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Netscape's SmartDownload court case hots up

We haven't done anything wrong, but we'll remove it anyway, says AOL

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The complaint lodged against AOL/Netscape that its SmartDownload feature was abusing users' privacy is gathering momentum.

The initial complaint by photographer Christopher Specht has been expanded to include three others: John Gibson, Michael Fagan and Sean Kelly*. We don't know why yet but we have been in touch with the four's lawyer and Specht, so we'll keep you informed.

Meanwhile, AOL, while claiming it has done nothing wrong, has said it will remove the feature that allows details of users' IP and file download names to be sent to Netscape in the next version of Navigator.

Whether this is an admission of guilt or just recognition of the growing awareness of privacy issues is something that is likely to be played put in court. Regarding the addition of three more complainants, an AOL spokesman said: "This is just a rehash of an old story on a lawsuit without merit."

He continued that the supposed privacy-invading feature in Navigator was "included in the software in part for technology support purposes," but AOL had "never used or accessed any information about SmartDownload users or files." Again, something that is impossible to prove either way at the moment but will no doubt come to light if the case runs the full gamut of the US legal system.

Our take on this is that AOL simply decided that while the feature (which was born before privacy became a hot topic - and please remember that Netscape was the darling of the IT world before it was bought by AOL) was in Navigator, it would keep hold of it.

Whether it is guilty of prying is therefore dependent on two things: whether it knowingly abused the feature; and the ever-present intangible - what society thinks of its actions in retrospect.

* After some blind research, we believe the other complainants may be:

John Gibson: a musician with a heavy interest in computer software
Michael Fagan: an expert on monitoring and improving software
Sean Kelly: a systems analyst who writes open source software

All are based on the West coast of the US.

Update: The lawyer behind amendments to the case, Joshua Rubin, has replied to our questions. Being a lawyer, he naturally sidestepped most of our questions but did draw attention to additions to the case.

Picking up on evidence that has subsequently been discovered by the Web community, the complaint has refined its criticism of Netscape's SmartDownload to build the argument that the returned information allows for individual recognition. It also adds an extra dimension by claiming that, by following downloads, AOL is capable of observing activity on its competitors' servers. The case is clearly building an anti-trust case on top of the privacy issue. ®

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