CEI's C:Spin - Spyware Regulation: Current Laws Can Do It Better

[David Farber <dave () farber net>]

Begin forwarded message:

From: Braden Cox <bcox () cei org>
Date: June 22, 2004 9:55:02 PM EDT
To: farber () cis upenn edu
Subject: CEI's C:Spin - Spyware Regulation: Current Laws Can Do It 
Better

CEI C:\Spin

 

This issue -  Spyware Regulation:  Current Laws Can Do It Better

 

By Braden Cox

Technology Counsel

Competitive Enterprise Institute

June 22, 2004

 

 

            Bond:  “Do you expect me to talk?”

            Goldfinger:  “No, Mr. Bond, I expect you to die!”

 

Just as Goldfinger wanted to stop Hollywood’s favorite spy, many people 
want spyware eliminated. There are a handful of bills that have been 
proposed in the House and Senate regarding the installation of computer 
software. Last week, a bill cleared a House Energy and Commerce 
subcommittee and is on its way to a full committee vote. Unfortunately, 
this bill, as amended, lacks the laser precision necessary to prohibit 
only the bad forms of spyware and will affect the installation of other 
positive software.   

 Defining “Spyware”

The devil is in the definition. The fear of having any spyware 
legislation is that it will be overbroad in its attempt to define 
“spyware.” Congress may very well succeed in mandating notice and 
consent, but in doing so it will burden many other forms of software 
installations while adding nothing new to the legal options that 
already exist to detect and curb fraudulent and deceptive behavior.

 HR 2929 - now named with the catchier title “Securely Protect Yourself 
Against Cyber Trespass Act” or the “SPY ACT” – is an example of such 
over inclusive legislation. Introduced by Rep. Mary Bono (R-CA) and 
Rep. Edolphus Towns (D-NY), it prohibits the distribution of certain 
software programs over the internet without notice and consent. The 
bill creates an expansive category of what is a “spyware program” and 
directs the Federal Trade Commission (FTC) to create rules to implement 
the legislation.

Rules that the FTC does not need create by its own admission. The FTC 
is already on record that spyware legislation is unnecessary. A FTC 
hearing in April, a computer crimes expert at the Department of Justice 
stated that no new laws are needed to prosecute spyware crimes.   

 Focus on Conduct, not Technology

Innovation in the ever-evolving world of Internet commerce is stifled 
as software makers forgo tinkering with the online user experience for 
fear of regulatory persecution. The same underlying technology that can 
enable spyware also may power beneficial applications. There is a 
difference that legitimately tracks user activity like some online web 
sites and spyware that tracks activity for purposes of stealing private 
information. The spyware problem derives comes from bad people, not bad 
technology.

 Legislation is premature; instead, industry still needs time to 
respond to the challenges of electronic commerce. And it appears that 
we don’t have to wait much longer, as a Microsoft representative 
testified at the FTC workshop that its upcoming service release to 
Windows XP will include popup and ActiveX blocking, improved install 
prompts, and a new software add-on manager. This testimony as well as 
other developments demonstrates that the consumer demand for spyware 
protections will be met by industry initiative.

 Enforce Existing Law

 

Curbing spyware does not require special legislation as existing laws 
adequately address any misuse of software resulting in fraud or other 
deceptive acts. Title 5 of the Federal Trade Commission Act applies to 
unfair and deceptive trade practices. Provisions of the Computer Fraud 
and Abuse Act which make it illegal to intercept a communication 
without a court order could apply to some uses of spyware that co-opt 
control of computers or exploit Internet connections. This body of 
existing law adequately addresses misapplication of software, including 
spyware.

  

There is no doubt that some forms of spyware pose risks to consumers. 
But legislation that eliminates both good and bad characters in a class 
of software by direct prohibitions or burdensome regulatory 
requirements is not the answer. Just like Bond, consumers need a 
“license to kill” bad software, but at this point Congress should just 
“live and let die” and allow the combination of industry 
self-regulation, consumer education and the enforcement of existing 
laws to progress.

 

C:\SPIN is produced by the Competitive Enterprise Institute

 

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