You may recall a couple years back, a controversy over the fact that Sears appeared to be installing spyware
on the computers of online customers who had agreed to join a "community." Sears insisted this wasn't true, and that it really was software to help create a community of shoppers -- but the evidence suggested otherwise
. The FTC eventually got involved, and now Sears has settled the charges that it was unfairly spying on users
without clearly indicating this to users. Sears insisted that because the fine print of the terms of service for joining the community said that it would track your online browsing, it was in the clear, but the FTC noted, accurately, that most users would not have gotten that impression from signing up. As Thomas O'Toole notes about this ruling
I'm pretty sure that attorneys would understand the breadth of the consent covered by the phrase "online browsing." It means everything. The position taken by the FTC signals the agency's belief that consumers should not be treated like lawyers when it comes to privacy-related disclosures. The FTC also appeared to be concerned about the fact that the disclosure was buried in a lengthy privacy statement, which was displayed to the consumer rather late in the consent-collecting process.
This is a good thing. Customers shouldn't need to be lawyers to understand what it is they're agreeing to, and it's nice to see the FTC recognize that fact.