spyware-fyi

[David Farber <dave () farber net>]

Get ready for 'Son of Can-Spam'


By Declan McCullagh
http://news.com.com/Get+ready+for+Son+of+Can-Spam/ 
2010-1071_3-5892166.html

Story last modified Mon Oct 10 04:00:00 PDT 2005



Nearly two years ago, the U.S. Congress approved the first federal law
regulating unsolicited junk e-mail, marking a historic date that finally
freed our in-boxes from the scourge of a punishing flow of spam.


Not quite. In reality, the poorly named Can-Spam law probably  
increased the
volume of spam clogging our e-mail clients by zapping state laws such as
one in California that had mandated a stricter "opt-in" standard for
unsolicited electronic mail.


Now politicians are promising to enact new laws against spyware. It  
might
be time to start worrying again.


At a hearing last week, senators pledged prompt action. "According to a
recent survey by the National Cyber Security Alliance, 93 percent of  
people
feel that spyware is a serious problem, and 61 percent believe that
Congress should be doing more to combat this problem," said Gordon  
Smith,
an Oregon Republican. "Consumers have now downloaded free versions of  
the
two most widely used anti-spyware programs over 45 million times."


Some background: Five spyware-related bills exist in Congress, namely
S.1004, H.R.744, H.R.29, S.687, and S.1608.


Three of those--including Rep. Mary Bono's H.R.29, already approved  
by the
House of Representatives--would explicitly override state laws, even  
if the
state laws are more consumer-friendly than the federal law.


Many are. Last year, Utah enacted an anti-spyware law that was so strict
that WhenU sued to block it even before the measure took effect.  
WhenU is
one of those companies that treads the line between adware and  
spyware--its
software is surreptitiously installed when unsuspecting Windows users
download file-sharing programs like BearShare. Some 87 percent of WhenU
"customers" are unaware of where that constant stream of pop-up ads  
comes
from from.


No wonder WhenU CEO Avi Naider says that his company "supports anti- 
spyware
legislation at the federal level." It would eliminate the possibility of
state legislators taking a harder line.


Federalism on the Internet
It's true that many legitimate businesses would prefer what they like to
call a "uniform federal standard" rather than a "patchwork of dozens of
state laws."


But in reality, what's likely to happen is that the state courts will
retain authority over common-law torts like invasion of privacy and
fraudulent misrepresentation. Plus we'll see five different federal  
laws,
administered by a dozen different federal agencies, each bent on  
expanding
its jurisdiction daily. That's a situation only a lawyer could love.


A better solution might sound like a radical one: for Congress to do
nothing.


The Federal Trade Commission has told politicians it already possesses
broad authority to punish any fraudulent and deceptive adware or spyware
practices with fines, as it demonstrated by suing one bottom-feeding
spyware company last week. Department of Justice prosecutors have  
said the
same thing about filing criminal charges.


Congressional forbearance would permit those federal lawsuits and state
laws to continue. More importantly, it would support the long-neglected
idea of federalism, which Justice Louis Brandeis said let states become
"laboratories of democracy." For decades, regulatory power has been
increasingly consolidated in the federal government, much to the  
dismay of
critics who have warned that state legislators might know more about  
what
their constituents need than some unelected bureaucrats in a distant
Washington. That addiction to centralized power has led to bizarre  
twists,
such as federalized speed limits and a Supreme Court that firmly  
believes
state law can never permit medical marijuana use.


George Mason University professors Bruce Kobayashi and Larry Ribstein  
have
written about how Internet federalism affects Americans' privacy rights.
They say that "federal law would perversely lock in a single regulatory
framework while Internet technology is still rapidly evolving. State  
law,
by contrast, emerges from 51 laboratories and therefore presents a more
decentralized model that fits the evolving nature of the Internet.
Moreover, competition among state laws can mute the inefficient  
tendencies
of (special interest group) legislation."


That same argument holds true for spyware regulations. And we've seen  
how
well the Can-Spam law has worked. This time, let's hope that Congress is
listening.


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