I have a recurring nightmare. Microsoft CEO Steve Ballmer shows up on my doorstep demanding my left kidney, claiming that I agreed to this in some "clickwrap" contract. In my waking life, I am inundated with such agreements - privacy policies, downloading poliicies, security policies, software licensing agreements - all vying for my assent. As a lawyer, I write these contracts for clients, but I must confess that I never read them online. Who has the time?
Unfortunately, the law assumes we all do - and that by clicking, we are "agreeing" to the unread privacy policy, to spyware being installed on our systems, or to pornographic pop-up ads. Almost every site has terms and conditions; as a result, regular Internet users are faced with dozens of such agreements a week. Some come in the form of the ubiquitous "I Agree" button, others in the form of prose hidden at the bottom of the homepage under the moniker "Legal."
Increasingly, companies have been putting some pretty nasty things into their clickwrap agreements - such as that they can collect and sell your detailed personal information or install software that will capture your every keystroke. A few firms have you agree that, even if they violate their own promises to secure your information, you won't ever sue. This is not legal boilerplate, the kind that everybody assents to when renting a car or buying a ticket to a ball game. It affects the privacy, security, and operability of all the information you access online.
What is needed - desperately - is a law robot. A browser-based automaton that could be adjusted to match your tolerance for legal mumbo jumbo. Take privacy agreements, for example: The browser could be set to share your identity only with sites that promise to use the information solely to complete your purchase, or that agree not to share it with third parties, or any of a host of options. Web site operators would use a similar query-based method to set up their privacy policies. Of course, they could write their own language, but they would then run the risk that your robolawyer wouldn't accept it.
Once you establish privacy settings, your browser would transfer personal data (after prompting you) only to sites that conform with your privacy requirements. And you could always overrule the settings. Is it worth saving $50 on a new iPod by buying from a site with no privacy policy? You decide.
This practice would allow users to take control, deciding in advance which policies are acceptable and which aren't. And privacy is just the start. Many vexing issues of online life boil down to assent and control. Who asked you if they could spam you with porn? Who put John Ashcroft in charge of the Internet police? Your cyberattorney could be used to block content you find offensive, improper, or harmful.
Your robolaywer would also deal with spyware. The real problem with spyware is not technological, but legal. If I know that an application is going to capture my keystrokes, and I've agreed to it, it's not spyware. If I don't know what a program will do, or don't authorize it, then it's likely a felony. The spyware sites would have to ask your legal bot for permission. Falsely describing what the spyware does would likewise be a deceptive trade practice, and therefore no new spyware law would be required.
There have been small steps in this direction, most notably the World Wide Web Consortium's Platform for Privacy Preferences Project. Unfortunately P3P, as it's known, is limited to relatively simple matters of online privacy, ignoring other kinds of online contracts like software license agreements, ISP policies, and terms of service contracts.
We will never fully automate the reading of contracts or agreements online. Nor would we want to - after all, Internet lawyers need jobs, too. But by automating the vetting of clickwraps or implied agreements we could make everybody sleep a little easier.
Mark D. Rasch (www.solutionary.com) *is senior vice president of Solutionary, a managed security service provider, and founder and former head of the Department of Justice's computer crimes unit.*VIEW
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You Need a Robolawyer
