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--- Begin Message ----Caveat Lector- http://weblog.infoworld.com/foster/2004/06/29.html#a121 Tuesday, June 29, 2004 The Can-Spy Act?Oh, oh. In case you haven't noticed, there's a very familiar pattern to current legislative activity regarding anti-spyware laws. It's very reminiscent of where Congress was last year at this time on anti-spam legislation, and that ultimately led to the disastrous Can Spam Act. Are we soon to see the enactment of the "Yes, You Can Spy Act" as well? The parallels with the situation that created the Can Spam Act are downright scary. Just as there was an all too justifiable hue-and-cry last year about spam, the politicians are now keenly feeling the need to do something about the spyware plague. The states are passing strong laws that might actually be effective, a trend that marketing and technology lobbyists are telling Congress is a bad, bad thing that requires pre-emption by federal law. And while everyone agrees that the things the worst offenders are doing are already highly illegal, for some reason our national lawmakers think the answer is to concentrate enforcement powers in an already overwhelmed Federal Trade Commission. New spyware laws aren't needed for the homepage hijackers, keystroke loggers, etc. that already clearly constitute violations of the Computer Fraud and Abuse Act and many others laws. The one category of offenders that legislators could address is the We're-Adware-Not-Spyware vendors like Gator (now calling itself Claria) and WhenU. As we know, these companies hide the true nature of their software deep in their sneakwrap licenses, allowing them to claim they have "consent" from users who, of course, have no idea they are "agreeing" to have a torrent of pop-up ads take over their computer. This supposed consent makes it hard for the many victims who try to sue them, not to mention law enforcement agencies, to hold these companies responsible for the very considerable damage they are doing to the Internet. Unquestionably, devising a fair law that can fight sneakwrap-sanctioned spyware is no easy task, but what appears at the very least to be a valiant attempt is the recently-enacted Utah spyware law. The best proof of that is WhenU's lawsuit seeking to overturn the law because it would keep them from doing business in the state. (Sadly, last week WhenU was granted a temporary injunction delaying enforcement of the Utah law.) And, just as California's tough anti-spam law suddenly put Can Spam on a fast track to enactment last year, Utah's anti-spyware seems to have galvanized Congress into action. H.R. 2929, currently called the Spy Act, is moving through the House so fast it's hard to keep track of what it says. The version now headed to the House floor (after being approved by the same House committee that approved what became Can Spam) does at least have a requirement that the user be notified in plain English what the spyware/adware does. Unfortunately, it also very pointedly pre-empts the much stronger Utah law. Even worse is the fact that it leaves enforcement solely to the FTC, even though FTC officials have made it clear they have neither the will nor the means to go after any but the most criminal offenders. It's a good bet that, once the lobbyists are finished with it, the Spy Act will read more like the Sneakwrap-Sanctioned Spyware Protection Act. Software industry lobbyists are already attacking the law's rather mild notice-and-consent requirement as being too burdensome. In fact, organizations that have long championed the sneakwrap licensing approach now claim they are trying to save users from having to read too many notices. For example, the Business Software Alliance issued a statement saying the notices the bill mandates won't allow consumers to distinguish between legitimate vendors and the bad actors. "We are concerned that the 'one size fits all' notices approach will not help to inform consumers about how their personal information is being used, and will become just another screen to click 'I agree.'" BSA CEO Robert Holleyman said in the statement. I can't begin to tell you how ironic it is for someone who watched UCITA's creation to hear the BSA argue that users should not be required to mindlessly click OK. (When you think about it, Gator and WhenU actually represent the very epitome of the UCITA-style transactions that BSA's lobbyists essentially authored.) But, of course, the software industry is less concerned about spyware here and more concerned that spyware laws not force them to clearly disclosure their own terms and conditions. Since Congress isn't really consulting much of anyone else, we can be pretty certain they are going to get it wrong again. ==================== http://www.gripe2ed.com/scoop/story/2004/3/18/91233/9115 Legal Spam By Ed Foster, Section Columns Posted on Thu Mar 18th, 2004 at 09:12:33 AM PDT Remember the good old days, way back in December of 2003? Back then, when spammers told you they had the legal right to send you their junk e-mail, at least you knew it was a lie. Now, with enactment of the "Yes, You Can Spam Act," the spammer might well be telling the truth. On the same day last week that AOL, Earthlink, Microsoft and Yahoo held their dog-and-pony show announcing lawsuits against named and unnamed spammers, a reader forwarded me what she considered a very disturbing piece of junk e-mail. The spam, touting the services of a bulk e-mail house supposedly located in Brazil, trumpeted that it was sent "in compliance with the CAN-SPAM Act of 2003, approved and signed by the president of The United States of America on Dec. 16, 2003. For this reason, this e-mail cannot be considered spam." ---------------------------------------------------------------------------- ---- The reader was about to forward the message to the FTC's unsolicited commercial e-mail (UCE) complaint address ([EMAIL PROTECTED]) when it occurred to her that perhaps the spammer was right. "Hold on, does Can-Spam mean that I can't complain to the FTC about UCE now?" she wondered. The Brazilian spam provided a street address in Rio, she noted, plus a link to a website where she supposedly could have her e-mail address removed from the spammer's list. "They are following the letter of the law as far as I can prove. It looks like my choices are to keep receiving this spam or take a chance that the scumbags who sent it really have a legit remove-me page. No, I'm not such an idiot that I would go there, but what else can we do under Can-Spam?" Well, not much. The Can-Spam Act gives spam recipients no recourse against spammers, even when a message does clearly violate the law's requirements for legal unsolicited commercial e-mail. Only government agencies and Internet Service Providers (ISPs) have any enforcement rights under Can-Spam. But then can't we at least take heart in the lawsuits the four big ISPs announced last week? Doesn't that mean Can-Spam is doing at least some good? I don't think so. I'm not sure why AOL, Earthlink, Microsoft and Yahoo thought it politically correct to bill these actions as Can-Spam lawsuits. >From their descriptions it's clear these lawsuits could have been filed without Can-Spam. They are very typical of the kind of lawsuits these and other ISPs have been bringing against spammers for many years, and with some success when they manage to identify the "John Does" involved. The worst spammers violate all kinds of laws, including federal and state statutes against computer fraud and data theft -- Can-Spam isn't really needed. It is ironic to note, though, that three of the four states in which these lawsuits are being filed (California, Virginia, and Washington) would have even tougher anti-spam laws to apply to these lawsuits if it weren't for the Can-Spam Act preempting them. If we look closely, I think the ISP lawsuits actually demonstrate the real danger of how Can-Spam ultimately legalizes a whole class of everyday spam. Earthlink posted the filing for its lawsuit with its press announcement on the lawsuits, and in it Earthlink concedes that "some types of spam-related misconduct may comply with the Can-Spam Act." Earthlink therefore feels compelled to make the rather awkward argument that the Can-Spam Act only supplements "the various causes of action under which spam is already illegal" for any use that violates the ISP's posted policies against UCE. Can-Spam isn't necessary for filing lawsuits against the spammers who break every law in the book, but what it does do is threaten the ability of ISPs to terminate the accounts of users who send out UCE. If an ISP's customer sends out UCE in compliance with the rules of the Can-Spam Act, can the ISP drop their account? Believe me, no ISP is going to want to put Earthlink's legal argument to the test. If paying customers are sending UCE in accordance with federal law, denying them access to their accounts is going to very problematic, no matter what the ISP's acceptable use policy says. As I was writing this, I just happened to receive an unsolicited commercial e-mail for "Mortgage Loans Made Easy." In content it is very similar to a mortgage leads spam Earthlink cites in its lawsuit, except at the bottom it contains the increasingly common UCE claim that it's transmitted "in accordance with the Can Spam Act of 2003 Section S.877." And, as with our reader's Brazilian spam, I couldn't prove otherwise. It's spam, but it appears to be perfectly legal. And this leaves me with an apology to make. Long-time readers may recognize the similarity between these "Can-Spam Compliance" claims and the "Murk" notices spammers have been using for years. The difference, of course, is that the Murk notices were lies because the Murkowski bill, a flawed attempt at anti-spam legislation in 1998, was never actually enacted. As one of those who railed against the Murkowski bill way back when, I guess I wish now we'd all held our tongues. As weak as it was, the Murkowski bill would have left us better off than we are under the "Yes, You Can Spam Act." ------------------------ Yahoo! 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