Anti-spyware bill ruffles feathers


A piece of anti-spyware legislation being considered in the House has gained direct marketers' seal of approval.

That is not to say that they like the bill. On the contrary, the Direct Marketing Association complained in a letter to House Speaker Nancy Pelosi (D-Calif.) and House Minority Leader John Boehner (R-Ohio) that H.R. 964, the Securely Protect Yourself Against Cyber Trespass Act, 'goes far beyond regulating spyware and cuts to the heart of the information economy.' But any legislation that upsets direct marketers must have something going for it. Let's see what it says.

Basically, the bill would prohibit 'unfair and deceptive acts or practices relating to spyware.' It goes on to enumerate and define these acts, prohibiting things such as hijacking computers or their Internet connections, running botnets to distribute spam, secretly loading adware on computers, keystroke logging, phishing, pharming and generally using lies and dishonesty to park unwanted software on a computer. It would require honest notices with an opt-in before installing or running information gathering software and the user must be able to remove or disable the software without too much trouble.

This would be enforced by the FTC under the Federal Trade Commission Act and would carry some stiff civil penalties of up to $3 million for each violation. The FTC would be required to study how to deal with cookies and with software already installed on computers.

None of this sounds too burdensome to an honest advertiser. Admittedly, the Direct Marketing Association's objections are pretty limited. 'The primary concern about this bill is that the definitions of 'computer software' and 'information gathering program' would extend far beyond unwanted downloaded software and cover the entire Internet and all Web pages,' the association wrote to the two representatives. The advertisers would like to see the bill amended to exclude this interpretation.

I do not share this concern. The bill rightly focuses on the function of the proscribed software rather than its source or where it is running. It is behavior that counts, and whether the software has been surreptitiously installed on my hard drive or is running on a Web site, it would be prohibited from improperly gathering and using personal information. The bill is specifically aimed at unfair practices and targets deceptive and otherwise dishonest behavior. It does not prohibit data collection that is fair and aboveboard and the bill contains plenty of exceptions for data being gathered for use within a single Web site, for security monitoring, for valid relationship tracking and other purposes. It leaves the door open for other exceptions as the FTC sees fit.

The association complains that notification requirements for information gathering would kick in 'when a consumer goes to a Web site and voluntarily inputs/provides information to order a product or service or requests information.' That seems pretty far-fetched, as long as the form contains no tricks or deceptions and the information is only being used for the purpose the customer intended.

Is H.R. 964 the best of all possible anti-spyware bills? Probably not. Is this the best spyware bill to be introduced so far in this Congress? I don't honestly know, without sitting down to do a line-by-line comparison of all of them. Is it a bad bill? It doesn't look like it. Certainly it does not strike at 'the heart of the information economy and the unprecedented growth of the Internet.'

The bill would impose some burdens on marketers and others who gather information and deliver advertisements online, and that is where the burden belongs rather than on computer users. Direct marketing consists primarily of unsolicited advertisements, be they junk mail, spam or telemarketing calls. The Direct Marketing Association would have us believe that interfering with this process would threaten the national economy, throw masses of employees out of work and imperil the American way of life. But I do not believe that following the rules proposed in this bill is an unfair price to pay for someone who wants access to my eyes, my attention and my billfold.

About the Author

William Jackson is a Maryland-based freelance writer.


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