Legislating behavior

By Caron Carlson  |  Posted 2004-06-28 Print this article Print

"The big issue is: Are we regulating technology here, or are we regulating bad behavior?" said Dan Burton, senior vice president of government affairs at Entrust Inc., in Plano, Texas. "The concern of the software industry is that there are lots of [spywarelike] activities that are perfectly legitimate. We have to get to the dark and bloody crossroads where technology and policy meet."

Columnist Larry Seltzer says we should cut Yahoo some slack on its new toolbars tolerance for adware. Click here to read more.
Developing a definition of illicit spyware technology proved too difficult, so the industry urged lawmakers to focus on illicit behavior instead. The IT industry is also aiming for legislation that will pre-empt state laws, said Steve DelBianco, executive director of the Washington-based NetChoice Coalition, whose members include VeriSign Inc. and Oracle Corp.

"So many of us in industry are livid over what happened in Utah," DelBianco said, referring to the passage of a Utah anti-spyware law that critics say could have myriad unintended consequences.

Privacy advocates have expressed concern that the notice and consent provisions may not be sufficiently strong, allowing them to be buried in long end-user license agreements and overwhelming users.

"There will be times when consumers get 15 or 16 of these [notices seeking consent] in a row. People are just going to get used to clicking yes," said Ari Schwarz, associate director of the Center for Democracy and Technology, in Washington. "That doesnt do us much good in the privacy context."

Supporters and detractors both agree that legislation alone will not eliminate the threat of malicious spyware. Users are already swamped with notices and agreements, and conventional wisdom has it that few read them thoroughly.

"The reality is that most people dont read [end-user agreements] at all," said Roger Thompson, vice president of product development at PestPatrol Inc., in Carlisle, Pa. "The most encouraging thing is that people are becoming aware that there is a problem."

Lawmakers are particularly worried about fraudulent and deceptive spyware programs, such as home-page hijacking and keystroke-logging programs, which are already illegal under existing laws.

However, pending legislation lists these programs as crimes, making it easier for the Federal Trade Commission and others to combat them in court.

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