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Copyright (c) 2006 University of Nebraska
Nebraska Law Review

ARTICLE: Internet Cookies: When is Permission Consent?


85 Neb. L. Rev. 383


Max Stul Oppenheimer*


Consent is the Philosophers' Stone 1 of the law: it can transmute an unconstitutional search into a lawful one, a criminal act into a legal one, or a tort into a contract. As technology has evolved, so has this fundamental legal concept. New forms of communication call for new ways to obtain and manifest consent. Examples include shrink-wrap licenses, 2 click-to-accept licenses, 3 faxed signatures, 4 e-mails, 5 and e-signatures. 6 Each of these forms, however, requires some affirmative action by the person sought to be bound. An emerging issue is whether permissions granted by a computer program can constitute consent on behalf of the computer's owner, particularly where the permissions are set by default in the distributed form of the program rather than by a conscious decision by the owner to set them.

On November 8, 2005, the Boston Globe reported that Computer Associates International had concluded that Sony BMG was distributing music compact discs which contained not only the music that purchasers wanted, but also code which would run on the purchaser's computer, collect information about the purchaser, and report that information back to Sony. 7 On November 18, 2005 (following Microsoft's decision to classify the Sony program as spyware and provide tools to remove it), 8 Sony recalled the CDs and offered to replace those that had already been sold. 9

On December 29, 2005, the New York Times reported that the National Security Agency had used cookies in transactions on its website 10
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