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IEEE-USA Remains Opposed to UCITA, Despite Amendments

WASHINGTON (9 August 2002) - IEEE-USA remains opposed to the Uniform Computer Information Transaction Act (UCITA) despite amendments to the proposed model state law passed by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in Tucson, Ariz., the week of 29 July.

According to IEEE-USA President LeEarl Bryant, the amended UCITA still fails to address several fundamental IEEE-USA concerns:

• UCITA turns a sale of goods into a licensing transaction, which permits software publishers to enforce contract provisions contained in "click through" and "shrink-wrap" licenses that may not be disclosed to consumers prior to purchase. Such provisions may be burdensome or unreasonable, but place the burden on the purchaser to display that they are legally "unconscionable" or "against fundamental public policy." Failure to require a pre-transaction disclosure of terms is one of the main reasons why UCITA received a negative report by the American Bar Association's UCITA Task Force earlier this year.
  
• UCITA, as amended, now recognizes the right to reverse engineer software for purposes of interoperability, but justification for other reasonable reverse engineering practices (e.g., privacy protection, security or compliance verification, academic research or instruction, reporting or remediation of flaws, etc.) are still not explicitly protected.
  
• Although the use of "self-help" measures (i.e., a software company's ability to turn off your software remotely if it suspects a license violation) would now be restricted by amendment, software companies are still free to design "back doors" into their software for that purpose and limit company liability if those "back doors" are misused, by themselves or others. With so much critical national infrastructure (e.g., water, electricity, telecommunications, health information systems) dependent on commercial and custom software, this loophole heightens security risks and makes the nation vulnerable to potentially crippling cyber attacks.

"Electrical engineers and computer scientists rely on software to aid in the complex technical analysis and development their jobs requires," IEEE-USA's Bryant said. "UCITA could undermine these technical professionals' efforts to ensure the security of critical information systems."

Among the new amendments are provisions that would ensure that state consumer protection laws take precedence over UCITA license provisions, as well as amendments to make unenforceable license terms that seek to restrict the right to criticize information products or to reverse engineer software for purposes of product interoperability, which were championed by IEEE-USA in Virginia in 2000.

Maryland and Virginia adopted UCITA, with amendments, in 2000. "The current NCCUSL amendments are designed to more closely harmonize the model law with the versions adopted in Maryland and Virginia," said Bryant, "in hopes of breathing new life into the law, which stalled in other states during 2001-02 legislative sessions."

UCITA is designed to regulate commercial transactions involving intangible goods such as computer software, online databases and other digital information products. The law was adopted by NCCUSL in 1999 after a joint effort with the American Law Institute to expand the Uniform Commercial Code broke down.

After early efforts to help NCCUSL craft a workable law went unheeded, IEEE-USA formalized its opposition to UCITA in a February 2000 position statement ( http://www.ieeeusa.org/forum/POSITIONS/ucita.html). Widespread opposition to UCITA has continued to grow since its introduction, and now includes a majority of state Attorneys General, as well as insurance companies, library associations, consumer protection groups, the open source software community, and large industrial software consumers such as Boeing, Georgia Pacific and Phillips Petroleum.

IEEE-USA is an organizational unit of The Institute of Electrical and Electronics Engineers created in 1973 to promote the careers and public-policy interests of the more than 235,000 electrical, electronics, computer and software engineers who are U.S. members of the IEEE. The IEEE is the world's largest technical professional society. For more information, go to http://www.ieeeusa.org.

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Last Updated: 9 August 2002
Staff Contact:  Chris McManes, c.mcmanes@ieee.org