Consumers Should Read Before Clicking ‘I Accept’

Caution: Click-through agreements may be hazardous to your rights of privacyand free speech.

Those are the sentiments expressed in a white paper released by theElectronic Frontier Foundation (EFF) as part of a campaign to raise consumerawareness of some of the dangerous terms found in End User LicensingAgreements (EULAs), commonly found on the Internet as “click-throughagreements.”

According to the author of the white paper, EFF policy analyst AnnaleeNewitz, overly broad EULAs in the high tech industry are one of the greatestthreats to consumer rights.

Privacy Invasion as Condition of Use

She said that few people realize that simply visiting a Web site ordownloading a software update may constitute agreeing to a EULA thatpermits third parties to monitor their communications or allows a vendor todictate what they can or cannot do with the product they’ve bought.

Some companies — including Microsoft — make the invasion of a user’s privacy a condition of futureupgrades of a product, she maintained.

“They ask the user to agree to allow the vendor to periodically look ontoyour computer and see if you have the appropriate software or you need anupdate,” she told TechNewsWorld.

“The problem is,” she continued, “the user is left in a situation wheretheir computer is being accessed by a third party, and they don’t know when,and they have no control over it. But in order to get valuable updates, theyhave to agree to that term in the EULA.”

Ridiculous Terms

She also noted the terms in the EULAs used by some computer game makers.

“In their End User Licensing Agreement, you agree that the company can lookat files on your hard drive and take screen shots of what’s happening onyour computer and send them back to the company, which is just ridiculous,”she observed.

EULAs have been around for more than 20 years, Newitz noted, “but it’sonly in the last three or four years that we’ve seen so many terms cominginto them which are such flagrant violations of privacy, and also askingpeople to sign away rights that they have under federal law.”

“There has definitely been a trend toward making these agreements more andmore ridiculous,” she declared.

Stoked by Spammers

That trend has been stoked by purveyors of spyware, contended Javad Heydary,managing partner with the law firm of Heydary Hamilton in Toronto.

“For the past 10 to 15 years, I’ve seen, personally, software licensorspushing the limits step by step,” he said, “but then these guys came alongwho wanted to install adware and spyware, and they just took it to a newlevel.”

Newitz rapped provisions in EULAs that prohibit reverse engineering of aproduct. “Reverse engineering is explicitly allowed under federal copyrightlaw,” she said.

Detriment to Innovation

“That’s really important,” she maintained, “because a lot of inventors and alot of university students and innovators rely on their ability to reverseengineer in order to come up with cool new things that work with oldertechnology.”

“When companies take that right away from people, it really underminesinnovation,” she added.

As unsavory as the terms in some EULAs may be, most of the provisions inthe agreements are enforceable, according to Jason I. Epstein, a shareholderin the law firm of Baker, Donelson, Bearman, Caldwell in Nashville,Tennesee.

Perfectly Legal

“This is really a hornet’s nest,” he told TechNewsWorld, “because it has somuch emotion and everyone is saying consumers are getting screwed — and insome cases, I suppose they are if they don’t know what they’re reading. Butunder general contract law, the fact that you haven’t read a contractdoesn’t mean that it’s not enforceable.

“Every day people sign contracts in paper that they don’t read,” he added.”The reason that this is emotionally charged is because when the contract isin electronic form, it’s even less likely for someone to read it because weas a society have gotten used to burning through and clicking on ‘I accept.'”

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