ContractsProf Blog

Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Monday, July 15, 2013

Tracking and Data Collection - Coming to a Store Near You!

As Jeremy Telman noted in his post, the OUP website which sells my forthcoming book on wrap contracts contains a wrap contract that requires users to the site to accept cookies.  This type of wrap is  what I refer to as "contract as notice", and much better than what most websites do, which is implement a "notice as contract".  The OUP  website requires specific assent to a particular term which raises the salience of the term.  My guess is that OUP provides this because its parents company is based in the U.K. which has better laws about this kind of stuff.  Most US corporate websites throw a bunch of terms into a browse wrap to which the user is deemed to have given blanket assent.  Visitors to OUP's website -- which requires specific assent -- are made aware of the cookies, whereas most visitors to other sites aren't even aware that a contract governs.  This is the difference between effective notice and  ineffective notice, aka contracts that nobody reads but that courts deem are still enforceable via constructive assent. 

The real problem with not reading is the nature of the terms that go unread--if you don't read terms, what's to stop a company from piling them on, adding more intrusive privacy stripping terms and rights deleting  provisions ( to use a Radin-esque term). According to case law, not much. 

I set my browser to alert me when I visit a website with cookies and I just couldn't visit any site without having to press the "allow" icon several times.  Now I allow first party cookies, and ask for a "prompt" from third parties. I wouldn't be able to use my computer otherwise.

And now, we have the pleasure of being tracked in person.  This morning, the NYT reported that some physical stores have started testing technology that allows tracking of customers' movements by using their smart phone signals. Nordstrom tried the old "Notice as Contract" method, by posting a sign telling customers they were being tracked.  Those customers who saw the sign were creeped out.  How long before we get used to these notices - and start to ignore them?  How long before they are so ubiquitous that we have as little choice as we do online to stop a company from tracking and collecting information about us?

BTW, you can't read the NYT article unless your browser is set to allow cookies.....

 

[Nancy Kim]

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