> In October 2023, Tile sent to all accountholders […] an email with the heading “Updated Terms of Service and Privacy Policy” […] to the email address provided by accountholders during registration, […] “[i]f you continue to use any of [Life360 and Tile’s] apps, or access our websites (other than to read the new terms) on or after November 26, 2023, you are agreeing to the [Oct. 2023 Terms].”

> Broad did not locate the Oct. 2023 Notice until January 2024, when she affirmatively searched for the email and found it in her spam folder. […]

> Doe “never knew that Tile sent” the Oct. 2023 Notice and so never “read any revised or updated Terms.”

> The district court held that neither Broad nor Doe assented to the Oct. 2023 Terms.

So then it was challenged, and the appeals court gets into the weeds: were the Appellees “on inquiry notice of the Oct. 2023 Terms”? (“Inquiry notice” is clearly a specific legal term, I can’t comment on its precise meaning.)

The entire thing seems to hinge on whether appropriate notice was given: it seems to be accepted by all parties and case law that “continuing to use after such-and-such a date implies consent” is okay. (This is explored at the end of the document: simply using the app is treated as “unambiguously manifesting assent”, presuming inquiry notice.)

The court decides: yes, it was sent in the appropriate way and clearly marked and described. And

> Although the email did not say specifically that the arbitration agreement would be updated, reasonable notice does not require the email to discuss every revision.

They do say

> Tile could have done more to ensure that all its users were on inquiry notice of the Oct. 2023 Terms. Tile could, for example, have interrupted users’ next visit to the Tile App with a clickwrap pop-up notice. […] Because Tile should have known that at least some of its users do not closely monitor email, […] and Tile should have furnished additional notices, this factor weighs against finding inquiry notice.

They conclude: two factors for, one against, and thus determine that inquiry notice was received, although Tile didn’t handle things properly themselves, and should have done more.

But they avoid setting this as universal precedent:

> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” […] and we do not hold that notice by mass email establishes inquiry notice in every case.

—⁂—

This is my interpretation from a brief read of this interesting-sounding document. I’m neither a lawyer nor American. My understanding is almost certainly incomplete. I think I have avoided inserting any interpretation of my own, others can do that.

US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]