This post explains a court decision for a general tech audience. It’s not legal advice. If you’re drafting or changing terms for a real product, talk to a lawyer in your jurisdiction.
In March 2026 a short court document started circulating on Hacker News under a headline along the lines of “US Court of Appeals: TOS may be updated by email, use can imply consent.” Blog posts quickly turned that into “your inbox is now a contract” and “ignoring an email makes you legally bound.”
The real decision is narrower and more interesting than the headlines. It’s worth understanding properly, both as a user and, especially, if you build software that has terms of service.
The case
The decision is Ireland-Gordy v. Tile, Inc., decided by the US Court of Appeals for the Ninth Circuit on 3 March 2026. The defendants included Tile, the Bluetooth tracker company, and its parent Life360. The dispute was about whether certain plaintiffs had to take their claims to arbitration instead of court.
That depended on which version of Tile’s terms they had agreed to. Tile updated its terms in October 2023, and the new version included an arbitration clause. Two plaintiffs argued they had never agreed to the updated terms. The trial judge largely agreed with them. The Ninth Circuit reversed.
What the court held
Applying California contract law, the panel found that the two plaintiffs had agreed to the updated terms because:
- Tile sent them an email notifying them of the new terms, and
- they kept using the app afterward.
The court started from a basic contract principle: “Parties traditionally manifest assent by written or spoken word, but they can also do so through conduct.” Continued use after clear notice can count as that conduct.
The key question was whether users had inquiry notice, meaning whether a reasonably prudent user would have been prompted to read the new terms. The court looked at three things:
- the context of the transaction,
- the design and content of the app or website, and
- any other notices given to users, such as the email.
The court also noted that app and website providers have “complete control over the design of their apps and websites,” which puts the responsibility on them to make notice conspicuous. That point cuts both ways. It’s why the notice was enough here, and it’s why a poorly designed notice might not be enough somewhere else.
What the decision does not say
This is where many summaries went wrong.
It isn’t binding precedent
The decision is marked “Not for publication.” Under Ninth Circuit rules, unpublished memorandum dispositions generally aren’t precedent. Other courts can look at them, but they don’t set a rule that lower courts must follow. Calling this a “landmark ruling” overstates it.
It doesn’t mean any email works
The outcome depended on the specific facts: how the email was written, what it said, and the overall context. A vague line buried in a marketing newsletter is a very different situation. Courts have repeatedly refused to enforce terms when notice wasn’t reasonably conspicuous.
It’s about California law
Contract formation is mostly state law. The panel applied California law. Other states, and other countries, can reach different conclusions.
It doesn’t make “use equals consent” universal
Continued use counted here because it came after adequate notice. Without that notice, continued use alone generally doesn’t bind someone to terms they never saw. That’s the long-standing distinction between enforceable “clickwrap” or “sign-in wrap” designs and often unenforceable “browsewrap”.
The bigger picture: online contract formation in 2026
This decision fits a broader trend. Courts increasingly decide these cases on design and context rather than bright-line rules. Law firm commentary, such as Proskauer’s review of recent circuit decisions and Frankfurt Kurnit’s analysis of amendments, points out that the same notice method can succeed or fail depending on how clearly it’s presented and what users reasonably expect.
What this means if you build software
If you run a SaaS product, an app or a website with accounts, the practical lesson isn’t “you can change terms with an email.” It’s “if you change terms, make the notice impossible to miss, and keep records.” Here’s a sensible approach:
1. Send a dedicated email
Don’t tuck a terms update into a newsletter or product announcement. Use a clear subject line like “Updates to our Terms of Service”, and say plainly what’s changing, especially anything significant like arbitration clauses, class-action waivers, pricing or data use.
2. Summarise the changes in plain language
A short “what’s changing” section at the top of the email and the terms page makes it far more likely users actually understand the update, and it strengthens your notice argument.
3. Give advance notice
Set an effective date in the future, commonly 30 days, so users have time to read the terms and leave if they don’t agree.
4. Add in-product notice for material changes
For important changes, show a banner or a blocking “I agree” screen the next time users sign in. An affirmative click is much stronger evidence of agreement than silence.
5. Keep good records
Log which version of the terms each user saw and when, email delivery status, and when users agreed or kept using the product. If a dispute ever reaches a court, that record matters.
6. Tell users how to opt out
Explain what users can do if they don’t agree, whether that’s closing the account or, for arbitration clauses, a specific opt-out process if you offer one.
What this means for users
The honest answer is that those “we’ve updated our terms” emails can matter, particularly when they introduce arbitration clauses that limit your ability to sue or join a class action. You don’t need to read every word of every policy update, but it’s worth:
- skimming the summary of changes in emails from services you rely on,
- looking out for words like “arbitration”, “class action waiver” and “opt out”,
- using an opt-out if one is offered and you care about keeping court options open,
- deleting accounts you no longer use, so you’re not quietly agreeing to new terms through occasional logins.
The takeaway
The Tile decision doesn’t turn your inbox into a contract. It confirms something courts have said for years: clear notice plus continued use can create agreement, and companies control whether their notice is clear. For builders, that’s a design responsibility as much as a legal one. Make updates obvious, readable and well documented, and you’ll be on much firmer ground than any headline suggests.
Related reading
- Age Verification in the Operating System
- The Courtsdesk Shutdown: Open Justice, Court Data and an AI Vendor
- Who Sees Your Smart Glasses Footage?
Sources: Ninth Circuit memorandum, Ireland-Gordy v. Tile, Inc. (No. 25-403), Proskauer New Media and Technology Law Blog, Frankfurt Kurnit Klein & Selz.
