J
Jeff Needle
Current Issue Date: 08/19/2005
Theme: "Out of Harm's Way--
Avoiding Intruders, Malware, and Data Thieves"
(Click Here for the Table of Contents)
By Kirk Kirksey
Google Desktop Search’s Terms and Conditions:
Just So You Know
By Kirk Kirksey
I love Google. Really. I use the Big G constantly, but several weeks ago,
I came across something that makes me a tad nervous. My neck started
twitching, and this is always a bad sign.
Before I spill the beans, I want to see if you can spot the source of my
involuntary animation. Fire up your browser and proceed to the
very-familiar Google home page. Now click on the More link. You’ll get a
page showing a gaggle of Google Services and Google Tools. There are
Groups, Images, Blogger, Hello, Picasa, and Desktop Search. Go ahead,
click on a couple.
Now click on Desktop Search, and you’ll notice something a little
different. Google’s Desktop Search is the only Google add-on or tool
requiring the user to actively accept Google’s own Terms and Conditions
and Privacy Policy before downloading the tool. All other Google offerings
simply supplied a link to G’s Privacy Policy.
This small curiosity made me sit up and say “Hmm?†I decided to do some
digging.
Terms and Conditions
In general, “terms and conditions†are those things we never read. Who has
the time or the stomach for it, anyway? For one thing, they are everywhere—
on every piece of software we purchase, on many of the Web sites we want
to visit, and on applications (like G’s Desktop Search) we want to
download. Usually, the first few sentences of the T’s and C’s appear in a
scroll box, and we are faced with a decision. Click No, and you don’t get
the prize. Click I Agree, and life is good. Click Read, and you are faced
with screen after screen of mind-numbing legalese. I don’t think I know a
single person who bothers.
As it turns out, terms and conditions for packaged software, either off
the shelf or downloaded from the Internet—known as “click-wrapped terms
and conditionsâ€â€”have been upheld by the courts as a legally binding
contract. (Interesting note: In the case of “off the shelf,†the buyer
usually cannot read the “shrink-wrapped†contract until after the product
has been purchased and opened.) The current legal standing of
click-wrapped T’s and C’s stems from a 2001 court case involving Netscape
and a bunch of angry users. Here’s how the deal went down.
Netscape supplied a piece of software called SmartDownload, a product
designed to help users quickly download and manage files. Behind the
scenes, however, SmartDownload secretly transmitted personal information
back to the Netscape mother ship. A bunch of New York users sued, claiming
violation of the Electronic Communications Privacy Act and the Computer
Fraud and Abuse Act. Netscape tried to force users to arbitrate rather
than go to trial by citing a clause in the user agreement requiring
arbitration of all disputes. Here’s the catch. The Terms and Conditions of
SmartDownload were simply posted on the product’s Web site with the
notice, “Please review and agree to the terms of this agreement.†Users
were never forced to click an I Agree button as a condition for obtaining
and using the software.
The users won the lawsuit. In a piece of very clever wording, the courts
said the Netscape SmartDownload arrangement created a “browse wrapâ€
agreement that “reads as a mere invitation, not as a condition.†This
means that terms and conditions (also called terms of use or terms of
service) with no I Agree button simply won’t hold water in a court of law.
Now back to Google’s Desktop Search.
Things That Make You Go Hmm
I was familiar with the Netscape decision, which is probably why Desktop
Search’s Terms and Conditions requirement jumped out at me. I decided to
(gulp) read the Big G’s T’s and C’s, as well as the Privacy Policy, which
is also a Google Desktop use requirement.
As you would expect, this is a contract written by lawyers to protect the
company, not you. Most of the stuff will not surprise anyone familiar with
one-sided, non-negotiated contracts. The company is held harmless for any
damage caused by the software. Any legal disputes will be governed by
California. If one piece of the T’s and C’s is found to be illegal, the
rest of the contract remains intact.
The paragraph that caught my attention was entitled “Consent to Collect
Non-Personal Information.â€
“Google Desktop Search may collect certain non-personally identifiable
information that resides on your computer, including, without limitation,
the number of searches you do and the time it takes to see your results.
Unless you (and the users to whom you distribute in accordance with these
Terms and Conditions) choose to opt out, either during installation or at
any time after installation, non-personal information collected will be
sent to Google.
In other words (as I read the agreement, anyway), Google Desktop Search,
and Google Desktop Search alone, will decide which information on my
computer is non-personally identifiable. Its selection could change at any
time. I will not be given a choice in the matter. The product will gather
this information, then send it back to Google for uses unknown.
Nowhere in this click-wrapped contract, or on the Web site, could I find a
list of information Google Desktop Search collects. In a silly, misguided,
deluded effort to discover exactly what data Google Desktop Search
stockpiles from my computer, I e-mailed the company using contact
information cited on the Big G’s Web site. I requested a comprehensive
list of collected information. To date, I have received no reply.
* * *
The terms and conditions requirement for software is simply a fact of
life. Companies must legally protect themselves. We will continue to
ignore the T’s and C’s, and click the I Approve button. I admit it; I am
as guilty as the next Netizen. But in the case of Google Desktop Search,
this user has decided to look elsewhere for a desktop search tool. Just so
you know.
Check out Kirk’s new book, Computer Factoids: Tales From the High-Tech
Underbelly, at Amazon.com and www.computerfactoid.com.
Today's Date: 08/25/2005
(Click Here)
(Click Here)
Send mail to Editor with questions about editorial content.
Send mail to Webmaster with questions or comments about this Web site.
Copyright © 1997-2005 The Byte Buyer, Inc.
ComputorEdge Magazine, 4740 Murphy Canyon Road Suite 250, San Diego, CA
92123. (858) 573-0315
Theme: "Out of Harm's Way--
Avoiding Intruders, Malware, and Data Thieves"
(Click Here for the Table of Contents)
By Kirk Kirksey
Google Desktop Search’s Terms and Conditions:
Just So You Know
By Kirk Kirksey
I love Google. Really. I use the Big G constantly, but several weeks ago,
I came across something that makes me a tad nervous. My neck started
twitching, and this is always a bad sign.
Before I spill the beans, I want to see if you can spot the source of my
involuntary animation. Fire up your browser and proceed to the
very-familiar Google home page. Now click on the More link. You’ll get a
page showing a gaggle of Google Services and Google Tools. There are
Groups, Images, Blogger, Hello, Picasa, and Desktop Search. Go ahead,
click on a couple.
Now click on Desktop Search, and you’ll notice something a little
different. Google’s Desktop Search is the only Google add-on or tool
requiring the user to actively accept Google’s own Terms and Conditions
and Privacy Policy before downloading the tool. All other Google offerings
simply supplied a link to G’s Privacy Policy.
This small curiosity made me sit up and say “Hmm?†I decided to do some
digging.
Terms and Conditions
In general, “terms and conditions†are those things we never read. Who has
the time or the stomach for it, anyway? For one thing, they are everywhere—
on every piece of software we purchase, on many of the Web sites we want
to visit, and on applications (like G’s Desktop Search) we want to
download. Usually, the first few sentences of the T’s and C’s appear in a
scroll box, and we are faced with a decision. Click No, and you don’t get
the prize. Click I Agree, and life is good. Click Read, and you are faced
with screen after screen of mind-numbing legalese. I don’t think I know a
single person who bothers.
As it turns out, terms and conditions for packaged software, either off
the shelf or downloaded from the Internet—known as “click-wrapped terms
and conditionsâ€â€”have been upheld by the courts as a legally binding
contract. (Interesting note: In the case of “off the shelf,†the buyer
usually cannot read the “shrink-wrapped†contract until after the product
has been purchased and opened.) The current legal standing of
click-wrapped T’s and C’s stems from a 2001 court case involving Netscape
and a bunch of angry users. Here’s how the deal went down.
Netscape supplied a piece of software called SmartDownload, a product
designed to help users quickly download and manage files. Behind the
scenes, however, SmartDownload secretly transmitted personal information
back to the Netscape mother ship. A bunch of New York users sued, claiming
violation of the Electronic Communications Privacy Act and the Computer
Fraud and Abuse Act. Netscape tried to force users to arbitrate rather
than go to trial by citing a clause in the user agreement requiring
arbitration of all disputes. Here’s the catch. The Terms and Conditions of
SmartDownload were simply posted on the product’s Web site with the
notice, “Please review and agree to the terms of this agreement.†Users
were never forced to click an I Agree button as a condition for obtaining
and using the software.
The users won the lawsuit. In a piece of very clever wording, the courts
said the Netscape SmartDownload arrangement created a “browse wrapâ€
agreement that “reads as a mere invitation, not as a condition.†This
means that terms and conditions (also called terms of use or terms of
service) with no I Agree button simply won’t hold water in a court of law.
Now back to Google’s Desktop Search.
Things That Make You Go Hmm
I was familiar with the Netscape decision, which is probably why Desktop
Search’s Terms and Conditions requirement jumped out at me. I decided to
(gulp) read the Big G’s T’s and C’s, as well as the Privacy Policy, which
is also a Google Desktop use requirement.
As you would expect, this is a contract written by lawyers to protect the
company, not you. Most of the stuff will not surprise anyone familiar with
one-sided, non-negotiated contracts. The company is held harmless for any
damage caused by the software. Any legal disputes will be governed by
California. If one piece of the T’s and C’s is found to be illegal, the
rest of the contract remains intact.
The paragraph that caught my attention was entitled “Consent to Collect
Non-Personal Information.â€
“Google Desktop Search may collect certain non-personally identifiable
information that resides on your computer, including, without limitation,
the number of searches you do and the time it takes to see your results.
Unless you (and the users to whom you distribute in accordance with these
Terms and Conditions) choose to opt out, either during installation or at
any time after installation, non-personal information collected will be
sent to Google.
In other words (as I read the agreement, anyway), Google Desktop Search,
and Google Desktop Search alone, will decide which information on my
computer is non-personally identifiable. Its selection could change at any
time. I will not be given a choice in the matter. The product will gather
this information, then send it back to Google for uses unknown.
Nowhere in this click-wrapped contract, or on the Web site, could I find a
list of information Google Desktop Search collects. In a silly, misguided,
deluded effort to discover exactly what data Google Desktop Search
stockpiles from my computer, I e-mailed the company using contact
information cited on the Big G’s Web site. I requested a comprehensive
list of collected information. To date, I have received no reply.
* * *
The terms and conditions requirement for software is simply a fact of
life. Companies must legally protect themselves. We will continue to
ignore the T’s and C’s, and click the I Approve button. I admit it; I am
as guilty as the next Netizen. But in the case of Google Desktop Search,
this user has decided to look elsewhere for a desktop search tool. Just so
you know.
Check out Kirk’s new book, Computer Factoids: Tales From the High-Tech
Underbelly, at Amazon.com and www.computerfactoid.com.
Today's Date: 08/25/2005
(Click Here)
(Click Here)
Send mail to Editor with questions about editorial content.
Send mail to Webmaster with questions or comments about this Web site.
Copyright © 1997-2005 The Byte Buyer, Inc.
ComputorEdge Magazine, 4740 Murphy Canyon Road Suite 250, San Diego, CA
92123. (858) 573-0315