The Right Way to Fight Spyware

June 2005

By Wendy Seltzer, Electronic Frontiers Foundation Special Projects Coordinator

The New York State Attorney General’s office has filed suit against Intermix Media for deceiving people into installing and using spyware. The lawsuit is a step forward for users’ rights to control their own computers. It also demonstrates the right way to address the spyware problem: with lawsuits, not new laws. The New York complaint runs through a veritable catalogue of deceptive acts and practices: interception of web requests; installation of hidden programs, unrequested toolbars, mechanisms that report user activity back to Intermix and display advertising, etc. All of this was done with minimal notice and no genuine consent from users. Attorney General Eliot Spitzer charges Intermix with violating New York state’s prohibitions on “deceptive acts or practices” and “false advertising,” provisions common to state and federal law. He also charges the company with “trespass to chattels” for interfering with the use of personal computers onto which the software was downloaded.

The complaint is only the beginning of a lawsuit, of course, but the screenshots and descriptions leave little doubt that promoting spyware in the guise of a screensaver or game is indeed a “deceptive act.” If the company doesn’t agree to stop on its own, it’s quite likely a judge will put an end to these practices – using existing law. The lawsuit comes as Congress and many state governments consider anti-spyware legislation. Bills have been introduced in both the House and Senate providing detailed lists of prohibited activities, such as “modifying settings relating to the use of the computer or to the computer’s access to or use of the Internet, including … altering the default Web page that initially appears when a user of the computer launches an Internet browser” (S. 687). While the Congressional efforts may be well-meaning, such specific legislation is bound to be both too narrow and too broad. A law that targets web browser bookmarks and start pages says nothing about instant messenger traffic. And what about a portable device that connects to the Internet but offers no way to accept or reject the terms of a useful new feature?

New tech-specific laws will look outdated as soon as the technology changes, while creating a welter of regulations that hinder software development. Moreover, some of the federal proposals would preempt state law, blocking the very laws that may be most effective against malware. No one likes invasive spyware. As Spitzer’s complaint shows, however, older, more general laws already prohibit these deceptive practices. Rather than rushing to regulate a field that’s still changing, with laws that could have unintended consequences for legitimate software development, we should focus on enforcement of these existing laws. Kudos to the New York State Attorney General for doing just that.

For the original version of this piece online:
EFFector Vol. 18, No. 14 May 5 :

The Editor of the Law Updates Ben Challis has written an article examining potential new online methods of payment for copyright use of films and music which might have a serious impact on personal and online privacy. See: The Digital Dilemma – How Do We Pay The Piper? at:

No Comments

Comments are closed.