Nearly two years ago, the U.S. Congress approved the first federal law regulating unsolicited junk e-mail, marking a historic date that finally freed our in-boxes from the scourge of a punishing flow of spam. Not quite. In reality, the poorly named Can-Spam law probably increased the volume of spam clogging our e-mail clients by zapping state laws such as one in California that had mandated a stricter "opt-in" standard for unsolicited electronic mail.
Now politicians are promising to enact new laws against spyware. It might be time to start worrying again.
At a hearing last week, senators pledged prompt action. "According to a recent survey by the National Cyber Security Alliance, 93 percent of people feel that spyware is a serious problem, and 61 percent believe that Congress should be doing more to combat this problem," said Gordon Smith, an Oregon Republican. "Consumers have now downloaded free versions of the two most widely used anti-spyware programs over 45 million times."
Three of those--including Rep. Mary Bono's H.R.29, already approved by the House of Representatives--would explicitly override state laws, even if the state laws are more consumer-friendly than the federal law.
Many are. Last year, Utah enacted an anti-spyware law that was so strict that WhenU sued to block it even before the measure took effect. WhenU is one of those companies that treads the line between adware and spyware--its software is surreptitiously installed when unsuspecting Windows users download file-sharing programs like BearShare. Some 87 percent of WhenU "customers" are unaware of where that constant stream of pop-up ads comes from from.
No wonder WhenU CEO Avi Naider says that his company "supports anti-spyware legislation at the federal level." It would eliminate the possibility of state legislators taking a harder line.
Federalism on the Internet
It's true that many legitimate businesses would prefer what they like to call a "uniform federal standard" rather than a "patchwork of dozens of state laws."
But in reality, what's likely to happen is that the state courts will retain authority over common-law torts like invasion of privacy and fraudulent misrepresentation. Plus we'll see five different federal laws, administered by a dozen different federal agencies, each bent on expanding its jurisdiction daily. That's a situation only a lawyer could love.
A better solution might sound like a radical one: for Congress to do nothing.
The Federal Trade Commission has told politicians it already possesses broad authority to punish any fraudulent and deceptive adware or spyware practices with fines, as it demonstrated by suing one bottom-feeding spyware company last week. Department of Justice prosecutors have said the same thing about filing criminal charges.
Congressional forbearance would permit those federal lawsuits and state laws to continue. More importantly, it would support the long-neglected idea of federalism, which Justice Louis Brandeis said let states become "laboratories of democracy." For decades, regulatory power has been increasingly consolidated in the federal government, much to the dismay of critics who have warned that state legislators might know more about what their constituents need than some unelected bureaucrats in a distant Washington. That addiction to centralized power has led to bizarre twists, such as federalized speed limits and a Supreme Court that firmly believes state law can never permit medical marijuana use.
George Mason University professors Bruce Kobayashi and Larry Ribstein have written about how Internet federalism affects Americans' privacy rights. They say that "federal law would perversely lock in a single regulatory framework while Internet technology is still rapidly evolving. State law, by contrast, emerges from 51 laboratories and therefore presents a more decentralized model that fits the evolving nature of the Internet. Moreover, competition among state laws can mute the inefficient tendencies of (special interest group) legislation."
That same argument holds true for spyware regulations. And we've seen how well the Can-Spam law has worked. This time, let's hope that Congress is listening.
Biography Declan McCullagh is CNET News.com's chief political correspondent. He spent more than a decade in Washington, D.C., chronicling the busy intersection between technology and politics. Previously, he was the Washington bureau chief for Wired News, and a reporter for Time.com, Time magazine and HotWired. McCullagh has taught journalism at American University and been an adjunct professor at Case Western University.
Leave it to the politicians to continue to miss the mark.
Leave it to the politicians to contiue to miss the mark and try to leave loopholes for their lobbists.
If they intend to target those using spywear, then they should consider something along the lines that would make it illegal to be a participant in a spam run that uses "zombie" pc's. Since these machines will obscure the sender, it is therefore necessary to go after the companies/websites affiliated with these "attacks".
So if Spamford Wallace were to return and use a zombie machine to spam the world about joe's auto body, then the law should be able to go after Joe's auto body along with Spamford.
Not just financial, but a felony that could include jail time.
Another fine example is Bobby Soloway vs Robert Braver.
Braver won a court judgement against Soloway. In part there is a court order that Soloway is to refrain from spamming.
Soloway has ignored that court order and is sending spam to any and every e-mail address trying to say that he'll send their message (SPAM) for free.
He's trying to take advantage of the loophole that non-profit and charitable organizations have.
Close that loophole and make the use of a zombie a felony and you'll further see a reduction in spam.
Leave it to the politicians to continue to miss the mark.
Leave it to the politicians to contiue to miss the mark and try to leave loopholes for their lobbists.
If they intend to target those using spywear, then they should consider something along the lines that would make it illegal to be a participant in a spam run that uses "zombie" pc's. Since these machines will obscure the sender, it is therefore necessary to go after the companies/websites affiliated with these "attacks".
So if Spamford Wallace were to return and use a zombie machine to spam the world about joe's auto body, then the law should be able to go after Joe's auto body along with Spamford.
Not just financial, but a felony that could include jail time.
Another fine example is Bobby Soloway vs Robert Braver.
Braver won a court judgement against Soloway. In part there is a court order that Soloway is to refrain from spamming.
Soloway has ignored that court order and is sending spam to any and every e-mail address trying to say that he'll send their message (SPAM) for free.
He's trying to take advantage of the loophole that non-profit and charitable organizations have.
Close that loophole and make the use of a zombie a felony and you'll further see a reduction in spam.
Other times, law doesn't help any. This is one area that nobody should expect effective laws on state or federal or even the superstate (like EU) level. Spam and malware both have technology solutions, let's hope Congressional action doesn't hinder those. I don't think it ever has. Congress will get involved, things will improve due to technology, and Congress will issue a study showing how effective its laws have been. It keeps them off the streets, I guess.
Other times, law doesn't help any. This is one area that nobody should expect effective laws on state or federal or even the superstate (like EU) level. Spam and malware both have technology solutions, let's hope Congressional action doesn't hinder those. I don't think it ever has. Congress will get involved, things will improve due to technology, and Congress will issue a study showing how effective its laws have been. It keeps them off the streets, I guess.
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If they intend to target those using spywear, then they should consider something along the lines that would make it illegal to be a participant in a spam run that uses "zombie" pc's. Since these machines will obscure the sender, it is therefore necessary to go after the companies/websites affiliated with these "attacks".
So if Spamford Wallace were to return and use a zombie machine to spam the world about joe's auto body, then the law should be able to go after Joe's auto body along with Spamford.
Not just financial, but a felony that could include jail time.
Another fine example is Bobby Soloway vs Robert Braver.
Braver won a court judgement against Soloway. In part there is a court order that Soloway is to refrain from spamming.
Soloway has ignored that court order and is sending spam to any and every e-mail address trying to say that he'll send their message (SPAM) for free.
He's trying to take advantage of the loophole that non-profit and charitable organizations have.
Close that loophole and make the use of a zombie a felony and you'll further see a reduction in spam.
If they intend to target those using spywear, then they should consider something along the lines that would make it illegal to be a participant in a spam run that uses "zombie" pc's. Since these machines will obscure the sender, it is therefore necessary to go after the companies/websites affiliated with these "attacks".
So if Spamford Wallace were to return and use a zombie machine to spam the world about joe's auto body, then the law should be able to go after Joe's auto body along with Spamford.
Not just financial, but a felony that could include jail time.
Another fine example is Bobby Soloway vs Robert Braver.
Braver won a court judgement against Soloway. In part there is a court order that Soloway is to refrain from spamming.
Soloway has ignored that court order and is sending spam to any and every e-mail address trying to say that he'll send their message (SPAM) for free.
He's trying to take advantage of the loophole that non-profit and charitable organizations have.
Close that loophole and make the use of a zombie a felony and you'll further see a reduction in spam.