Conviction by Clickwrap?

By: Robert Ward

“Terms and conditions” are ubiquitous. They appear on baseball tickets,[1] in air conditioning repair agreements,[2] and, of course, on essentially every website we visit on a daily basis. By now, as the Seventh Circuit has put it, reasonable consumers “understand there will be terms and conditions associated with using a website.”[3]

When disputes about terms and conditions are at issue in court, they often arise in the context of a consumer claim. A customer sues a website operator for, say, violating state privacy law. The operator responds by pointing out that the customer agreed to resolve disputes in arbitration, not in court. The customer opposes, arguing, for example, that they never agreed to arbitrate because the sign-up screen was too cluttered and the hyperlink was the wrong color and too far away from the sign-up button.[4] Or perhaps the customer argues that the arbitration agreement is unfair and therefore unenforceable.[5] The court makes its decision, and the case proceeds, whether in court or in arbitration. Nevertheless, in civil cases, courts continue to conduct a detailed analysis that may turn on such things as whether a hyperlink was both underlined and a different color or simply underlined.[6]

These details fade when we move from civil litigation to criminal proceedings, as a recent Seventh Circuit decision illustrates. In United States v. Blocker, the Seventh Circuit confronted a relatively common scenario: the defendant shared illegal material through his Dropbox account, and Dropbox informed law enforcement.[7] The defendant moved to suppress the evidence on Fourth Amendment grounds and the district court denied the motion, concluding that the defendant consented to the search when he agreed to the Dropbox terms.[8]

The Seventh Circuit affirmed in a short, unanimous opinion by Judge Easterbrook. While the decision gestures at issues of assent, its cursory analysis of terms and conditions stands in stark contrast to the detailed review courts employ in civil cases. The court treats the defendant’s assent as obvious: Dropbox makes access “contingent on agreement to its terms,” the defendant used Dropbox, so the defendant assented.[9] Nowhere did the Seventh Circuit—or the district court, for that matter—consider how the defendant purportedly agreed to the terms. Was it a clickwrap agreement?[10] Did Dropbox display the terms or just provide a hyperlink? And there is certainly no careful analysis of hyperlink color. The “fact-intensive legal analysis” the Seventh Circuit applies to terms in civil cases is absent.[11]

Perhaps this reflects the fact that neither the government nor the district court felt the need to engage in such a detailed analysis, and lack of consent was far from the defendant’s primary argument.[12] While the government briefly explained the Dropbox registration process, it did not—and was not required to—explain why the “simplicity of the screen,” “clarity of the disclosure,” “size and coloring of the disclosure’s font,” “spatial placement of the hyperlink,” and “temporal relationship to [the defendant’s] action” established the “reasonably conspicuous notice” required for online contract formation.[13]

This casual treatment of assent would be troubling enough if the consequences were limited to the Fourth Amendment context. They are not.

Consider, for example, my colleague Abbey Block’s recent analysis of federal wire fraud charges in which the government’s theory depends on purported violations of sportsbooks’ terms of use. When the alleged crime depends on a party having agreed to a website’s or mobile app’s terms, is it enough for the government to allege that, for example, all participants were “required to agree to” the terms?[14] Is it enough to allege the requisite mental state? If not, can a court resolve the issue on a pre-trial motion, or must a defendant wait for trial to raise issues of assent?

Given the briefing in the district court, Blocker may not have been the appropriate vehicle to resolve these questions. But as terms and conditions continue to play a major role in both civil and criminal cases, courts should not demand more proof of assent when a website’s terms merely channel a civil dispute into arbitration than when they support criminal liability.

[1] Zuniga v. Major League Baseball, 2021 IL App (1st) 201264.

[2] https://www.ftc.gov/system/files/documents/cases/182_3077_-_waldron_complaint.pdf

[3] Domer v. Menard, Inc., 116 F.4th 686, 700 (7th Cir. 2024).

[4] See id.

[5] See e.g., Thakkar v. ProctorU Inc., 571 F. Supp. 3d 927 (C.D. Ill. 2021).

[6] See e.g., Johnson v. Human Power of N Co., 767 F. Supp. 3d 845, 853 (N.D. Ill. 2025) (“Defendant’s hyperlink was only underscored and not marked in bold, all capital letters, or a different color font, and is therefore insufficient.”)

[7] United States v. Blocker, — F.4th —, 2026 WL 1217809, at *1 (7th Cir. May 5, 2026). Specifically, Dropbox informed the National Center for Missing and Exploited Children, which alerted federal authorities.

[8] Id. at *2.

[9] Id. at *1–2.

[10] Clickwrap agreements generally require users to indicate their assent to a website’s terms by checking a box, clicking a button labeled “I Accept,” or both.

[11] Domer, 116 F.4th at 695.

[12] See Motion to Suppress, Government’s Response in Opposition to Defendant’s Motion to Suppress, Reply in Support of Motion to Suppress, Order, United States v. Blocker, No. 20 CR 704 (N.D. Ill.), Dkt. Nos. 72, 85, 91, 97.

[13] Domer, 116 F.4th at 695.

[14] Indictment ¶ 9, United States v. Clase de la Cruz, No. 25-CR-346 (E.D.N.Y. Nov. 5, 2025), Dkt. No. 1, https://www.justice.gov/usao-edny/pr/two-current-major-league-baseball-players-charged-sports-betting-and-money-laundering.