Well, now we have. The Northern District of California found a ride-sharing mobile application’s terms of service unenforceable. Why? Because in some instances a pop-up appeared that covered the operative consent language on a user’s mobile phone. “When such a registrant presses ‘REGISTER’ without having seen the alert, he does so without inquiry notice of [the] terms of service and without understanding that registering is a manifestation of assent to those terms.” That obstruction in the process effectively turned the terms of service into an unenforceable browsewrap agreement.
What should you do? Delete your mobile app from your phone and tablet, download it again, and play with it. If there is any instance in which a user can proceed into the application without seeing language of consent, then consider design changes. A standalone page, such as this, is a good practice:
Of course, you can always use an opt-in check box too. But, as we have mentioned before, the design should allow you to demonstrate that you obtained consent from your users.