Class Action Suits Arent the Best Way to Challenge Spyware

By Larry Seltzer  |  Posted 2005-09-26 Print this article Print

Opinion: When the fight against spyware moves to the wrong venue, it's lawyers who profit.

Its America, so it was inevitable. Adware and spyware vendors have ended up in court, and the plaintiffs are seeking class certification. It started several months ago with a suit against DirectRevenue. Now another suit has been filed against 180Solutions (details here in PDF form) for similar reasons. 180Solutions, aka MetricsDirect, has a long and notorious history in the adware business and will make an unsympathetic defendant.
The whole thing makes me uncomfortable because class action cases so often seem to work only to the benefit of the attorneys.
Youve seen it before and its not hard to imagine in this case: The settlement nets 180Solutions victims $17 coupons for some service they dont want and the attorneys get $74 million. Beyond the basic injustice of it all, it creates incentives for the attorneys, since theyre basically dealing with phony clients, to service their own interests primarily. At least the suit is being filed in a U.S. District Court as opposed to some out-of-the-way state court. But all of this has more to do with the class action system than with the spyware problem and with the merits of this case. Im going to assume, for the sake of argument, that the factual claims of the phony plaintiff are largely accurate, in the sense that spyware was actually surreptitiously installed on his computer and that it impeded his ability to enjoy the use of said computer. Some of those factual claims are compelling, bearing in mind that we havent yet heard the other side of the story. The complaint insists that 180Solutions software is installed surreptitiously, without consent. 180Solutions, for its part, insists that all of its software is "permission-based." Graphics proclaiming "No Spyware," "No Hiding," "Privacy Pledge" and similar stuff adorn its Web site. At the same time, the company says it has sued a bunch of former affiliates abroad for installing its software using botnets and without getting complete user approval. How did botnets figure into this? I can only assume that the affiliates (all in distant lands like Lebanon and Canada) actually installed the 180Solutions software onto the botnet computers themselves. Seems to me that this suit concedes the point that 180Solutions software can be installed by an affiliate without user permission. Next page: What 180Solutions actually does.

Larry Seltzer has been writing software for and English about computers ever since—,much to his own amazement—,he graduated from the University of Pennsylvania in 1983.

He was one of the authors of NPL and NPL-R, fourth-generation languages for microcomputers by the now-defunct DeskTop Software Corporation. (Larry is sad to find absolutely no hits on any of these +products on Google.) His work at Desktop Software included programming the UCSD p-System, a virtual machine-based operating system with portable binaries that pre-dated Java by more than 10 years.

For several years, he wrote corporate software for Mathematica Policy Research (they're still in business!) and Chase Econometrics (not so lucky) before being forcibly thrown into the consulting market. He bummed around the Philadelphia consulting and contract-programming scenes for a year or two before taking a job at NSTL (National Software Testing Labs) developing product tests and managing contract testing for the computer industry, governments and publication.

In 1991 Larry moved to Massachusetts to become Technical Director of PC Week Labs (now eWeek Labs). He moved within Ziff Davis to New York in 1994 to run testing at Windows Sources. In 1995, he became Technical Director for Internet product testing at PC Magazine and stayed there till 1998.

Since then, he has been writing for numerous other publications, including Fortune Small Business, Windows 2000 Magazine (now Windows and .NET Magazine), ZDNet and Sam Whitmore's Media Survey.

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