Archived from groups: misc.consumers,alt.sys.pc-clone.dell (More info?)
Comments from Ed Foster's Gripe Line Weblog at InfoWorld -
In case you haven't noticed, there's a very familiar pattern to
current legislative activity regarding anti-spyware laws. It's very
reminiscent of where Congress was last year at this time on anti-spam
legislation, and that ultimately led to the disastrous Can Spam Act.
Are we soon to see the enactment of the "Yes, You Can Spy Act" as
well?
The parallels with the situation that created the Can Spam Act are
downright scary. Just as there was an all too justifiable hue-and-cry
last year about spam, the politicians are now keenly feeling the need
to do something about the spyware plague. The states are passing
strong laws that might actually be effective, a trend that marketing
and technology lobbyists are telling Congress is a bad, bad thing that
requires pre-emption by federal law.
And while everyone agrees that the things the worst offenders are
doing are already highly illegal, for some reason our national
lawmakers think the answer is to concentrate enforcement powers in an
already overwhelmed Federal Trade Commission.
New spyware laws aren't needed for the homepage hijackers, keystroke
loggers, etc. that already clearly constitute violations of the
Computer Fraud and Abuse Act and many others laws. The one category of
offenders that legislators could address is the
We're-Adware-Not-Spyware vendors like Gator (now calling itself
Claria) and WhenU.
As we know, these companies hide the true nature of their software
deep in their sneakwrap licenses, allowing them to claim they have
"consent" from users who, of course, have no idea they are "agreeing"
to have a torrent of pop-up ads take over their computer. This
supposed consent makes it hard for the many victims who try to sue
them, not to mention law enforcement agencies, to hold these companies
responsible for the very considerable damage they are doing to the
Internet.
Unquestionably, devising a fair law that can fight
sneakwrap-sanctioned spyware is no easy task, but what appears at the
very least to be a valiant attempt is the recently-enacted Utah
spyware law. The best proof of that is WhenU's lawsuit seeking to
overturn the law because it would keep them from doing business in the
state. And, just as California's tough anti-spam law suddenly put Can
Spam on a fast track to enactment last year, Utah's anti-spyware seems
to have galvanized Congress into action.
H.R. 2929, currently called the Spy Act, is moving through the House
so fast it's hard to keep track of what it says. The version now
headed to the House floor (after being approved by the same House
committee that approved what became Can Spam) does at least have a
requirement that the user be notified in plain English what the
spyware/adware does.
Unfortunately, it also very pointedly pre-empts the much stronger Utah
law. Even worse is the fact that it leaves enforcement solely to the
FTC, even though FTC officials have made it clear they have neither
the will nor the means to go after any but the most criminal
offenders.
It's a good bet that, once the lobbyists are finished with it, the Spy
Act will read more like the Sneakwrap-Sanctioned Spyware Protection
Act. Software industry lobbyists are already attacking the law's
rather mild notice-and-consent requirement as being too burdensome.
In fact, organizations that have long championed the sneakwrap
licensing approach now claim they are trying to save users from having
to read too many notices. For example, the Business Software Alliance
issued a statement saying the notices the bill mandates won't allow
consumers to distinguish between legitimate vendors and the bad
actors. "We are concerned that the 'one size fits all' notices
approach will not help to inform consumers about how their personal
information is being used, and will become just another screen to
click I Agree," BSA CEO Robert Holleyman said in the statement.
I can't begin to tell you how ironic it is for someone who watched
UCITA's creation to hear the BSA argue that users should not be
required to mindlessly click OK. (When you think about it, Gator and
WhenU actually represent the very epitome of the UCITA-style
transactions that BSA's lobbyists essentially authored.)
But, of course, the software industry is less concerned about spyware
here and more concerned that spyware laws not force them to clearly
disclosure their own terms and conditions. Since Congress isn't really
consulting much of anyone else, we can be pretty certain they are
going to get it wrong again.
http://weblog.infoworld.com/foster/
Comments from Ed Foster's Gripe Line Weblog at InfoWorld -
In case you haven't noticed, there's a very familiar pattern to
current legislative activity regarding anti-spyware laws. It's very
reminiscent of where Congress was last year at this time on anti-spam
legislation, and that ultimately led to the disastrous Can Spam Act.
Are we soon to see the enactment of the "Yes, You Can Spy Act" as
well?
The parallels with the situation that created the Can Spam Act are
downright scary. Just as there was an all too justifiable hue-and-cry
last year about spam, the politicians are now keenly feeling the need
to do something about the spyware plague. The states are passing
strong laws that might actually be effective, a trend that marketing
and technology lobbyists are telling Congress is a bad, bad thing that
requires pre-emption by federal law.
And while everyone agrees that the things the worst offenders are
doing are already highly illegal, for some reason our national
lawmakers think the answer is to concentrate enforcement powers in an
already overwhelmed Federal Trade Commission.
New spyware laws aren't needed for the homepage hijackers, keystroke
loggers, etc. that already clearly constitute violations of the
Computer Fraud and Abuse Act and many others laws. The one category of
offenders that legislators could address is the
We're-Adware-Not-Spyware vendors like Gator (now calling itself
Claria) and WhenU.
As we know, these companies hide the true nature of their software
deep in their sneakwrap licenses, allowing them to claim they have
"consent" from users who, of course, have no idea they are "agreeing"
to have a torrent of pop-up ads take over their computer. This
supposed consent makes it hard for the many victims who try to sue
them, not to mention law enforcement agencies, to hold these companies
responsible for the very considerable damage they are doing to the
Internet.
Unquestionably, devising a fair law that can fight
sneakwrap-sanctioned spyware is no easy task, but what appears at the
very least to be a valiant attempt is the recently-enacted Utah
spyware law. The best proof of that is WhenU's lawsuit seeking to
overturn the law because it would keep them from doing business in the
state. And, just as California's tough anti-spam law suddenly put Can
Spam on a fast track to enactment last year, Utah's anti-spyware seems
to have galvanized Congress into action.
H.R. 2929, currently called the Spy Act, is moving through the House
so fast it's hard to keep track of what it says. The version now
headed to the House floor (after being approved by the same House
committee that approved what became Can Spam) does at least have a
requirement that the user be notified in plain English what the
spyware/adware does.
Unfortunately, it also very pointedly pre-empts the much stronger Utah
law. Even worse is the fact that it leaves enforcement solely to the
FTC, even though FTC officials have made it clear they have neither
the will nor the means to go after any but the most criminal
offenders.
It's a good bet that, once the lobbyists are finished with it, the Spy
Act will read more like the Sneakwrap-Sanctioned Spyware Protection
Act. Software industry lobbyists are already attacking the law's
rather mild notice-and-consent requirement as being too burdensome.
In fact, organizations that have long championed the sneakwrap
licensing approach now claim they are trying to save users from having
to read too many notices. For example, the Business Software Alliance
issued a statement saying the notices the bill mandates won't allow
consumers to distinguish between legitimate vendors and the bad
actors. "We are concerned that the 'one size fits all' notices
approach will not help to inform consumers about how their personal
information is being used, and will become just another screen to
click I Agree," BSA CEO Robert Holleyman said in the statement.
I can't begin to tell you how ironic it is for someone who watched
UCITA's creation to hear the BSA argue that users should not be
required to mindlessly click OK. (When you think about it, Gator and
WhenU actually represent the very epitome of the UCITA-style
transactions that BSA's lobbyists essentially authored.)
But, of course, the software industry is less concerned about spyware
here and more concerned that spyware laws not force them to clearly
disclosure their own terms and conditions. Since Congress isn't really
consulting much of anyone else, we can be pretty certain they are
going to get it wrong again.
http://weblog.infoworld.com/foster/
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