Confiabilidad

1. Pro-CD, Inc. v. Zeidenberg, 86 F.3d 1447 (7^th Cir. 1996) Upheld validity of terms made known to licensee only when licensee opened the manual and when he started up the software and and encountered a Asplash screen.@ Licensee had the option of rejecting these terms, and of obtaining a refund, by returning the materials.

2. Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7^th Cir. 1997) Upheld validity of terms made known to buyer of computer only when buyer opened box in which the computer was delivered.

B. Definitions of AClick-wrap@ and ABrowse-wrap@

C. Statutory Mechanisms for Acceptance of Terms

1. ARecord@-- Ainformation that is inscribed on a tangible medium, or that is stored in an electronic or other medium and is retrievable in perceivable form.@ UCC ' 1-201(a)(31), UCITA

' 102(a)(55)

2. AAuthenticate@-- A(A) to sign; or (B) with the intent to sign a record, otherwise to execute or adopt an electronic symbol, sound, message, or process referring to, attached to, included in, or

logically associated or linked with, that record.@ UCITA ' 102(a)(6);

Cf. UCC ' 2-103(p)

3. AA record or signature may not be denied legal effect or

enforceability solely because it is in electronic form.@ UCC ' 2-211(1);

UCITA ' 107(a) (substituting Aauthentication@ for Asignature@) See also Uniform Electronic Transactions Act (UETA)

' 7(a); Electronic Signatures in Global and National Commerce Act (E-SIGN), 15 U.S.C. '7001, 7001

4. Statute Sections Enabling Click-Wrap:

a. UCITA

information or access that could have been available only if it engaged in conduct or operations that authenticated the record or term.@

ii. '112(a)(2)B AA person manifests assent to a record or term if the party, acting with knowledge of, or after having an opportunity to review the record or term or a copy of it. . .

intentionally engages in conduct or makes statements with reason to know that the other party . . . may infer from the conduct or statement that the person assents to the record or term.@

b. UCC ' 2-204(1)B AA contract for sale of goods may be made in any manner sufficient to show agreement, including. . . . conduct by both parties which recognizes the existence of a contract. . . .@

D. Law Firm Clickwrap Provisions

[On a number of law firm Web sites, these warnings appear in a pop-up box after a visitor has clicked on the e-mail link on the Web page of an individual attorney.

However, if that page displays the attorney’s e-mail address (“[email protected]”) in full, or if that address is visible in the lower left-hand corner of the browser window when the cursor is moved over the link, the visitor might just insert the address into her own e-mail program, without clicking on the link and thus without triggering (and being confronted with) the disclaimer.

[Some firms adopt the more cautious posture of enabling visitors to attorney pages to send e-mail only by typing their message into the windows of special forms that appear, without indicating the specific e-mail address of the recipient, after visitors have seen and agreed to the disclaimers concerning e-mail.]

1. Warning Not to Submit Confidential Information “Cold”

● “Please do not transmit any confidential information in this e-mail unless and until an attorney-client relationship has been formed and an engagement letter has been signed. We will not treat information contained in unsolicited e-mail messages as confidential.”

● “While we are happy to have you contact us by telephone, surface mail, electronic mail or facsimile transmission, merely contacting [the Firm] or any [Firm] attorney does not create an attorney-client relationship until an agreement has been reached between you and the firm to handle a particular matter. The

arrangement and mutual agreement on the terms of the engagement. Please do not convey to us any information you regard as confidential until a formal attorney-client relationship has been established. Any information you convey to [the Firm]

via the Internet may not be secure, and information conveyed prior to establishing an attorney-client relationship may not be privileged or confidential.”

● “Please Read Before Sending E-Mail - Communication by you through this Web site does not establish an attorney-client relationship with [the Firm]

Therefore, we cannot agree to maintain the confidentiality of communications sent through this Web site. Please do not send us any information about your legal problem. Our professional obligations require that before accepting any new client or new matter, we must determine whether there are any actual or potential

conflicts with any of our existing or former clients. If you wish to inquire into becoming a client of the firm, please request a personal interview. We will not consider any e-mail regarding new client representation other than a request for a personal interview. This e-mail is not confidential and is not protected by the attorney-client relationship. No attorney-client relationship is created by sending this e-mail. You do not become the client of [the Firm] by sending this e-mail.

To contact this lawyer, please use this link.”

2. Plus Warning of Potential Breaches of Confidentiality on the Internet

● “E-mail messages sent via the Internet are not necessarily secure. Please do not transmit any information that you wish to confidential. In addition, you have not yet hired an attorney. In order to preserve and safeguard the relationship with our current clients, [the Firm] must go through certain formalities before agreeing to represent anyone on a particular matter. Until these formalities are complete, none of our communications sent using e-mail are privileged or confidential. Do not use the supplied e-mail interface to send any confidential information. Such

information may be communicated at a later time after an attorney-client relationship has been established.”

3. Plus Offer of Encrypted Communication

● “Attorney-Client Relation. Use of the [Firm’s] website or e-mail does not create an attorney-client relationship between you and [the Firm]. If you send us an e-mail and we do not already represent you, your e-mail will not create an

attorney-client relationship and will not necessarily be treated as privileged or confidential. Prior to sending us any confidential or sensitive information via e-mail, you should contact a [Firm] attorney by telephone to ensure that we would not have

“E-Mail. E-mail via the Internet is generally not a secure form of

communication, and the contents of your e-mail to us may be intercepted and read by third parties. Thus, you should not send us sensitive or confidential information via an e-mail message, unless it is adequately encrypted. Contact [Firm staff

member] if you wish to arrange for secure transmission of e-mail over the Internet.”

4. Furnishing a Telephone Number for Potential Clients to Call

● “While we would like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Accordingly, please do not send us any information about any matter that may involve you until you receive a written statement from us that we represent you (an engagement letter).

“If you wish to initiate a possible representation, the best way is to call [attorney name] at [phone number].

“After you contact us, we will take you through our conflict-of-interest procedure and see that you are put in touch with the lawyer best suited to handle your matter. When you receive an engagement letter from that lawyer, you will be our client, and we may then exchange information freely.

“Clicking on the "Yes" button acknowledges that you understand and agree with this notice.”

● “Please read the following notice before sending an email to our firm:

Sending us an email will not make you a client of our firm. Until we have agreed to represent you, anything you send us will not be confidential or privileged. The best way for you to inquire about a possible representation is to call a [Firm]attorney at one of the telephone numbers listed on our Contact Information page. An attorney will first take you through our conflict of interest procedure and see that you are put in touch with the lawyer best suited to handle your matter.

“If you proceed with an email, you confirm that you have read and understand this notice.”

● “Sending an e-mail will not establish an attorney-client relationship. As a result, you should not send us any information that you would want treated

confidentially. Contact [individual] at [phone number] and she will refer you to a lawyer who can discuss your situation and confirm that we would be able to represent you.”

● “While we would like to hear from you, we cannot represent you until we know that doing so will not create a conflict-of-interest. Please do not send us any information about any matter that may involve you until you receive a written statement from us that we represent you (an engagement letter).

“If you wish to initiate a possible representation, the best way is to call [individual] at [phone number]. After you contact us, we will take you through our conflict-of-interest procedure and see that you are put in touch with the lawyer best suited to handle your matter. When you receive an engagement letter from that lawyer, you will be our client, and we may then exchange information freely.

Clicking on the "Yes" button acknowledges that you understand and agree with this

5. (Questionable) Distinction for Current Clients

[It might be preferable to indicate that even current clients of the firm should not assume that the firm can represent them on a new matter, and that they should exercise similar care in revealing details of this new matter to the firm to enable conflict-checking.]

● “Before proceeding, please note: If you are not a current client of [the firm], please do not include any information in this email that you or someone else considers to be confidential or secret in nature. Prior to the establishment of an attorney-client relationship, unsolicited emails from non-clients containing confidential or secret information cannot be protected from disclosure.@

● “NOTICE: Unless you are an existing client, before communicating with [the Firm] by e-mail (or otherwise), please read the Disclaimer referenced by this link. (The Disclaimer is also accessible from the opening page of this Website). As noted therein, until you have received from us a written statement that we represent you in a particular matter (an "engagement letter") you should not send to us any confidential information about any such matter. After we have undertaken

representation of you concerning a matter, you will be our client, and we may thereafter exchange confidential information freely.”

● “If you are not a current firm client, please do not include anything confidential or secret in this e-mail. In order to protect past, present or potential clients, we cannot treat unsolicited e-mails as confidences or secrets. . . .”

● “We welcome your comments and inquiries. If you are not a current client, please do not send us any information about legal matters in which you may be involved until you have made direct contact with one of our attorneys. Please note that email is not a secured form of communication.

6. Reserving the Discretion to Decline Representation

● “You must read this notice before sending an e-mail message to [the Firm].

“Any information that you send us in an e-mail message should not be confidential or otherwise privileged information. Sending us an e-mail message will not make you a client of [the Firm]. We do not accept representation until we have had an opportunity to evaluate your matter, including but not limited to an ethical evaluation of whether we are in a conflict position to represent you. Accordingly, the information you provide to us in an e-mail should not be information for which you would have an expectation of confidentiality.

“If you are interested in having us represent you, you should call us so we

professional responsibility. We will not make this determination by e-mail

communication. The telephone numbers and addresses for our offices are listed on this page. We reserve the right to decline any representation. We may be required to decline representation if it would create a conflict of interest with our other clients.

By continuing to the next step, you are confirming that you have read and understood this important notice.”

7. Warning About E-Mailing Time-Sensitive Information to the Firm

● “The information on this web site is presented as a service for our clients and internet users and is not intended to be legal advice, nor should you consider it as such. Although we welcome your inquiries, please keep in mind that merely contacting us will not establish an attorney-client relationship between us.

Consequently, you should not convey any confidential information to us until a formal attorney-client relationship has been established. Please remember that electronic mail on the internet is not secure and that you should not include sensitive or confidential information in messages. With that in mind, we look forward to hearing from you.”

8. Enunciating Policy for Return E-Mail Policy to Non-Clients;

Requiring Potential Clients to Contact Firm in Writing

● “Using E-mail does not guarantee confidentiality. Therefore, when you use it, do so wiely and with care, particularly when transmitting confidential

proprietary and/or sensitive information. General inquiries and request for information or recommended web sites are welcome. If you desire to e-mail [the Firm] or any of its attorneys regarding a particular or specific legal matter, then you must first engage the firm in writing regarding the legal matter. Our policy is not to return e-mail regarding a specific legal matter from anyone who has not already engaged the firm.”

IV. Visitor Privacy Policies

A. Identification of Information Collected from Visitors

1. Information Knowingly Submitted

● “[The Firm’s] website collects personally identifiable information such as names and addresses only from visitors who voluntarily input such information in response to prompts we have placed at various points on our website. [The Firm] will also collect e-mail addresses from the e-mails you send us.”

2. Information Automatically Collected a. “Cookies”

[See www.allaboutcookies.org]

[Some Web sites post “Cookie Policies”- see, e.g.,

www.orrick.com/Pages/Cookie-Policy.aspx]

● “’Cookies’ are an industry standard practice of placing a file or identifying ‘marker’ on a user’s computer for identification and personalization purposes. Our website may use cookies. . . .”

● “Certain technical information, such as your IP address, page views, operating system, Web browser software, and referring and destination Web site is automatically collected from your computer.

Cookies allow us to statistically monitor how many people are using our site, how often someone visits our site and the length of the stay.”

B. Identification of Use of Information Collected

● “We use the information gathered from cookies and log files solely to generate broad demographic and user statistics to improve the content of our Web site. We do not link any information obtained from cookies or log files to personal information.”

1. Sharing With Third Parties—Under What Circumstances?

● “We may share your personal information with third parties that perform data services (e.g., maintenance, backup, analysis, etc.) on our behalf. Any such third parties will be under an obligation to us to

maintain the confidentiality of your personal information. We may also

● “We will not share your Personal Information (including e-mail address) with any third party except (1) with your consent, (2) when we believe in good faith disclosure is required by law, or (3) to third parties who are providing services to [the Firm] as needed to provide such services and subject to appropriate confidentiality obligations. We reserve the right to disclose information about you, including data on which pages you have visited, to third parties if we feel it is necessary to protect the security of our systems, Site, business, users, or others.”

● “. . . [the Firm] cannot fully ensure that Your Personally Identifiable Information will not be disclosed to third parties. For example, [the Firm] may be legally obligated to disclose information to the government or third parties under certain circumstances, third parties may circumvent [the Firm’s] security measures to unlawfully intercept or access transmissions or private communications, or an error may occur in the administration of the Blog.”

C. Identification of Right (If Any) of Visitors to Opt Out of Data Collection

D. Identification of Visitor’s Right (If Any) to Access and Correct Data

E. Special Concerns With Regard to Collection of Children’s Data [See -Children’s Online Privacy Protection Act (COPPA),

15 U.S.C. §§ 6501-6506

-business.ftc.gov/documents/

Complying-with-COPPA-Frequently-Asked-Questions [revised July 2013]

and

business.ftc.gov/documents/bus84-childrens-online-privacy-protection- rule-six-step-compliance-plan-your-business

● “[The Firm] and its Web sites are not targeted to children under the age of 13, and [the Firm] does not knowingly collect personally identifiable information from any child under the age of 13 without parental consent. If we become aware that such data has been collected, we will delete it.”

F. Discussion of Security Practices of Firm

● “In order to guard your nonpublic personal information, we maintain physical, electronic, and procedural safeguards that comply with our professional standards.”

● “In order to protect your non-public personal information, we maintain physical, electronic, and procedural safeguards that comply with the highest professional standards.”

● “We take the security of your data seriously. Therefore, once we receive your transmission, we make our best efforts to ensure its security on our systems.”

G. Special Concerns With Regard to “Phishing” (Identity Theft)

[To prevent “social engineering” by individuals misrepresenting themselves as agents of a law firm, the firm might wish to include conspicuous notices, even in its (hard copy or digital) retention agreements, that no agent of the firm will ever contact a current or prospective client by e-mail to ask for certain sensitive

information (such as e-mail passwords or bank account numbers); or to specify the security procedures (for instance, involving passwords) by which an actual agent of the firm might establish the legitimacy of such a request.]

H. Notice of Right to Change (and Notice of Changed) Privacy Policy

● “[The Firm] reserves the right to change this privacy policy if the law or circumstances warrant such change.”

● “We may modify, alter, or update this Privacy Policy at any time, so we encourage you to review this policy frequently. We will not provide individual notice to you of changes to this Privacy Policy, but when we make updates to the policy we will update the date in this section.”

[The firm might consider indicating that no changes to the privacy policy would protect information less than the previous policy had. If this is not to be the case, the firm might indicate whether, if the privacy policy is in fact relaxed at some point, information collected under the previous policy would be subject to the new (looser) standards, or whether it would remain subject to the standards of the privacy policy in force when it was collected.]

[Perhaps conspicuous notice of specific changes to the policy, and the date of those changes, could be provided at the top of the policy page: for instance, the words, “Last Modified on [date]” could operate as a link to a page detailing the changes.]

I. Effect of Changed Privacy Policy

● “We reserve the right to change our Privacy Statement at any time without advance notice. New and/or amendments to the policy [sic] will be posted on our website and the revised policy will apply only to subsequently collected

information.”

J. Concerns Regarding Potential Merger or Acquisition of the Firm

● “In the event that all or part of our assets are sold or acquired by another party, or in the event of a merger, you grant [the Firm] the right to assign the

● “In the event that all or part of our assets are sold or acquired by another party, or in the event of a merger, you grant [the Firm] the right to assign the

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