Courts continue to grapple with the enforceability of online
agreements. While courts generally enforce clickwrap
agreements—online agreements where users affirmatively show
their acceptance after being presented with the terms, usually by
clicking "I agree"—browsewrap agreements have stood
on shakier enforceability grounds. Browsewrap agreements are online
terms that, unlike a clickwrap agreement, do not require any
affirmative indication of consent. Indeed, users can often continue
using a website without ever viewing the terms of a browsewrap
agreement, or possibly even knowing they exist. As the Northern
District of California's decision in Alejandro Gutierrez v. FriendFinder Networks
Inc. demonstrates, browsewrap agreements are not
always unenforceable, but reaching such a determination
can be a highly fact-specific inquiry requiring significant
discovery—including discovery of offline activities, such as
phonecalls between the user and the online service provider.
