The law does not provide the consumers with measures to enforcing the online contracts because the argument is that, it is impossible to tell the intention and the consent of the consumer when they signed the contract. In most instances, it is easy for the consumer to identify these malicious programs such as viruses or Trojan horses. On the other extreme end, the computer fraud might be easy to detect if one is able to identify the good software especially among the popular freeware applications available from the net.
The issue may be due to lack of transparency and uncertainty about what the end-user thinks when engaging with such programs. The personal judgement and consent of the user is what determines whether they agree to contract a program especially when the label shows or indicates in an otherwise pernicious manner such as a “spyware.” Some consumers may perceive software labelled “WeatherBug” as a legitimate program while other would take it as destructive software. (PC Hell, 2005)
The scope of online fraud can be clear through definition of the term “Spyware”. As applied in a wide range of computer applications especially software development, the authoritative definition of the term may be difficult.
According to a notice by ABA concerning the Federal of Trade Commission in 2004, (2006)“Spyware is software that aids in gathering information about a person or organization without their knowledge and that may send such information to another entity without the consumer’s consent, or that asserts control over a computer without the consumer’s knowledge.”
Evidence indicates accurate differences between the merchant and the consumer with regard to online contracts. In most cases, the malicious software programmers have little or no intention over the program broadcast as the consumers may point out after the destruction has occurred.
Most consumers would claim that the software was maliciously loaded on their systems without their authorization while considering the intention of the interface designer may as genuine due to various clicks from beginning to end on the contract interfaces may also apply.
Not all malicious software designers and distributors use these contracting interfaces. As much as such contracting interfaces help to manage the relationship between contractors and consumers, wicked programmers will use programs with interfaces, which do not require user identity to install. Such software developers do this intentionally because they are aware that their products contain viruses and other malicious software and in such situations, they commit “identity theft”.
If the end-user has not authority of assenting a download or upload then he/she would ascertain theft of individual’s rights. Such software is rare and this reason, this paper addresses the cases where computer fraud occurs through interactive contracting interfaces between the consumer and programmer or the distributor involved in the system.
The contract law can provide meaningful constraints over computer fraud such as software distribution if a mechanism was invented requiring explicit approval and hence notice by the consumer before ordering or agreeing with the loading mechanism. Such a mechanism would actually have an impact over the distribution volumes. According to DeVries, (2003) such a sensible strategy would probably work well in curbing online crime but it would also have a big impact over the distribution of software.
Probably such measures would have disastrous outcomes especially on the information privacy law but this may call for consideration of other measures for instance, the contract terms instructions where experts formulate means of blocking the use of misleading interfaces. This would probably enhance legitimacy of software distribution by providing significant scrutiny over mechanizations of destructive software.
Arguably, promotion of computer fraud occurs through existence of unambiguous software termed as “freeware” or “shareware”. They provide benefits to the end users and in most cases; they have to assent to the agreement by appending a check on the user interface form. In such situations, the user has consent over functionality of the program. Although uncertain, their level of interest determines if they would grant program access in their system.
The freeware may be termed as software whose distribution occurs at zero cost and mainly involves the small downloadable applications compatible with majority of the operating systems. On the other hand, the transfer of shareware from one workstation to another as free trial occurs with the aim that the user might purchase the full version later after testing.
Many end-users will comfortably welcome free information or software from the web for instance information concerning products that they intend to buy. They would hate the popular pot-up dialog boxes but will not be in a position to determine the intentions of a particular marketing company. Some advertisements would solicit the user to access free information but in return, they expose their information for possible attacks or future pop-up advertisements and worse still loading of destructive applications at the end-user system.
Today the basis of the problem can only centre on situations where the software merchant has plausible claim over consumer consent over submission of personal information in exchange of free products or services. Infringement of an existing and protective law occurs because these claims can occur from either side.
The consumer can also have a plausible claim that fraud occurred without the personal consent. Contract and application law is therefore ambiguous because of the uncertain outcomes. Liberalization of the contracts diminishes the chances for formulation of contract law because the law ought to provide a framework that provides chances for more and better explicit consent formation before collection of personal information occurs.
Today there is no basis to anticipate that judicial reverence over online fraud will extend to legitimacy of distribution of clearly malice programs.
From the consumer point of view, it might be very hard for them to pick out the malicious persons targeting marketing companies whose aim is to collect personal information from the genuine online merchants. People ought to understand that by agreeing to contracting processes through the online interfaces where one only need to click means licensing various application programs.
The process of downloading an application may involve several other applications without the consumer consent. Spyware programs appends onto genuine programs. It is often to find extra-unwanted programs attached to the main program and the process of download of the required one cannot occur without the full download.
Combination of different programs may also occur in which case people exacerbate the issues of inadvertent or eligible assent because of the fact that the extra programs are difficult to locate and eliminate them or it is inevitable to download them. (Serafin, Manners and Forbes. 2004)
Application of some principles as a guidance though the contract development and signing may be used. Using some standards requires proper analysis but it presents troubling and unsolvable issues regarding assent. Some of these principals include having a written or spoken manifestation of assent before signing of an online contract.
The contract must be intentional or reasonable such that any other parties can treat it as assent. If such manifestation of assent is not involved one should treat the contract as void or a fraud. Manifestation of mutual understanding takes the form of a proposal or an offer, which is acceptable or rejected, by the other involved party. The disadvantage in this case is that neither the offer nor the acceptance is identifiable. The moment of the formation is also not determinable.
Today the “browser wrap” terms that are usually behind the marked hyperlinks provides the terms and conditions for an agreement. The user clicks the option of either accepting of declining with the terms. There are however considerable disagreements regarding the interfaces with the query of whether they can be able to support contracts without prior determination of assent. An important development ought to support apparent manifestation beside the online validation through an interface.
Today, the causes of skipped supervisory re-evaluations by personnel managers are the huge workloads caused by accumulation of information and data or collusion during entry into the databases. The supervisory data reviews may utilize the special codes to hinder computer edits. Bypassing of many important procedural instances is the main aspect that facilitates fraud intentionally or unintentionally.
Research by Miller, (2008) has established that today’s web crime statistics are difficult to obtain because of the various methods, periods and sources that are in use to determine them. Various Internet Fraud Complain Centres such as The “Internet Complaint Centre (IC3)” established in 2000 or the “National White Collar Crime Centre (NW3C),” are addressing the rapidly spreading arena of cyber fraud/crime. They receive, build up a case and then refer it to the “Federal Bureau of Investigation (FBI)” as a criminal complaint.
The issue of cyber crime/fraud and contracting issues are however taking a slow pace to deal with because they belong to various categories. The consumer can present a crime in an alarming manner while it is a minor problem thus misleading the investigation teams. The issue of unsolicited junk mails and “spoofed” websites that imitate the legitimate ones is the root cause of the complexity involving the fraud cases.
Computer fraud cases involve the “auction fraud, non-delivery fraud, credit or debit cards fraud, non fraudulent complaints such as child pornography or spam/Junk mails.” These are all situations that are accessible through federal laws meant to support the dynamic investigations, developmental analysis and aims to reach out for the public awareness efforts.
From the business experts’ point of view, computer fraud and contracting is a crisis they people have to deal with because electronic commerce is has just begun. People are coming to terms with the online procurement process and this unlocks more chances for fraudsters. Fraud and contracting is a bigger problem than what most people would anticipate.
As technology advance, it forces the fraudsters to acquire better skills and thus today’s fraud involves experts rather than the imagined idlers. They have mechanisms of manipulating computers to access the intended information. The best mechanism of protecting oneself against fraudsters is by learning more about fraud and advancing technologically.
Most fraudsters will use spyware to find personal information. Some of this software is able to collect information without the consent of the owner. One basic way of avoiding the transfer of personal information to fraudsters is to get rid of temporally internet files and browser history. Users ought to avoid visiting of suspicious websites. (Wells, 2008)
The issue of identity theft is common today with many victims having to spend huge amounts to clear damaged identities. It is wise to spend on solid protection against fraud other than spend on clearing the mess.
Technology equips the users with software capable of utilizing multiple options of defence against information theft, attenuation, swindles, and other variety of frauds. Good antifraud software should provide advice against dangerous Web sites, rate safety probability, provide automatic safety tune-up, shield browsers and block malicious programs or pop-ups.
The consumer should be a few clicks away from security zone so that they can access them any time they need protection or privileges. By installing updated Virus scanning software, one is able to stay ahead of the hackers or fraudsters.
ABA.2006. 2004 “Annual Review of Antitrust Law Developments: Annual Review Of Antitrust Law Developments”. New York NY. American Bar Association, 2006
DeVries W.T, 2003. Protecting Privacy in the Digital Age, 18 Berkeley Tech. L.J.
Miller, R. L, Gaines, L.K. 2008. Criminal Justice in Action Cengage Learning,
PC Hell. 2005. WeatherBug Removal Instructions and Help. Accessed November 17, 2009 from http://www.pchell.com/support/weatherbug.shtml
Serafin T, Manners and Forbes. 2004. “The Federal Trade Commission held Workshops on spyware” Accessed November 17, 2009 from http://www.whenu.com/support.html
Wells, J.T. 2008. Computer Fraud Casebook: The Bytes that Bite. New York NY. John Wiley and Sons
Winn J.K. 2005. Law, Commerce and Technology. University of Washington
School of Law. Accessed November 17, 2009 from http://www.law.washington.edu/-Faculty/Winn