Posted by Orin Kerr:
Spyware is Already Illegal, But Let's Pass A Law Banning It Anyway:
Are you annoyed by spyware? Would you like it to be illegal? Well I
have good news for you: it already is.
Most spyware violates 18 U.S.C. 1030(a)(2), part of the Computer
Fraud and Abuse Act of 1986, which broadly prohibits unauthorized
access to computers. Most spyware also violates equivalent state
unauthorized access laws, too (for a review of these federal and state
laws and what they do, see [1]this article). Federal or state
prosecutors could bring criminal cases against spyware companies for
installing spyware at any time. Some spyware also appears to violate
the Wiretap Act, 18 U.S.C. 2510-22, which prohibits intercepting your
private Internet communications without your consent. The Wiretap Act
authorizes both criminal and civil suits -- and the civil suits
provide attorney's fees, statutory damages, and even the possibility
of punitive damages for victorious plaintiffs. And to the extent that
spyware involves deceptive trade practices, spyware can also be
regulated by the FTC. I'm not an expert in the jurisdiction of the
FTC, but my understanding is that it is broad enough already to
regulate spyware.
Of course, you'd never know this if you followed recent goings on in
Congress. [2]Various bills have been proposed that would (gasp!) make
spyware a crime, or else give jurisdiction over spyware to the FTC. I
haven't looked closely at each of the proposed bills, but the ones I
did look at seemed to mostly replicate existing law. Maybe the folks
in Congress just don't understand current law; it's possible, given
that the Justice Department has't pursued any spyware cases on the
criminal front, the FTC apparently hasn't regulated spyware
aggressively, and plaintiff's attorneys don't understand the Wiretap
Act well enough to see the claim. Or maybe Congress just wants credit
for solving a problem, and they won't let the fact that they already
solved this problem a long time ago get in the way.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=399740
2. http://news.com.com/2010-1071_3-5690270.html
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