[LINK] Fwd: Census Config [Was: Personal comments on the eC

[Roger Clarke]

>On 3/8/06 2:42 PM, "Roger Clarke" <Roger.Clarke at xamax.com.au> wrote:
>>  Off-list, someone's told me IE may turn Java on even if it's turned off.
>>
>>  Is that true??
>>
>>  If so, it's a further, and very substantial reason never ever to use IE.
>>
>>  Is it true that:
>>  (a)  MS is mucking around with your machine without your consent or
>>        knowledge, and arguably over-riding your consent??  and
>>  (b)  MS is providing the capability for every web-site provider to
>>        do anything on your machine that Java intentionally or
>>        unintentionally enables it to do, again without your consent or
>>        knowledge, and arguably over-riding your consent??

At 16:03 +1000 3/8/06, Stilgherrian wrote:
>No, it's all WITH your consent.
...
>:)

Okay, ever the pedant, I'll keep going  (:-)}

Consent isn't, unless it's 'informed consent' (aka "what part of 
'yes' don't you understand?"):
http://www.anu.edu.au/people/Roger.Clarke/EC/eConsent.html#CChar

"Another requirement is for 'informed consent', by which is meant 
that, for consent to be meaningful, the individual needs to 
understand its implications. See Hartnett (2000) for a treatment of 
the topic in the health care context. A consent must be specific and 
bounded. In particular, it must be clear from the expression, or at 
least from the context:
*   what *action(s)* the consent authorises. This requires reasonable 
specificity in relation to, for example, the use of credit card 
details, and of the items of data it encompasses, from whom they are 
to be collected, by whom they are to be used, and to whom they are 
permitted to be disclosed;
*   *to whom* the authorisation is provided. For example, is it given 
to a particular company, or merely a business unit within it, or also 
to related companies; and what happens in the event of a merger or 
takeover;
*   for what *purpose(s)* the authorisation applies. Considerable 
difficulties arise from generalised expressions of purpose, such as a 
government agency stating 'for the performance of the agency's 
functions', and a company declaring 'marketing of goods and 
services'; and
*   over what *time-period* it operates.

"A further criterion used to judge whether a consent is effective is 
'freely-given consent'. This implies that no legal compulsion, 
duress, coercion or undue influence must be involved. There may, 
however, be inducements, or a quid pro quo. Indeed, contract law 
requires consideration to be provided by both parties as a 
pre-condition to the formation of a contract (and hence to the 
existence of a consent)".

I believe that court judgements would follow something like the above 
logic [but of course only 'something like', with all manner of 
variations over jurisdictions, cases and time].  And no, I haven't 
done the hard yards of analysing consent as treated in judgements, 
sorry.

-- 
Roger Clarke                  http://www.anu.edu.au/people/Roger.Clarke/
			            
Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA
                    Tel: +61 2 6288 1472, and 6288 6916
mailto:Roger.Clarke at xamax.com.au                http://www.xamax.com.au/

Visiting Professor in Info Science & Eng  Australian National University
Visiting Professor in the eCommerce Program      University of Hong Kong
Visiting Professor in the Cyberspace Law & Policy Centre      Uni of NSW