The horrendous contract language in the Microsoft Passport Web Site Terms of Use and Notices before April 1, 2001, might pose special problems for businesses legally compelled to protect the confidentiality of information. Please read these exerps from the Terms of Use and Notices before continuing.

If I were required to maintain confidentiality, I would be afraid, very afraid.

It's true that under intense public pressure, including Troubleshooters.Com and many other organizations writing anti-Passport copyright and license language, and blocking email coming through Microsoft controlled services, Microsoft backed down and changed the language. But they reserve the right to change it in the future. So unless you read the license before every email you send, you're in danger of accepting any new license language simply by using the service after such a change.

Visualize this. You're a law firm, and you email your client information on strategy. Your client uses hotmail, which to my understanding uses Passport for authentication and to my understanding is an implied consent to the Passport license. Let's say that after the smoke cleared, Microsoft would change the terms of use back to the pre-4/4/2001 language -- a right Microsoft claims as its own.

In such a case, the Passport terms of use and notices claim the right for microsoft to use that strategy. If your case were against one of Microsoft's competitors, or a small company Microsoft wants to acquire but hasn't been able to yet, might they publish that information? If your client's case was against Microsoft, do you think their legal team might be given the information? Would you want to find out?

You're a medical clinic and transmit information on the health of a patient. Might Microsoft have some "partners" who are a medical records database used by insurance companies to screen out the "unhealthy"? Would you want to find out?

There's danger even without the legal compulsion for secrecy. Let's say you're a book publisher. Book publishers today accept chapters and manuscripts via email. They send author reviews through email. If an author used a Hotmail address, might the material end up in a Microsoft Press book before your book even hits the shelves? Would you want to find out?

There are many, many email services that don't use Passport. It's easy and reasonable to insist that your employees and business partners use non-Passport-connected services for email. It's easy and reasonable to place a clause in your copyright or license prohibiting viewing the materials through Passport.

Is your information in danger, and is it worth protecting? Will Microsoft keep its reasonable language, or will they revert to the "all data passing through can be used by us" language? How much of your business do you want to bet on Microsoft?
 

Email Steve Litt (but not from hotmail)