Senate Poised to Seriously Curtail Adware, Spyware

The growing interest of Congress and regulators in Internet practices continues--this time with serious consequences for online advertising. Today, the Senate Commerce Committee is considering legislation that would significantly curtail the use of ADWARE and SPYWARE software on the personal computers of every American.

The SPY BLOCK Act

Introduced by senior Senate Commerce Committee member Conrad Burns (R-MT), S. 687, the “Software Principles Yielding Better Levels of Consumer Knowledge Act" (popularly known as the SPY BLOCK Act) authorizes the Federal Trade Commission to go after any person engaged in deceptive acts and practices related to SPYWARE, and imposes stiff civil and criminal penalties for violation of the law.

Intent

S.687 is intended to put an end to deceptive online practices that install surreptitious software on the computers of unsuspecting users without any notification or consent. It prohibits a number of practices that cause the installation of computer software through e-mail, viruses, and advertising messages, as well as software designed to capture the personal information of the user.

For example, the bill prohibits the use of Zombies and Modem Hijacking—programs that take control of the user’s computer by transmitting or relaying commercial E-mail or a computer virus—and puts it in the hands of an unauthorized user. It also prohibits software that attacks the computer to effectively deny any further service to the owner.

Putting An End to Endless Loop Pop-Up Ads

The legislation expressly prohibits the installation of software launched for the purpose of “opening multiple, sequential, stand-alone advertisements in an authorized user’s protected computer without the authorization of that user and with knowledge that a reasonable computer user cannot close the advertisements without turning off the computer or forcing an application to close using means other than the ordinary means for closing the application.”

Preventing Identity Theft, and Tampering With Security and Browser Settings

S. 687 would prevent the installation of software that enables the theft of personally identifiable information from the user. It also prohibits software that disables the security settings and browser settings of a person’s computer, including a page that appears when a person launches an Internet browser or opens a bookmarked page.

Uninstall Deception

The bill disallows software that falsely represents that a computer user has the option to uninstall the program, but does not allow them to do so, or that falsely directs a user to the Internet to remove the software.

Adware That Conceals Its Operations

In a clearly marked title, Section 6 of the legislation would prohibit software that “causes advertising windows to appear on the protected computer regardless of whether any other non-advertising-related functionality of the software or of other software installed as part of bundle with such software is (A) activated by the authorized user; or (B) conspicuously active on the protected computer.

Adware Labeling Requirements

The only way Adware can be used is if “the software displays to the user, each time the software causes an advertisement to appear, a clear and conspicuous label or other reasonable means of identifying to the user of the computer,

(1)The identity or name of the software that caused the advertisement to appear;

(2)If the software was installed as part of a bundle of software, the name of a program in such a bundle that the authorized user is likely to identify as the main component of the software bundle; and

(3)A clear and conspicuous hypertext link to instructions concerning how the user may uninstall the software causing the advertisement to appear through usual and customary means within the computer’s operating system.

The exception to this requirement is when a user is accessing or using an Internet website or online service that is (1) owned or operated by the author or publisher of the software; or (2) the owner or operator of which has authorized the author or publisher of the software to display such advertisements to users of that website or service.

Stiff Fines and Penalties

The legislation imposes stiff penalties for violations, especially if they are determined to be part of a pattern of practice. In those cases, the FTC can impose fines up to $3 million for each violation. In addition to the seizure of assets, the FTC also can force violators to disgorge any ill-gotten gains derived through the unfair and deceptive acts. The bill also allows state attorneys general to bring actions on behalf of aggrieved citizens in federal courts.

Mark-up Today, More to Come

The SPY BLOCK Act is set for markup today in the full Senate Commerce Committee. Stay tuned for results and further action on this bill and its companion legislation in the House of Representatives. With all of this attention, something is bound to happen this Congress

© 2005 Adonis Hoffman