 F.3d 17, 22 n.4 (2d Cir. 2002); DeJohn v. The. TV Corp. Int'l, 245 F. Supp. 2d 913, 921 (N.D. Ill. 2003).
59. See Hines, 668 F. Supp. 2d 362, 368 (E.D. N.Y. 2009): Hines therefore lacked notice of the Terms and Conditions because the Web site did not prompt her to review the Terms and Conditions and because the link to the Terms and Conditions was not prominently displayed so as to provide reasonable notice of the Terms and Conditions. Very little is required to form a contract nowadays - but this alone does not suffice. Id. at 367.
60. Pollstar v. Gigmania, Ltd., 170 F. Supp. 2d 974, 981 (E.D. Cal. 2000). 48 Southwest Airlines Co. v. Boardfirst, LLC, 2007 WL 4823761 at 4 (N.D. Texas 2007). 49 Hubbert v. Dell Corp., 835 N.E.2d 113, 121-22 (Ill. App. Ct. 2005).
61. A related legal doctrine, known as "contra proferentem," states that "in interpreting documents, ambiguities are to be construed unfavorably to the drafter." Black's Law Dictionary (9th ed. 2009).
62. See J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 757 A.2d 412 (Pa. Commw. Ct. 2000) (A middle school student maintained no expectation of privacy with regard to his Internet Web site, which was available to anyone online.).
63. Romano v. Steelcase, Inc. 907 N.Y.S.2d 650 (Sup. Ct. N. Y. 2010) (granting a motion to grant defendant access to plaintiff's current and historical social networking pages and accounts in a personal injury suit).
64. See United States v. Christie, 570 F. Supp. 2d 657, 659 (D. N. J. 2008) (finding that "federal courts have uniformly held that internet subscribers have no right of privacy under the Fourth Amendment with respect to identifying information on file with their internet service providers"). But see State v. Reid, 194 N.J. 386, 399 (N. J. 2008) ("The New Jersey Constitution protects an individual's privacy interest in the subscriber information he or she provides to an Internet service provider.").
65. McVicker v. King, 266 F.R.D. 92 (W. D. Pa. 2010).
66. Id. at 95.
67. Id. 465
68. Id. 23
69. 2009 WL 4802567 (W.D. Mo. 2009).
70. Id. at 3.
71. Susannah Fox, Trust and Privacy Online 6-11 (2000), at http://www.pewinternet.org/Reports/2000/Trust-and-Privacy-Online/Summary.aspx (last visited Oct. 28, 2010).
72. Joseph Turow et al., The FTC and Consumer Privacy in the Coming Decade 8 (2006), at http://ftcsearch.ftc.gov/search?q=cache:www.ftc.gov/bcp/workshops/techade/pdfs/Turow-and-Hoofnagle1.pdf+turow+privacy+policies&output=xmlnodtd&ie=UTF-8&client=ftcconsumer&proxystylesheet=ftcconsumer&site=defaultcollection&access=p&lr=langenlanges&oe=UTF-8 (last visited Oct. 28, 2010).
73. Allyson Haynes, Online Privacy Policies: Contracting Away Control Over Personal Information?, 111 Penn St. L. Rev. 587-623 (2007).
74. Id. at 624.
75. Victoria Smith Ekstrand, Online News: User Agreements And Implications For Readers, 79 Journalism & Mass Comm. Q. 603-13 (2002).
76. Id. at 613.
77. See supra note 13 and accompanying text.
78. See, e.g., Branzburg v. Hayes, 408 U.S. 665 (1972) (rejecting the argument for a First Amendment right or common law privilege to protect the identities of confidential sources).
79. Miguel Helft & Jenna Wortham, Facebook Bows to Pressure Over Privacy, N.Y. Times, May 27, 2010, at B1.
80. See, e.g., Cohen, 501 U.S. 663 (1990); John Lofton, The Press as Guardian of the First Amendment 283 (1980) (observing that, "viewed in historical perspective and in the context of many issues the record of the press in defending First Amendment rights has been a mixed one").
81. See, e.g., Sedersten v. Taylor, 2009 WL 4802567 (W.D. Mo. 2009). See also supra note 13 (cases involving the question of whether news organizations can claim shield laws apply to anonymous commenters).
82. See http://www.startribune.com/.
83. See http://www.twincities.com/.
84. See http://www.sctimes.com/.
85. See http://albertleatribune.com/.
86. See http://www.citypages.com/.
87. See http://minnesotaindependent.com/.
88. See http://www.minnpost.com/.
89. See supra note 9 and accompanying text. For illustrative purposes, the study assumes that the unmasked user suffered the demonstrable loss necessary to establish damages in the breach of contract claim.
90. See http://www.citypages.com/. Village Voice Media also owns The Village Voice of New York City, LA Weekly, Seattle Weekly, OC Weekly of Southern California, SF Weekly of San Francisco, Dallas Observer, Houston Press, Phoenix New Times, Miami New Times, Westword of Denver, Riverfront Times of St. Louis, The Pitch of Kansas City, and New Times Broward-Palm Beach in Florida.
91. See http://www.minnpost.com/ and http://minnesotaindependent.com/. MinnPost, a 501(c)(3) nonprofit, has been seen as a pioneer among new nonprofit journalism news Web sites. See David Carr, After a Year of Ruin, Some Hope, N.Y. Times, Dec. 21, 2009, B1. MinnPost has been the recipient of more than $800,000 in grants from the Knight Foundation. See http://www.knightfoundation.org/grants/grant detail.dot? id=338516&crumbTitle=Grand%20Detail. The Minnesota Independent is supported by the American Independent News Network, http://tainews.org/, which also runs sister sites the Colorado Independent, Florida Independent, Iowa Independent, Michigan Messenger, New Mexico Independent, and Washington (D.C.) Independent.
92. Different Web sites use different terms. They vary from "terms of use" (the most common), to "terms of service," to "use policy agreement." Five of the six Web sites have a separate "terms" agreement and "privacy policy." The Albert Lea Tribune Web site had only an "Albert Lea Use Policy Agreement."
93. The user agreements as well as registration policies and practices are readily available by visiting each Web site. E-mails were sent to editors at each Web site requesting feedback explaining how their news organizations would approach a circumstance similar to that involving the Wausau Daily Herald. Six editors responded: Pioneer Press Senior Online Editor Chris Clonts, City Pages Web Editor Jen Boyles, MinnPost CEO and Editor Joel Kramer, St. Cloud Times Assistant Managing Editor Mike Knaak, Albert Lea Tribune Managing Editor Tim Engstrom, and Minnesota Independent Editor Paul Schmelzer.
94. Ekstrand, supra note 64, at 603
95. James Gordley, The Philosophical Origins of Modern Contract Doctrine 230 (1991).
96. Id. at 608.
97. See http://www.startribune.com/help/11484216.html; http://www.sctimes.com/section /TERMS; http://albertleatribune.com/terms-of-use/; http://www.citypages.com/about/terms; http://www.minnpost.com/terms_of_use/; http://minnesotaindependent.com/policies.
98. This article does not examine whether courts would uphold these contracts under the legal doctrine of unconscionablity. For a discussion of the implications of this doctrine, see infra notes 128-30 and accompanying text.
99. http://www.startribune.com/help/11484216.html.
100. See also http://www.sctimes.com/section/TERMS which state the St. Cloud Times may disclose user information: [I]f required to do so by law or if, in our business judgment, such disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms of Service; (c) respond to claims that any content or materials submitted by you violate the rights of third parties; or (d) protect the rights, property, or personal safety of our Site, us, our affiliates, our officers, directors, employees, representatives, our licensors, other users, and/or the public.
101. See http://www.startribune.com/help/11484216.html.
102. See also http://www.sctimes.com/section/TERMS;
103. https://secure.www.twincities.com/portlet/layout/html/privacypolicy/privacypolicy.jsp#terms.
104. See http://www.citypages.com/about/privacyPolicy.
105. See http://www.citypages.com/about/terms (emphasis omitted: all capital letters).
106. See http://www.albertleatribune.com/terms-of-use/.
107. Id. 121
108. E-mail from Joel Kramer, CEO and Editor, MinnPost to author (Jan. 5, 2010) (on file with authors). The issue of MinnPost's registration policies is discussed in fuller detail infra at note 96 and accompanying text.
109. See http://www.minnpost.com/terms_of_use/ (emphasis omitted).
110. See http://minnesotaindependent.com/policies.
111. See http://www.minnpost.com/comment_registration/.
112. See http://www.startribune.com/s?action=reg;
113. http://www.sctimes.com/apps/pbcs.dll/section?category=Pluck_register;
114. http://www.albertleatribune.com/accounts/register/. Sctimes.com also requires users to provide a country.
115. See, e.g., http://www.topix.net/topix/terms/.
116. See http://www.citypages.com/feedback/add/1204687/.
117. A comment box appears at the bottom of each individual story on the Minnesota Independent Web site. See generally http://minnesotaindependent.com/.
118. See supra note 82. An almost identical e-mail was sent to each editor. It introduced the author as a Ph.D. student doing research; it provided background on the issue of unmasking of anonymous comment posters, including links to online stories about the Wausau Daily Herald and STLToday.com. It asked for responses to several questions: (1) Using the Daily Herald and Post-Dispatch examples as points of reference, can you think of a circumstance wherein you or another editor or administrator would voluntarily disclose information about a [Web site name] user without a legal order to do so? Why or why not? Does your news organization have a specific policy or set of guiding principles for this type of a situation? (2) How much does [the news organization] moderate the comments provided by its users, and what is the rationale behind that policy?
119. This is not to say that such comments would be tolerated by the editors, however. Several of the editors said that although they do not, and would not, unmask unruly comment posters, they will take steps to moderate their behavior such as blocking their comments or permanently banning them from posting.
120. E-mail from Mike Knaak, Assistant Managing Editor, St. Cloud Times, to author (Jan. 8, 2010) (on file with authors).
121. E-mail from Joel Kramer, CEO and Editor, MinnPost, to author (Jan. 5, 2010) (on file with authors).
122. E-mail from Paul Schmelzer, Editor, Minnesota Independent, to the author (Jan. 9, 2010) (on file with authors).
123. E-mail from Chris Clonts, Senior (Online) Editor, TwinCities.com, to the author (July 21, 2010) (on file with authors).
124. E-mail from Mike Knaak, Assistant Managing Editor, St. Cloud Times, to the author (Jan. 8, 2010) (on file with authors).
125. E-mail from Tim Engstrom, Managing Editor, Albert Lea Tribune, to the author (Jan. 5, 2010) (on file with authors).
126. E-mails from Tim Engstrom, Managing Editor, Albert Lea Tribune, to the author (Jan. 5, 2010 and Jul. 6, 2010) (on file with authors).
127. E-mail from Tim Engstrom, Managing Editor, Albert Lea Tribune, to the author (Jul. 6, 2010) (on file with authors).
128. E-mail from Chris Clonts, Senior (Online) Editor, TwinCities.com, to the author (July 21, 2010) (on file with authors).
129. See supra note 50 and accompanying text.
130. An Internet-Protocol address is "the 10-digit identification tag used by computers to locate specific Web sites." Black's Law Dictionary (9th ed. 2009).
131. Nathaniel Gleicher, Note, John Doe Subpoenas: Toward a Consistent Legal Standard, 118 Yale L.J. 320-328 (2008).
132. The ISP will often be able to identify both the computer using the targeted IP address and the account information of that computer's owner, which can include a name, address or telephone number. The IP address can only establish that the account owner was responsible for the computer that was used to post the comment, and not that the account owner actually made the offending comment. Unless the computer is accessible to members of the public or the account owner can argue that a specific third party accessed the computer without permission, however, the information provided by the ISP has usually been enough for lawsuits involving unmasked Internet "John Does" to proceed.
133. Kurt Greenbaum, Follow up: The case of the vulgar comment and the school, STLToday.com, Nov. 18, 2009, http://www.stltoday.com/blogzone/the-editors-desk/the-editors-desk/2009/11/follow-up-the-case-of-the-vulgar-comment-and-the-school/.
134. Geenbaum received a considerable amount of criticism from other users for helping to out the vulgar comment poster. Upon reflection, Greenbaum said, "I should have walked the idea around the newsroom a little more before calling the school." Id.
135. Id. Greenbaum wrote, "Did I reveal private information? No. I had none to reveal and wouldn't have if I had it."
136. E-mail from Jen Boyles, Web Editor, City Pages, to the author (Jan. 4, 2010)(on file with authors). Boyles wrote, "Absent a compelling reason (such as a murder that could be prevented) or a subpoena (which we typically resist), we do not release any information to authorities that isn't publicly available on our Web site to all of our readers, including user ID's - many of which are anonymous to us except for the IP address."
137. See http://www.citypages.com/about/terms. See also text accompanying note 90.
138. See text accompanying supra note 6.
139. See http://www.cleveland.com/useragreement/;
140. http://www.cleveland.com/privacy_policy/.
141. Obviously publishers must avoid publishing libelous or obscene speech. But see 47 U. S. C. § 230 (1998) ("No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."). Note
142. See Schutt Realty v. Mullowney, 10 N.W.2d 273, 276 (Minn. 1943).
143. Gorco Const. Co. v. Stein, 99 N.W.2d 69, 74 (Minn. 1959).
144. Tenant Const. Inc. v. Mason, 2008 WL 314515, 5 (Minn. App. 2008) (citing Gorco, 99 N.W.2d at 75).
145. See Gorco, 99 N.W.2d at 74-75.
146. See Minnesota-Iowa Television Co. v. Watonwan TV Imp. Ass'n., 294 N.W.2d 297 (Minn. 1980).
147. See Buchman Plumbing, Inc. v. Regents of Univ. of Minnesota, 215 N.W.2d 479 (Minn. 1974).
148. Black's Law Dictionary defines unconscionable as "showing no regard for conscience; affronting the sense of justice, decency, or reasonableness." Black's Law Dictionary (9th ed. 2009).
149. Anderson v. McOskar Enterprises, 712 N.W.2d 796, 800 (Minn. App. Ct. 2006).
150. See Yang v. Voyagaire Houseboats, 701 N.W.2d 783, 789 (Minn. 2005):
151. We first examine the enforceability of the exculpatory clause in the houseboat rental agreement. Exculpatory clauses are "not favored,' and they are "strictly construed against the benefited party.' An exculpatory clause is unenforceable if it is ambiguous in scope, purports to release the benefited party from liability for intentional, willful or wanton acts; or contravenes public policy. In determining whether an exculpatory clause violates public policy, we consider (1) whether there was a disparity in bargaining power between the parties and (2) the types of services being offered or provided, taking into consideration whether they are public or essential services.
152. Id. (quoting Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn.1982)).
153. Eric Mills Holmes, Restatement of Promissory Estoppel, 32 Willamette L. Rev. 263 (1996);
154. Juliet P. Kostritsky, A New Theory of Assent-Based Liability Emerging Under the Guise of Promissory Estoppel: An Explanation and Defense, 33 Wayne L. Rev. 895-906 (1987);
155. Jean Fleming Powers, Promissory Estoppel and Wagging the Dog, 59 Ark. L. Rev. 841 (2007);
156. Kevin M. Teeven, A History of Promissory Estoppel: Growth in the Face of Doctrinal Resistance, 72 Tenn. L. Rev. 1111 (2005).
157. R Smolla, supra note 23., at 24.
158. Kyu Ho Youm & Joseph Russomanno, "Burning" News Sources and Media Liability: Cohen v. Cowles Media Co. Ten Years Later, 24 Communication and the L. 69, 100 (2002).
159. Woodrow Hartzog, Promises and Privacy: Promissory Estoppel and Confidential Disclosure in Online Communities, 82 Temple L Rev. 891 (2009), available at http://ssrn.com/abstract=1473561 (Sept. 14, 2009).
160. See e-mail from Joel Kramer, CEO and Editor, MinnPost, to the author (Jan. 5, 2010) (on file with authors). Kramer wrote that MinnPost would unmask a user "only if (a) we judged that someone might be in danger or (b) we were ordered by a court to do so." Id. Note