9th Circuit Ruling on Email-Based Consent and Mandatory Arbitration

The Pitch

On March 3, 2026, the US Court of Appeals for the 9th Circuit ruled in Ireland-Gordy v. Tile that mass email updates to Terms of Service (TOS) are legally binding. The court determined that a user’s continued use of a service after receiving such an email constitutes consent to new terms, including mandatory arbitration clauses (Court Memorandum).

Under the Hood

The ruling in case No. 25-403 specifically reversed a lower court decision that had previously protected users from forced arbitration because they had not physically clicked an "agree" button (MetNews, 2026). The court found that an email sent to a registered address containing a bolded hyperlink provided "reasonably conspicuous notice" of the changes (Court Memorandum, p. 5). This assumes, of course, that your user’s idea of a good Tuesday is auditing their spam folder for legal literature.

There are significant technical and legal caveats to this decision:
* The disposition is explicitly labeled as "not precedent" under 9th Circuit Rule 36-3 (Court Memorandum, p. 1).
* It creates a "wild-west" environment where this ruling conflicts with stricter "clickwrap" standards set in Godun v. JustAnswer (Eric Goldman Blog).
* For hardware-integrated services like Tile or Life360, the requirement to "stop using the service" to signal non-consent is often technically impractical (HN).
* Users of high-level AI services, such as GPT-5 or Claude 4.5 Opus, risk losing privacy rights via automated mailers they likely never read (UsedBy Dossier).
* We do not know yet how this ruling will interact with the 2025 "Right to Explicit Consent" bills currently moving through state legislatures (UsedBy Dossier).

Marcus's Take

This is a lazy legal victory that creates a massive reliability gap for backend and compliance teams. Relying on "unpublished" memorandums to justify shifting from explicit clickwrap to "consent via inaction" is a high-risk gamble. While it may reduce UX friction for your GPT-5 implementation today, it leaves your company vulnerable to the next judge who decides to follow the Godun precedent instead. Stick to explicit consent modals; a few milliseconds of user friction is significantly cheaper than a class-action lawsuit when your "conspicuous" email ends up in a junk filter.

Ship clean code,
Marcus.