Consumers Should Read Before Clicking 'I Accept'

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

Those are the sentiments expressed in a white paper released by the Electronic Frontier Foundation (EFF) as part of a campaign to raise consumer awareness of some of the dangerous terms found in End User Licensing Agreements (EULAs), commonly found on the Internet as "click-through agreements."

According to the author of the white paper, EFF policy analyst Annalee Newitz, overly broad EULAs in the high tech industry are one of the greatest threats to consumer rights.

Privacy Invasion as Condition of Use

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

Some companies -- including Microsoft (Nasdaq: MSFT) -- make the invasion of a user's privacy a condition of future upgrades of a product, she maintained.

"They ask the user to agree to allow the vendor to periodically look onto your computer and see if you have the appropriate software or you need an update," she told TechNewsWorld.

"The problem is," she continued, "the user is left in a situation where their 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, they have 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 look at files on your hard drive and take screen shots of what's happening on your 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's only in the last three or four years that we've seen so many terms coming into them which are such flagrant violations of privacy, and also asking people to sign away rights that they have under federal law."

"There has definitely been a trend toward making these agreements more and more 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 licensors pushing the limits step by step," he said, "but then these guys came along who wanted to install adware and spyware, and they just took it to a new level."

Newitz rapped provisions in EULAs that prohibit reverse engineering of a product. "Reverse engineering is explicitly allowed under federal copyright law," she said.

Detriment to Innovation

"That's really important," she maintained, "because a lot of inventors and a lot of university students and innovators rely on their ability to reverse engineer in order to come up with cool new things that work with older technology."

"When companies take that right away from people, it really undermines innovation," she added.

As unsavory as the terms in some EULAs may be, most of the provisions in the agreements are enforceable, according to Jason I. Epstein, a shareholder in 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 so much emotion and everyone is saying consumers are getting screwed -- and in some cases, I suppose they are if they don't know what they're reading. But under general contract law, the fact that you haven't read a contract doesn'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 is in electronic form, it's even less likely for someone to read it because we as a society have gotten used to burning through and clicking on 'I accept.'"