Tuesday, December 06, 2005

Spyware, the Sony Rootkit and Canadian privacy laws

Greg Hagen at blog*on*nymity has some interesting things to say about spyware, the Sony Rootkit and Canadian privacy laws:

blog*on*nymity - blogging On the Identity Trail:

...Spyware is considered to be objectionable primarily because of the notorious lack of adequate consent provisions in accompanying EULAs and installation procedures. Suppose, however, that Sony BMG attempted to modify its EULA and installation procedures in order to accord with Canadian privacy legislation. Among other requirements, Sony BMG would have to ensure that, pursuant to the applicable consent provisions such as PIPEDA Principle 4.3, any collection, use and disclosure of personal information of an individual is obtained with the knowledge and consent of the individual. The question that immediately arises is whether the supply of CDs can be conditioned upon such consent, permitting Sony BMG to thereby circumvent privacy protections.

Principle 4.3.3 of PIPEDA requires that an organization shall not, as a condition of the supply of a product or service, require an individual to consent to the collection, use or disclosure of information beyond that required to fulfill the explicitly specified, and legitimate purposes. Does the collection of personal information by XCP serve a "legitimate purpose?" The Canadian Government's Spam Task Force recommendation to prohibit spyware suggests that the use of XCP to protect copyright is not legitimate. If that is correct, then consent that is a precondition to the supply of CDs should be considered vitiated, and one should be able to use a spyware uninstaller to remove XCP with impunity....

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