[IP] CEI's C:Spin - Spyware Regulation: Current Laws Can Do It Better
Begin forwarded message:
From: Braden Cox <bcox@xxxxxxx>
Date: June 22, 2004 9:55:02 PM EDT
To: farber@xxxxxxxxxxxxx
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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