Friday, August 3, 2007

Privacy and Contract Revisited

Two weeks ago today, I wrote that individual privacy was basically dead (original post here). I wrote this in response to an article which discussed the terms of service for the new iPhone, and I pointed out that, since courts routinely enforce clickwrap licenses that are never read or understood by consumers, there was nothing in the world to prevent businesses from writing provisions into those contracts which basically stripped consumers of their privacy. Happily, I may have written too soon.

Since my original post, has reported on two court decisions which, contrary to the general practice, have ruled against businesses on the enforceability of clickwrap licenses (stories on the subject are here and here). Does this mean that end user license agreements won't be the death of privacy? It's too early to tell - the cases reported on by Wired weren't directly concerned with privacy, and they might be an aberration rather than a sign of an emerging trend against click licenses. However, it is possible that my conclusion that privacy would be effectively destroyed by EULAs was premature. I hope it was, as that was one circumstance where I would much rather be wrong than right.


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