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Netscape ruling a boost for online privacy

SmartDownload equivalent to a free newspaper, says judge

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The case against online snooping by AOL through its SmartDownload software has had a further boost thanks to the decision by a federal judge that people are not bound by the company's online contract as they did not actively agree to it.

The SmartDownload software comes packaged with Netscape Communications (AOL bought Netscape in 1998) and was found to log user downloads and send the data (including file name, file server and user IP address) to Netscape without informing the user. If you were signed up with Netscape it would also send your email address.

Judge Alvin Hellerstein decided that since Netscape didn't require people to click a button to express their consent when downloading the software, they aren't bound to the licence agreement. The decision removes a main plank from AOL's defence.

The judge said: "From the user's vantage point, SmartDownload could be analogised to a free neighbourhood newspaper, readily obtained from a sidewalk box or supermarket counter without any exchange with a seller or vendor. It is there for the taking."

In the case brought originally by Christopher Specht and later by John Gibson, Michael Fagan and Sean Kelly, it was claimed that AOL (Netscape) has illegally monitored personal details and so broken federal interception laws.

AOL's defence will now have to rely upon the fact that it did nothing intentionally wrong and that it acted in good faith when it removed SmartDownload in the next version of the Communicator software.

Which way the case will go is anyone's guess but this decision is certainly a boost for online privacy with the judge effectively making any company liable for their software does if it doesn't specifically ask users to sign up to their contract. ®

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