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E-Commerce News
U.S. Senate Considers Spyware Legislation
July 31, 2007
U.S. SENATE CONSIDERS SPYWARE LEGISLATIONA United States Senator from Arkansas has introduced legislation that would severely limit the use of “spyware.” Democratic Senator Mark Pryor’s bill targets tracking software that is often installed on a computer via a download from the Internet. Once installed, spyware collects information about the computer users without the user’s knowledge. Once the information is collected, that information – individually identifying information – can be sent to other interested parties, without the user’s consent or awareness.
Simply put, Pryor's proposed bill prohibits the installation of spyware absent notice to and consent from the authorized computer user.
Section 4 of the bill makes it unlawful for anyone other than the authorized user of a protected computer to "cause the installation on that computer of software that collects sensitive personal information from an authorized user, unless that person providers clear and conspicuous disclosure of such collection and obtains the authorized user's consent prior to any such collection of information."
Another section that prohibits a number of "deceptive and unfair practices" makes it unlawful to install software that causes endless pop-up advertisements or that turns computers into "zombies" that are used to send spam to consumers.
According to a statement released by Pryor, he was motivated to introduce the bill because the industry has failed to regulate itself. As is so often the case, Congress is ready to jump in to fill the void.
An interesting aspect of the bill is that it requires “opt in” as opposed to “opt out.” In other settings, legislation has put the burden on the party seeking to avoid the intrusion. The “do not call” registry is an example. If consumers don’t take the initiative to get on the list, they are fair game for telemarketers. This legislation, however, puts the burden on the spyware installers – requiring them to take the initiative to obtain permission before installation. That approach seems a lot more fair!
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.