Spring Break
Legislation to ban spyware won't solve real problem
By: Johnathon Smith
Issue date: 6/29/04 Section: Opinion
So what exactly is on your computer? This is a troubling question for millions of Americans whose home computers have been hijacked by viruses and spyware. To remedy part of this widespread problem, a bill endorsed by California Republican Mary Bono and New York Democrat Ed Towns that would try to ban spyware is working its way to Congress.
Even though such a bill is based on good intentions, it will take more than an act of Congress to make spyware go away. Any law that tries to relieve home users from malicious spyware companies will be ineffective, partially because the nature of spyware and partially because of the users themselves.
The first problem with any attempt to regulate spyware is the fact that programs considered as spyware are hard to define in a legal sense.
In broad terms, spyware is software that installs itself on a user's computer and gathers knowledge about the user. In legal terms, many of the actual actions carried out by spyware programs are also carried out by benevolent programs.
For example, if any spyware law was to ban the gathering of a computer users's information, Microsoft would not be able to collect information to determine if a computer required any updates. It is too difficult to write a law that attacks only spyware, so any spyware law would prevent legitimate software activity as well.
Another problem with a law against spyware is that in many ways, such a law would be redundant. Federal Trade Commissioner Mozelle Thompson recently stated in the Washington Post that, "There are some kinds of practices that we may consider unfair or deceptive that we already have existing power to pursue." If the laws on the books against consumer fraud and identity theft are not currently being implemented effectively to shut down spyware companies, another law banning the same practice will do no good.
A third problem is that as soon as the law passes, many spyware companies will choose to move overseas rather than allow themselves to be regulated by U.S. law. The global nature of the Internet, the primary means of distributing software such as spyware, is such that it is impossible for the U.S. government to regulate foreign companies that provide services to U.S. customers as long as they do not have a physical presence in our borders.
Even though such a bill is based on good intentions, it will take more than an act of Congress to make spyware go away. Any law that tries to relieve home users from malicious spyware companies will be ineffective, partially because the nature of spyware and partially because of the users themselves.
The first problem with any attempt to regulate spyware is the fact that programs considered as spyware are hard to define in a legal sense.
In broad terms, spyware is software that installs itself on a user's computer and gathers knowledge about the user. In legal terms, many of the actual actions carried out by spyware programs are also carried out by benevolent programs.
For example, if any spyware law was to ban the gathering of a computer users's information, Microsoft would not be able to collect information to determine if a computer required any updates. It is too difficult to write a law that attacks only spyware, so any spyware law would prevent legitimate software activity as well.
Another problem with a law against spyware is that in many ways, such a law would be redundant. Federal Trade Commissioner Mozelle Thompson recently stated in the Washington Post that, "There are some kinds of practices that we may consider unfair or deceptive that we already have existing power to pursue." If the laws on the books against consumer fraud and identity theft are not currently being implemented effectively to shut down spyware companies, another law banning the same practice will do no good.
A third problem is that as soon as the law passes, many spyware companies will choose to move overseas rather than allow themselves to be regulated by U.S. law. The global nature of the Internet, the primary means of distributing software such as spyware, is such that it is impossible for the U.S. government to regulate foreign companies that provide services to U.S. customers as long as they do not have a physical presence in our borders.
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