Discussion on:

Reading online privacy policies cost us $781 million per year

whose only purpose is to protect the other side from litigation.
They don't improve our privacy they only sell our rights to protection off for the sake of convenience.

Right now at least if I say to the judge that I did not read it and would never have given up those rights if I had he'll likely agree with me and throw the thing out of consideration.

In the US its pretty iffy that a EULA or any kind of Click-wrapping is enforceable and even varies from district to district. No district has ruled on them generally and the supreme court has never held the issue up.

http://en.wikipedia.org/wiki/Contracts_of_adhesion#Contracts_of_adhesion
Wall of text to follow:
"Section 211 of the American Law Institute's Restatement (Second) of Contracts, which has persuasive though non-binding force in courts, provides:
Where the other party has reason to believe that the party manifesting such assent would not do so if he knew that the writing contained a particular term, the term is not part of the agreement.
This is a subjective test focusing on the mind of the seller and has been adopted by only a few state courts.
The doctrine of unconscionability is a fact-specific doctrine arising from equitable[citation needed] principles. Unconscionability in standard form contracts usually arises where there is an "absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms which are so oppressive that no reasonable person would make them and no fair and honest person would accept them." (Fanning v. Fritz's Pontiac-Cadillac-Buick Inc.)"

If I understand, there hasn't been a test case yet?

none of them hinged on a general test for the agreement and in cases of the 7&8th District Court opposite findings of the others.
Its my feeling that if they ever arrived at the supreme court they would fail in general along with half the laws related to tech IP and privacy.

All my opinion of course.

And something to remember. I have little experience in that subject.

Can the attorneys whose clients create the privacy policies defend their actions? Or would the policies fail to help them as well?

the whole subject make me nauseous! If there ever was a test case with regular folks as jurors; the shysters wouldn't stand a chance!! !

defending oneself is easier depending on the actual circumstances.
Damage limitations should almost always hold and have in court.
Generally it is not the EULA/Click-wrapping agreement that is held as contractual but a general enforcement of consumer protection and commercial law governing the topics. Of course I'm not a lawyer specializing in said topics. What I know is that judges are human and some will think they are crap others will enforce them as the will of god.
Contract law is something I hope never to be an expert on as that would likely involve being part of a lawsuit.

Real legal precedent won't happen until both sides of a lawsuit are darn sure of it being their solution. And since most are one sided affairs the won't likely happen. So that brings it back to providing a small measure of protection only for the party writing it.

The WIKI topics on EULA and TOS topics are pretty succinct and readable. But they aren't a replacement from having an actual contract specialist understand your situation.

Just wait till the jurisdiction your sued in has a law you've broke....oops!

I appreciate your ability to clear many things up.

Agreed.
The purpose of all of these type of documents is to protect the company from you!

These companies spend millions of dollars on lawyers, so that these documents can be legally correct and entirely incomprehensible (to ordinary consumers).

I'm trying to get an idea of how people respond. Has there been a time when stopped loading a particular application due to what was written in the privacy policy?

Usually when there's a side effect of the contract -- toolbars, consent to monitor, that sort of thing. I don't do that. That's not "free" anymore.

Most of the EULAs online for services I have any interest in partaking are already vetted by hordes of users before me. It doesn't take long before someone blows a whistle and says, "this just isn't right." Even still, it seems this often happens when the terms of service are in fact a trade of service for information. I'm perfectly willing to make that trade, usually. I don't use Gmail for trading medical or financial information. I don't put my social security number or street address on Facebook. What do I care if Google knows what movies I like? If it helps their marketing, pays for their services, and means I can continue to use it for free, that's a fair trade.

This model works for me, as a personal consumer. I would have a different reaction if I were using products for a business. But I'm unlikely to start one and use Google as my service provider. Or Microsoft, or Amazon. Really, this is for more reasons than just privacy. Mostly, in fact, because I like to know where my data is, who can touch it, and be able to revoke that privilege. Also, I would rather have direct influence on when a problem can be solved than to wait around during an outage with no feedback until it's resolved. Again, a personal choice.

Like most people, I don't read most privacy policies, though. I assume my words are public, so there's not much that can be done to offend me. If I'm providing payment info or some form of identity, I use my gut feeling -- and others' reviews -- to gauge their trustworthiness. If it doesn't look legit -- especially if it's too good to be true -- I'll pass.

I have broken some terms of service. I suspect my past offenses are paltry and not worth anyone's time to litigate. However, I don't assume I will be able to plead ignorance if I'm ever tried. C'mon: "Yes, I agreed to this contract. No, I did not read it. Yes, I think that's a good excuse." I lose some faith in humanity here. (Take some responsibility, will ya?!)

Some of the terms we agree to are a little out-of-touch. I think, after all, it is still technically illegal to buy a CD, rip it to iTunes, and have a copy on your iPhone. Backup rights gives you lenience for one copy, correct? Well, that's three, and I also have a raw uncompressed image that I keep for archival. So, four. At best, I could plead that I didn't think it was objectionable given the spirit of the law. I have no doubt I would be laughed out of court, though. There are dozens of similar cases in my everyday life.

Anyway, that's my view. Hope it's of some interest.

I for one appreciate you commenting and I value your opinion.

This has been a growing trend and I think it will continue for many years before someone gets bitten hard by the misuse of their info before we see our test case.

Right now it seems to me that all website owners, service providers, software producers and similar make the assumption that because you're using their product, reading their pages, playing their game, watching their media or what-have-you, that they have a right to collect any info they can about you and the experience you are having and use it in any way they see fit. This includes, but is certainly not limited to, behaviour tracking and the wholesale selling of your information for the purposes of advertising and marketing.

To me, this situation is wrong. Just because I want to use a particular website it doesn't mean I consent to you tracking my movements and selling my details to advertisers.Even telling me up front that by visiting the site I agree to these terms is rubbish - if I opened a book and the first page was "By reading this book you are agreeing to us collecting information about you. This may include your e-mail address, address of where you read this book from, the pages you turn over the most, the words you linger on and other similar information. We reserve the right to pass such information to selected third parties in either our, or your, interest. We also reserve the right to change these terms at any time without prior notification and without calling your attention to it", I WOULDN'T READ IT.

Take the same idea about shops. If I walk into a real shop I know security are watching me and I know that the store and my card provider records what I've purchased. I know this information is used to stock the right sorts of things in the right quantities and to provide new items hat I may like next time I visit. I also know that from time to time someone may analyse the layout of the store and typical consumer behaviour to optimise the layout and to boost sales and convenience for visitors. Now, apply that to a website - analysis of purchased items and of visitor experience to improve the site and stock the right sort of things. Totally acceptable and expected - even without a stupid user agreement.

I suppose I could come out and state that if I'm on your site go ahead and watch what I'm doing there, where I click, what I buy. Use it to improve your site and boost your sales and readership. Do it without my express consent - it's a reasonable thing to do. Don't then collect every bit of data about me you can and potentially share that with other entities for whatever purpose. That isn't cool and you wouldn't get away with that in the physical realm. Digitality (which isn't a word but just roll with it) doesn't excuse grubby practices. You don't own me or what I do so don't assume that you do on the web.

Right now the Internet is a data-miner/advertiser's wet dream. All the power is with those who are watching us. There ARE NO ALTERNATIVES right now (other than 'don't use the Internet'). Wherever you go you're tracked, your data is collected in various ways and sold or used with your assumed consent. No other environment we consume media in is like this and we need to start thinking about how this affects us seriously before we find ourselves in a world where to use any service you have to give up all your personal details to some grubby marketing company to be endlessly advertised at. You thought spam was bad - try aggressively targeting advertisement, all with your own consent.

For a vague idea about how power is shifting firmly into the hands of the producer rather than the consumer, check out what's happening in the games industry right now. The current trend in online passes and such to combat second hand game sales and ever increasing digital distribution channels has led to the rise of the game that the gamer never actually owns. Free to play and microtransaction fuelled games are already at a state where the real costs are the data you feed them with - and the subsequent advertising you then receive.

Right now it all seems benign enough and it's a long way off "We're all doomed! They own us! There is no privacy!" but the debate must be had early enough that we don't complacently slip into a world where assumptions about what data companies and producers own about us are far beyond what most of us would have been comfortable with.


PHEW! Sorry about the long post. Guess I had my wheetabix this morning. If you got this far, thanks for putting up with this!!

Good post! I think you are actually saying about what I did in just a few lines above! Wheetabix tastes pretty good?

You're welcome. I think we were typing at the same time to be fair. One moment there was no comments and by the time I was done, lots before me

I've got to cut my post lengths down though....

Glad you found my rambling interesting. Weetabix was good

I suspect many of the member will read your comments. They are worth it. I particularly enjoyed your analogies. Thank you for sharing.

Thanks for taking the time to feedback. Always nice to know when I've been useful.

I'm OK with how things are, but I do sense the push of the envelope. This is why I still buy physical media. I don't own a Kindle because I like to know that my paper can't be redacted. I buy CDs because I prefer higher quality source material (even if I do often listen to my own lossy encodes) that I can physically transfer to another device at will. I buy Blu-ray discs and then make my own digital copies for home theater and mobile playback.

The rights we give up in the name of convenience aren't acceptable, so I do things on my terms. My own private coup against selling my freedom, for whatever it's worth.

I recently purchased an ebook for my Android Kindle app. I have the real deal -- a valuable Mark Twain edition -- and I did not want to take it on a trip. I was mystified by the amount of alterations. I'm hoping they are honest mistakes, but one has to wonder.

by an acquaintance who worked with creating e-books, differences between e-book & paper-book texts arise because the "source" file(s) that contain the paper-book text have a format that is not used for the input file(s) of the e-book reader. So the source content must be transmogrified to a file which the e-book reader can use. The number and kinds of errors that will occur during that process varies considerably. The source file(s) often have a format which is proprietary and peculiar to the software that was developed for its editors by the publisher just for their own use -- and the software that is used to transmogrify it must be modified so that it can read it. (Frankly, I don't much about input files that e-book readers read .... but, as far as I know, the various readers only read files that are in a proprietary format which is peculiar to the brand of reader).

Usually a human editor(s) will review the two respective texts, either visually reading and comparing them, or using software to compare them and find differences. I don't know why it would be so, but I've been told that the editor cannot always alter the e-book data file text(s) to exactly match the text in the source file(s). I gather that sometimes they aren't given enough time to do more than a cursory read-through and correction, too.

Then there are the huge multitude of books for which no editing software data-input file was ever created. After all, we printed and read books for about 300 years before any electronic data processing device was ever built.

For various reasons, there are often differences in the text in two respective books that contain the "same" work, even if they were produced by the original publisher, especially if they weren't printed in the same "run" of the press. Any popular work is likely to be re-published by other publishers (with permission of the current copyright holders), and the respective texts are usually not identical word-for-word, if only because of typographical errors.

An e-book such as a work by Mark Twain is, of course, a re-publication, but of which printed source? Even if the source is the original manuscript (not likely), there could be differences in interpretation of Mr. Clemen's handwriting -- if you've ever seen a photocopy of it, you would see why.

But, I would expect spelling and grammatical errors to be non-existent.

I am currently reading a freshly-published book that for whatever reason does not space between a period and a W -- in every case.

I think this generation is a little more lax about professional appearance. Blame it on social media, texting, whatever. I'm regularly surprised when respected publishers (e.g., Forbes) post something online that is full of typographical or grammatical errors. It seems like there isn't as much concern over errors -- especially when something is published online. Maybe because of the decreased time-to-publish? But, the content we read is shifting heavily toward online media, so it's no longer an auxiliary outlet -- it's becoming the primary delivery channel.

TV is getting this way, too. Particularly, newscasts, talent shows, that sort of thing -- live interaction, mostly. The production quality is beginning to decline despite better graphics, a sharper picture, multichannel audio. The technology gets better, and the human element gets sloppy.

I waffle between chiding myself on being pedantic over things that ultimately aren't important (hey, I'm a casual guy -- who wants everything all rigid and stuffy, and who am I to judge anyway?) and fretting that these are signs of a dwindling attention to detail that will bleed over into other areas that are more important.

Take games for example. Back when you paid $50 for a Nintendo game cart, the publisher got one chance to get it right. If there were show-stopper bugs, that meant an expensive product exchange. Now, you buy a game and wait for hours while it downloads hundreds of MBs of patches. This isn't totally fair -- after all, NES games were typically 256KB or less, and had to run on exactly one hardware configuration, but this only excuses problems that can be attributed to the complexity of the game or the operating platform.

I don't lose sleep over any of this, but I do find it interesting to ponder sometimes.

Sorry for the cliche. I have a friend that agrees with you, but is adamant that there will be a price to pay.

"... does not space between a period and a W ..."

They probably scanned the printed text with an optical character reader for the input to the software that created the e-book file.

When I took the typing course, we were taught to space TWICE after a period before typing the capitalized letter of the next word that started a new sentence. Two spaces on a monospace font make the text very easy to read rapidly. About ten years later there was a big debate among some use-net groups as to whether the second space was just a waste of expensive and limited storage space, and of 300 bits-per-second modem bandwidth. So people began writing use-net messages with just one space between sentences, after colons (:), etc.. (Do I need TWO periods after an abbreviation that ends a sentence? Any more nits to pick today?) The practice spread to other texts created with software and stored on computers.

Eventually monitors became able to display graphic modes with enough resolution to make variable-space fonts feasible. They had been used in printing since the beginning, but ordinary typewriters used only monospace fonts (until IBM introduced the Selectric with the whirling plastic ball). Now they could be used by text-editing software AKA "word processors". The problem is that the variable "space" character in printing fonts is often quite small, so even more than two must sometimes be used between sentences (especially) to make the text legible.

That wouldn't be "cool" in today's electronic computer age, would it? So texts are printed with just ONE space between a period and a "W" .... and an OCR might simply fail to recognize that tiny *extra* space for many fonts.

But spelling and grammar errors? Those are just either poor or non-existent editing!!

But, it is still shoddy. I doubt that I will continue to read that book or consider any more of that authors -- which could be a mistake.

I could have used this alongside my gaming anecdote. Damn my memory!

E-books are going the same way as games and Amazon are at the forefront of grubby practices in this arena. That's a shame because they're also at the forefront of pushing the tech forward (much like Zuckerberg and Facebook are to social media - pioneering yet useful). You buy a Kindle edition but Amazon still control whether you can use the item you bought and how you can use it and collect data on the whole experience whether you like it or not. Again, assumed ownership and consent.

Here's the danger. We tend to accept the grubby or uncomfortable practices because of the genuinely pioneering approaches coming in alongside them. We need to be careful to separate what's tasty from that which makes us queasy and feedback to our pioneers appropriately so they can truly supply exemplary services we all love to use and are safe to trust.

For me my own personal coup against that one is to own a Sony e-reader. better screen, no silly company controlling what I do with it. To a similar vein I stay away from Apple's products. I'll use my tech my way on my terms, thank you very much.

I trust Amazon for the most part, and it's my choice. What I have a problem with is when a third-party sticks their nose into the mix and my not have a clue who they are. Which by the way is the topic of my upcoming article.

I believe much of this is a way of seducing the content producers. Take Apple for example, with iTunes. Jobs really pushed for the 99c song. Then he pushed to remove DRM. Was this altruistic, or a strong belief in people's rights? I doubt it, but he had to woo both parties:

Producers want their content protected while consumers want freedom. Producers want to maximize their profit while consumers want to pay as little as possible. However, producers will follow the channel with the most visibility, and consumers will purchase from the channel with the most content. So... it behooves both sides to compromise. Jobs did a stellar job of walking this line. He was a champion for both parties.

Interestingly (to me, anyway) I find the small number of online music purchases I've made are more often from Amazon than iTunes. It's almost counter to my preferences -- AAC vs. MP3 is no contest, since MPEG4 is superior in terms of quality vs. size. Amazon has a less-than-perfect track record for QC, and even though the MP3s are encoded at the highest possible bitrate, the quality of those encodes is dependent on the encoder and the result is not always as good as it sh/could be.

Nevertheless, I find myself gravitating toward the MP3. This is mostly for the ubiquity (I DJ from time to time, and MP3s have better software compatibility), but I also trust the format more. I know it can't be locked down -- there's no mechanism for that in the file format.

The industry learned with CDs -- you can't just put it out there without a way to constrain it, otherwise you WILL lose control of it. It's a never-ending cycle of protect and crack, so the rules get more and more strict until we end up with products we never truly own. The sad part is, this never really protects anyone, it just makes life difficult for everyone.

Geez, I talk a lot. Sorry guys.

When what you are saying is of interest and well-said. Thanks.

Talk a lot? That makes two of us.

I agree with a lot of what you say here. I may not like Apple and it's control freak mentality but I have to admit that without them portable digital music and tablet/slate computers would have struggled more than they did. Kudos to them for that at least.

Content producers will choose the highest visibility platform in the vast majority of cases. This is how Amazon, ITunes and FaceBook absolutely rule in their spheres of influence. It's a bit like the old adage - money begets money. In this case, content begets users begets content begets users begets content begets MONEY $$$

The protect and crack argument also covers many areas relevant to a site like TR. Again, I refer the right honourable ladies and gentlemen to my earlier gaming example - and look where content control mentalities are getting us. Gamers are being punished because their chosen passtime is being made needlessly difficult because producers can't adjust to the digital age. Producers still try to enforce old strictures of payment, distribution and control which conversely makes those who aren't buying their product enjoy the better experience. You buy a game with a silly DRM system (anything by Ubisoft or the recent Diablo 3 debacle) and the chaps with the cracked copies, who aren't as restricted as you, seemingly get the better deal. Same with music and digital publishing - why buy protected DRM laden music or e-books when the cracked or unprotected files offer the better experience?

Most of us want cheap, sure, but as users we want to see more content and will be happy to pay a reasonable amount for the right experience. Just because it's digital doesn't mean I don't own it - I'm not 'renting' files from the producer. The data is on my devices being consumed by me after I've paid for it. I may not own the copyright but those files are sure as hell mine to consume how I please.

Bottom line - protect and crack is destructive, costs money, inconveniences real users and doesn't work. The movie industry found it, the music industry found it, the games industry found it, the digital publishing industry is finding it now and not a one of them is learning the lesson. Digital distribution demands a new strategy and a new business model. I hope they catch on soon.

And the "Circle of Life." Until that DNA strand of wondering what's behind that door is evolved out, I don't see a solution.

This is why there is such a lot of pressure to move everything to the "Cloud".

"Shady" Corporate and Government groups will have unlimited access to your info and complete control over what you are allowed to access.

Remember Winston Smith's job, in "1984" by George Orwell?

Wikipedia
http://en.wikipedia.org/wiki/Nineteen_Eighty-Four

"At the Minitrue, Winston is an editor responsible for historical revisionism, concording the past to the Party's contemporary official version of the past; thus making the government of Oceania seem omniscient. As such, he perpetually rewrites records and alters photographs, rendering the deleted people as "unpersons"; the original documents are incinerated in a "memory hole". Despite enjoying the intellectual challenges of historical revisionism, he becomes increasingly fascinated by the true past and tries to learn more about it."

Eliminating "hard copy" is every petty dictator's dream (Corporate and Government).

Yet another facet of the book that is ringing true today.

"McDonald: The idea for this paper came in 2007 when I heard someone interviewed say, ???we know people don???t care about privacy because they don???t bother to read privacy policies.??? I think that notion has been put to rest: many people do care very much about their privacy, but reading privacy policies is an unworkable general solution."

I'd put money on that this 'people don't care' attitude persists among corporate exec types.

BTW I know it's possible to determine how long someone has lingered on a given web page, though I don't know how often (or why) such capability is deployed. I always imagined "they knew" whether someone spent enough time to actually read the policies or not. Has any data of that type, eg actual dwell times on policy pages been collected?

I'm one of those stick-in-the-mud types that reads these things and I try to comprehend everything. There have been many policies and EULAs I've turned down. I've also chided users for violating spirit and letter of an agreement, and even 'fired' a client or two over the issue. (in those cases the EULA in question was hatched in Redmond, Washington... )

People are adopting technologies in droves, without the slightest clue whether there are any long term, fundamental consequences, let alone whether any of those consequences are bad.

To update the classic, "They were the most interesting of times, they were the scariest of times..."

There you go, Michael, making me thing again.

The first example of do we pay attention to these kind of things is that you state he article that the cost is $781 million, and then in the section "Too Late" you state that the cost is $781 BILLION dollars. Who do we believe? This just shows it is hard to grasp what we are reading.

Personally, I usually don't bother to read Privacy Policy statements anymore, if only because they usually proceed to detail exactly what I don't want the policy-makers to do with the data that they collect about me.

I do, however, adopt some measures to frustrate, and perhaps prevent, their efforts to collect such data. Ordinarily I run Firefox 12 with Do Not Track Plus, and with No Script, which I configure to universally block Java Script from some 3rd-party collectors in particular.

To the extent that I succeed, it doesn't matter what their Privacy Policy may be. There are, however, some firms with whom I have declined to "register" a website "account", and others whose websites I rarely, if ever, visit because I have read and don't accept their Privacy Policy and/or their "Terms of Service / Terms of Use".

What we really need is a law, perhaps a Constitutional amendment, which declares that our personal data is our personal property, and, among other provisions, declares that no person or organization has any right to acquire or to use such data without our prior knowledge and consent.

We don't need a Constitutional amendment in this case. A law such as you described would be adequate. Don't use a jackhammer when a regular hammer will do.

Sure I use no-script to block anything but the root site. What happens when the advertisers demand that their scripts run via the root site...
Those monetizing our data have a vested interest in subverting our security.

A law will push this behind a layer of obfuscation and or into the gray & black market. Of course the credit card companies already do all the same privacy hi-jacking things that these sites do with an addition of being able to verify your identity.

Client-side protection is not a workable solution until everyone has it.

Client side security is unworkable, full-stop. As bboyd says: "Those monetizing our data have a vested interest in subverting our security."

If we engage in protecting ourselves client-side all that will happen is the old protect and crack argument. Those monetising the data will simply find a new way to track us and get at our information, thus continuing their grubby little practises. It will be the same as virus writers and security experts - client side protective mechanisms will always be the reaction to new trends and will always be one step behind.

Fact is this - it needs to be enshrined in law that our data is our own and that nobody has a right to it unless we specifically state otherwise before these sorts of things will cease. Harsh penalties need to be applied to this or companies will simply 'take the hit' as the detection rate of what their doing from the average internet user will be low - after all, how many of us actually try and find out how a cold-calling company got hold of your phone number?

(I heartily recommend asking to speak to a company's dialler manager next time a sales person calls you out of the blue and then demanding information on where they buy their data in from. Watching them try and wriggle out of telling you anything is hilarious)

I have wondered about using the legal system. But, wouldn't these types of laws have to be globally accepted.

For the current model of the internet to prosper, yes, it would. Many of the internet's most optimistic fans have prophisised that the Internet (or a global network very like it) would be one of the keys to breaking down international barriers though - creating an international law globally accepted could be the snowflake that starts that avalanche.

Let's face it though - in today's climate this would never happen. Our nations are too far away from truly co-operating so how would this sort of law really work?

I believe that we'd end up with the 'AOL effect' - each country would own and operate it's own national network governed by it's own laws and hooked up to the global internet for access. Censorship, prosecution and conditions would push Internet companies into favourable territories much the same as what happens in the pirate community right now.

Pessimism or realism? I can't quite decide right now.

Apart from peoples time that is wasted by facebook now it is good to see how much money they waste on a simple thing that they made over-complicated.

Privacy polacy should be as short and simple as this:

Our privacy policy: We respect ALL of your privacy all of the time.
But but no, Big greedy FB even changes privacy policy into data use policy????
thus ignoring privacy alltogether????

They should not only be boycotted, someone should tell Obama to fly a few planes into this tower aswell. Brutality policy is what i call it.

Was Zuckerberg as a kid also this brutal? How can it be possible that idiots like this may run destructive companies like that?

How to delete this madness? Lowlevel format the damn thing and then strike it with a hammer.

To me, it always goes back to that. Businesses want opt-out, privacy types want opt-in.