There's an entertaining clip from Glenn Beck's Fox News program making the rounds on the Internet lately, featuring this language from the Terms of Service for the "Cash for Clunkers" program:
This application provides access to the [Department of Transportation] DoT CARS system. When logged on to the CARS system, your computer is considered a Federal computer system and is the property of the U.S. Government. Any or all uses of this system and all files on this system may be intercepted, monitored, recorded, copied, audited, inspected, and disclosed... to authorized CARS, DoT, and law enforcement personnel, as well as authorized officials of other agencies, both domestic and foreign.
While this language was accessible only by registered dealers, and not the public (and has apparently now been removed), it nevertheless is a shocking example of the kind of problems that can come with click-through agreements written by faceless lawyers and basically imposed on the rest of us. No one should ever try to force you to "agree" that accessing a government website turns your computer into a government computer or gives up your privacy rights in the other contents of your computer.
This hopefully careless language demonstrates the concerns that EFF has long raised about the creeping reduction in user privacy and rights online that we see through various means, including terms of service, cookies and even the “phone home” nature of some of our devices like the Amazon Kindle. This sort of contracting away of our privacy and rights is bad enough when companies do it — it should be off limits for government.
Unfortunately, the commentary of Fox anchor Kimberly Guilfoyle was also wrong about the scope of the privacy issues:
They are jumping right inside you, seizing all of your personal and private information, and absolutely legal, Glenn, they can do it... They can continue to track you, basically forever, once they've tapped into your system, the government of course has, like, malware systems, and tracking cookies, and they can tap in any time they want.
Clicking "continue" on a poorly worded Terms of Service on a government site will not give the government the ability to "tap into your system... any time they want." The seizure of the personal and private information stored on your computer through a one-sided click-through terms of service is not “conscionable” as lawyers say, and would not be enforceable even if the cars.gov website was capable of doing it, which we seriously doubt. Moreover, the law has long forbidden the government from requiring you to give up unrelated constitutional rights (here the 4th Amendment right to be free from search and seizure) as a condition of receiving discretionary government benefits like participation in the Cars for Clunkers program.
The problems with overreaching terms of service are real, and EFF has been working hard to combat them, especially when your privacy is at stake. Companies and government departments repeatedly sow the seeds of confusion, concern and outrage when they sneak catch-all terms into the small print. Our ToSBack site tracks these agreements and allows the public to find out what they say and track their changes over time. But terms of service agreements don’t go as far as allowing the government ongoing, free range into your personal computer with a single mouse click. At least not yet.