Adware: Clickwrap Licenses and Informed Consent

Part of an ongoing series. Previously: Part 1: Defining Adware
Quality of Consent to Adware Installation
Both Claria and WhenU are emphatic that they are installed with the consent of their users. WhenU tells its users:

SaveNow was installed on your computer as a module that comes with free software that you downloaded from the Internet. At that time, you accepted a license agreement as part of the download process. It is our strict policy to distribute SaveNow only to users who have accepted the license agreement.

In his discussions with the press, WhenU CEO Avi Nadler emphatically asserts that WhenU software executes on personal computers with the express consent of all of its users.
However, few GAIN or WhenU users are aware that they agreed to have GAIN software display ads on their computers. A survey conducted by PC Pitstop.com finds that only 24.9% of GAIN users and 13.3% of WhenU users are aware that the programs are installed on their systems. A survey of GAIN users, commissioned by the plaintiffs in the consolidated litigation against Claria, finds that only 13.2% of GAIN users believed that they consented to have GAIN show advertisements on their computers. A mere 4.1% of GAIN users believed that they consented to have Claria monitor their web surfing behavior. Only 10.5% of GAIN users and a mere 4% of WhenU users read the license agreement prior to installing the software. Only three percent of GAIN users and 1.6% of WhenU users read the license agreement for longer than five minutes prior to installing the software. WhenU notes that the PC Pitstop surveys are not scientific and should not be considered representative of all of its users. However, this data hardly supports the idea that GAIN or WhenU users have truly offered informed consent before installing the software. Furthermore, visitors to a website like PC Pitstop are likely to be interested in how their computers work and may be more savvy than computer users in general.
Both SaveNow and GAIN present the terms of license agreements and require affirmative assent before installation. SaveNow and GAIN users indicate their consent to install the software by accepting a “clickwrap” license. A clickwrap license appears on a computer screen and a user must accept the license terms before the software will install itself. However, as part of the installation process for both Claria and WhenU software, the clickwrap license appears only as one screen in a multiple-screen series of prompts to which a user must indicate assent. When installing SaveNow, 13 words of WhenU’s 1,224 word license agreement are presented in a small box that occupies less than one quarter of a window in the installer program, tucked away in the lower left-hand corner of that window.1 An installer for GAIN displays only 73 words of Claria’s 6,464 word license agreement.
Read on


Clickwrap Licenses
Courts have generally found clickwrap licenses to be enforceable under contract law. In ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), a clickwrap license was found to be valid and enforceable so long as the license terms are presented on screen and must receive assent before installing the software. However, when software license terms are presented on a separate web page and the software will install without an affirmative manifestation of consent, that “browsewrap” license is not enforceable.2 A court will find a clickwrap license enforceable so long as the terms are presented and the user manifests assent to those terms before installing the software. While there should be no question that these are valid clickwrap contracts, perhaps that alone should not be sufficient disclosure when software is potentially sending personal information across the Internet.3
Because users have a heightened interest in privacy in their sensitive personal information, they must have the opportunity to give informed consent in order to make informed decisions about privacy. Claria?s and WhenU?s current clickwrap license presentations fail to obtain a useful level of consent. Less than 5% of GAIN users are aware that the software transmits information about web browsing habits, users need better information about the privacy implications of installing adware.
Regulatory Goals
Software that gathers and transmits personal information or pops up contextual advertising must be required to clearly disclose these practices and acquire specific consent. Any legislation or regulations should require adequate notice and informed consent to adware practices rather than merely banning the software outright. Even in this ad-saturated media environment, some users will want to see contextual or comparative advertising. WhenU and Claria both provide some benefit by providing contextual information. Moreover, it would unnecessarily restrain competition to simply create a blanket prohibition on adware. The most efficient approach toward regulating adware and spyware will promote openness and transparency in order to avoid violating the Federal Trade Act?s prohibition against deceptive trade practices. This goal can requiring software to follow three key principles: disclosure, informed consent and straightforward uninstallability.
Adware developers should be required to disclose in clearly visible plain language (not hidden in a scroll box) and receive specific separate consent for each adware feature:
1. If personally-identifying information will be collected and transmitted by the software to the developer or a third party
2. If clickstream data will collected and transmitted
3. Whether an application will pop-up new windows and show advertising
4. Whether an application will make any changes to system settings (changing homepage, automatically loading itself.)
Developers should not need to obtain specific consent to each type of ad to be displayed on users? desktops. Already, Claria provides a complete description of the types of ads delivered by GAIN on its web site. In order to balance the need for disclosure with the goal of making software simple to install, adware developers should not need to provide too many notices in the clickwrap license. Obtaining specific consent to receiving ads while providing a link to a catalog of the various ad delivery vehicles should sufficiently inform most users. The better informed consumers at installation, the less confused they will be when programs cause ads to appear on their computer desktops. Informed consent from users will also serve to minimize consumer confusion about the source of ads delivered by adware programs.
One model to follow to improve the quality of informed consent may be the Pure Food and Drug Act of 1906. Simson Garfinkel proposes improving the quality of informed consent by using a labeling model inspired by the Roosevelt-era legislation that established the FDA. Software would be required to adhere to an operating system?s standard methods for installation and removal. Garfinkel goes on to propose a standard method and iconography for labeling the possible behaviors of adware.
Google suggests a series of guidelines designed to help fight deceptive Internet software. The principles include: consensual installation, upfront disclosure of its significant functions, simple removal, and clear behavior. Google?s own software, the Google Toolbar, provides a good example of how to provide clear notice about software features at installation. When installing the Google Toolbar, users are presented with a choice between enabling advanced features and sending anonymous information to Google or disabling those advanced features and not sending information. This choice is presented in a single screen of the installer and is not hidden in a scrolling box, like the full license terms for SaveNow or GAIN. The Google Toolbar user must select to enable these advanced features and then continue with the installation.
1Word count is based on the license included with SaveNow, downloaded with WeatherCast from http://www.whenu.com/products.html. The WhenU License Agreement and Privacy Policy is available at http://www.whenu.com/license_privacy.html An example of the format in which the SaveNow license agreement is presented is available at WhenU Frequently Asked Questions
2Specht v. Netscape Communs. Corp., 306 F.3d 17 (2d Cir. 2002).
3See Ryan J. Casamiquela, ?Contractual Assent and Enforceability in Cyberspace,? 17 Berkeley Tech. L.J. 475 (2002). As for whether these terms should be enforceable, compare the reaction of a 10-year old considering a clickwrap license in Erik J. Heels, ?The ‘Duh’ of Shrinkwrap Licenses,? LawLawLaw, Apr. 3, 2004: ?DUH! It’s not like I have any CHOICE! They’ve already got my money! OK, I’m clicking ‘accept.'” http://www.lawlawlaw.com/no-choice-shrinkwrap.html.