September 28, 2010

Barcodes as EULAs, Notices, Contracts, Disclaimers, Legal Terms

Augmented Reality as No Trespassing Sign

An app on a smartphone (iPhone, Android) can use the phone's camera to read a bar code (QR Code) and then display information associated with the code.

For instance, Stickybits offers custom barcode stickers, where each sticker bears a unique code and refers to unique information.  A user can stick the code on any physical object or space, such as a coffee pot or the door to a hotel.  Then the user can direct that when a smartphone scans the code, the phone will display text, an image, a video, a web page and so on.

With the right app, the phone might display a form of “augmented reality,” which presents a live video image of the physical object or space to which the sticker is attached, together with additional information such as a video.

I ponder this Buck Rogers technology.  How might it be used to present legal information in association with an object or space?  Example:  I could place a bar code on a bottle of medicine.  Under the code might be the words “Scan for Warnings, Disclaimers and Terms of Use” . . . not unlike the “Terms of Use” hyperlink commonly at the bottom of web pages today.  If a patient scans the code, his phone could present a lengthy contract, saying that the patient agrees to the contract by opening the bottle.


Thus a new frontier will open in the eternal war over contracts of adhesion.  The war has included battles over shrinkwrap agreements (on boxes of software), clickwrap agreements, and end user license agreements.

A student in one of my SANS courses came to call the terms of use on web pages “drive-by contracts” because a user might be deemed to have agreed to a contract simply by visiting a web page.

How enforceable are such agreements?  The answer is it depends.  I suspect courts are more ready to enforce “drive-by contracts,” web no-trespassing notices*, augmented reality agreements and the like against unsympathetic, parties such as hackers or malicious intruders, and against sophisticated parties such as professional investigators.

Update:  California attorney Dan Balsam publishes a contract he says is binding on spammers. http://hack-igations.blogspot.com/2010/12/web-contract-eula-published-to-world.html More: Can hackers consent and agree to be surveilled and thwarted?

–-Benjamin Wright

Mr. Wright teaches cyber investigation law at the SANS Institute.

* A web no-trespassing sign might deter so-called OSINT (open source intelligence) gathering by the adversaries of the web site owner.  Adversaries might include plaintiff lawyers or labor union organizers.

Sep 28, 2010 10:58:48 AM | augmented reality, contract, EULA, hacker spy, labor union, open source intelligence, OSINT, terms conditions

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Attorney Benjamin Wright helps others navigate the law of technology.

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