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Spyware Company Sues Utah Over Anti-Spyware Law
cgibby98 writes "An earlier Slashdot article talks about how web businesses oppose Utah's new spyware law. A story in Tuesday's Deseret Morning News says that WhenU.com filed suit Monday against the state, its governor, and attorney general, trying to keep the law from going into effect next month. The lawsuit claims the law violates WhenU's constitutionally-protected right to advertise."
So, lemme ask: Would you allow me to install some software on your phone line that would interject with advertisements from time to time? No. You pay for a specific service with your phone line and you don't want to have to be interrupted with ads when you are talking with family, friends or business partners. If this lawsuit is accepted, then one would not have any protection to prevent ads from appearing during your phone calls. As a resident of Utah, I am not usually happy with all of the legislation that occurs up on capitol hill here, but this is one bit of legislation that I fully support.
From the suit: "private enforcers, motivated by the act's draconian penalties and the promise of attorneys' fees, may still seek to sue WhenU for allegedly violating the act."
Well, yeah. That is just the point folks. I don't want spyware on my system. (one of the many reasons I use a Macintosh)
Thus, the act presents WhenU with the impossible choice of either foregoing constitutionally protected advertising and spending significant sums to comply with the act (thereby reducing the effectiveness of its business), without any guaranty that it will avoid liability in doing so, or else being subjected to millions of dollars of claims by private litigants."
No, actually. It is quite simple: Go out of business. Your business model is corrupt and unwanted by both consumers and legitimate businesses. We don't want you here and you can't force yourself on consumers that do not want you. That is the point of the law, the people have spoken and the legislators have listened and responded. And NO.....you don't have a constitutionally mandated right to invade my privacy. That is what it really comes down to.
Visit Jonesblog and say hello.
"WhenU's software, one of the apparent targets of the act, is installed only with user consent, and does not invade the privacy of computer users..."
I'm not familiar with WhenU's software, but I find this hard to believe. Can this statement be defined with the same style of deceit that seems to encompass adware companies? Anyone who knows of their spyware's habbit's please shed some light on this.
The law also curbs pop-up advertising on the Internet and calls for penalties of $10,000 per violation.
That's quite significant for a pop-up, don't you think? I mean I'm 100% against that kind of advertising, but $10000 seems incredibly steep.
Wireless News www.DailyWireless
Give me a break! Their argument is ridiculous! The "right to advertise"?! When they're using MY hard drive, MY CPU cycles, and MY bandwidth to do it?! If some brick-and-mortar company spray painted their ads on the side of my house, or hooked up the lighting for their billboard to my electrical socket, then surely that's not protected under the "right to advertise"... especially if they are using ads that are "stolen" from their competitors...
I'm not saying that this is a great law, especially since it's basically one advertiser fighting against another advertiser, but still, enough with the constitutional rhetoric already, what we're talking about is people hijacking personal property, be it my computer or some other company's advertisements! Just give me a choice (even if it's buried in the EULA) and get on with it! Like it's that hard to throw in a window saying "Do you want to install this?"
In other news: Microsoft sues the United States over antitrust laws....crap now I'm giving them ideas.
Pretty widgets? What pretty widgets?
Congress shall enact no law which prevents a company, firm, organization or political party from annoying the living hell out of you with advertising. Firms may use technologies existing or not yet existing to "blast" consumers with advertisements or steal personal information.
Funny how I missed that earlier!
God Bless America. Why? Did it sneeze?
Which particular section of the US constitution are they referring to? I don't recall anything in there about the right to spam, the right to install spyware or the write to take over someone else's computer in pursuit of the almighty dollar -- but as a UK citizen I admit to not having read it as closely as a US citizen may have done.
Imagine if WhenU wins. I can just see the massive amounts of viral spam that will flood the internet. People will begin writing viruses for the sole purpose of spreading their advertisements. No longer will they just mislead and trick helpless users into installing their "applications," but also they'll be proactive and force people to install their "applications" by exploiting bugs in common e-mail clients and internet browsers.
The good side is that the problem is self healing. If they lose, no problem it's all good. If they win, spammers will take it too far and it will get repealed.
I can count to 1023 on my hands. Ask me about #132.
Maybe, if they didn't have their software installed unwantingly by hidden methods of attaching to other software and trick pop-ups, then they wouldn't have laws passed against them. Of course, at the same time, nobody in their right mind would install their crap. I mean seriously, who would be excited about some new freeware they found that redirects their surfing and increases their amount of popup ads. Even when they don't have a browser open.
The Supreme Court has ruled numerous times that commercial speech (advertising) can be restricted. It's not the same as political speech which gets a much higher level of protection.
Do they actually provide any measurable service to the users who use their product?
They sell advertising. Advertising is legal. But in order to sell advertising, they have to own or otherwise pay for the right to use the medium that they use to advertise.
If you own a building with a billboard, you can sell that space.
If you provide some form of media (print, tv, movies, or internet), you can sell advertising.
This company and others like it, do not own your pc, they are not your ISP, and they are (probably?) not providing some form of service to you.
So what right do they have to advertise to you, or sell information from your PC, beyond the end user being stupid enough to agree to some liscence?
END COMMUNICATION
then I think they are playing with fire, because it can easily be alleged that they are violating other constitutional rights such as rights to privacy and protection from unreasonable search.
You see, if they want to make bogus charges, we can too.
P.S. IANACLBIDSAAHELN
(I am not a constitutional lawyer but i did stay at a Holiday Express Last Night)
-- You see, there would be these conclusions that you could jump to
I just thought I'd share, so no one else has to waste their time looking for it. (I haven't read it yet, however)
Build it, and they will come^Hplain.
I consider spyware and adware publishers to vandalists. I work at the help desk at my local ISP and I spend more time explaining to people what spyware is and why we can't fix their computers for them then anything else. Sure many times you have to click shady license agreements, but I myself have personally seen how easy it is to be bombarded with illegitimate software. I run spybot and Adaware often and use the immunization features and usually only browse with Firefox yet last week I still got "infected" with 5 different spyware apps simultaneously. They killed my Winsock stack. Luckily I know how to repair XP with my eyes closed but to 99% of the users out there this would send them running to a computer repair shop with their wallets open. Unfortunately, most users are ignorant that spyware even exists and blame their manufacture or worse, their ISP, for their computer slowing to a crawl. They don't understand that a microchip doesn't deteriorate with age, but the software running on it sure can. It's pretty sad when I have to tell a 90 year old woman trying to get her grandkids emails that she has to find someone else to fix her PC for her because she downloaded software to make her IE have pretty skins. Advertising is one thing if you agree to it as a means to keep consumer costs down, but when those ads corrupt a computer to useless that's not very cost effective. My company is thinking about charging to support spyware repairs but you don't want to even know how much that'll cost granny. For now I guess it's just sorry, but we can't support that. (We're not really mean about it, we often spend many hours in Regedit or MSConfig but there's only so much you can tell a novice over the phone plus time is money. We have real network issues to fix first.)
LOOP1: MOV CX,2 LOOP LOOP1
I for one can say that spyware companies have cost our company at least 200+ hours of my time of un-installing them and running ad-aware, which still doesn't even get rid of all of them. We ran ad-aware on a computer the other day and found 560 something pieces of spyware, now how come we cannot sue these companies for costing others time and money? We do the same thing if somebody defaces property, we make them pay for it so we don't have to waste our time and money on it. I am just waiting for someone to sue these companies, my bosses are both lawyers and I will be pressing them to do the same if someone else does it to show that it can be done!
If carrots got you drunk, rabbits would be fucked up. - Comedian Mitch Hedberg R.I.P. 03/30/68-2/24/05
constitutionally-protected right to advertise.
is the new constitutional right that will replace that tired old 4th amendment right not to be subject to unreasonable search and seizure.
The price was right and the powers that be figured they ought to give the people a new amendment in place of the old one (if anyone counts the total number will be the same) that was getting nullified by recent legislation.
Wait.
My mistake.
You do get an additional constitutional amendment protecting you from gay people calling themselves legally married.
Just don't say the constitution is being eroded, no sir.
We're getting more constitutional protections, not less.
"Provided by the management for your protection."
I was trying to see WhenU's side of the story by looking at . Unfortunately, when I tried to go there, my company popped up its standard "We can't let you see this web site" message. The blocking category? "Spyware". Apparenly the State of Utah is not the only group that classifies WhenU that way.
There's no point in questioning authority if you aren't going to listen to the answers.
"If some brick-and-mortar company spray painted their ads on the side of my house"
I think you're onto something there... *cough*
Ahem, can someone give me a list of spyware companies' addresses? I need some physical space to place a little advertising...
If WhenU.com is unhappy about Utah law, I can only imagine how they will respond if either the proposed Software Principles Yielding Better Levels of Consumer Knowledge (SPYBLOCK) Act or the Controlling Invasive and Unauthorized Software Act is passed and signed into law.
These bills have been covered by:
PC World
InfoWorld
ComputerWorld, and
TechNewsWorld
Only Women Bleed (Sex, Sharia remix)
The most notable case is Central Hudson Gas & Electric v Public Service Commission, which resulted in the Central Hundson test:
Lawmakers that are anti-spyware would likely consider it deceptive.
There are already legal limits to aggressive advertising, that are not considered to impinge free speech. To name a few:
- Posting monster billboards in residential neighbourhoods, even with the landwner's permission. (Except during elections)
- Phoning or ringing doorbells or standing in front of my house with a megaphone bellowing sales pitches at ungodly hours.
- Junk faxes
- Indecent, misleading or libellous ads, including those which appear to be regular traffic signs. (Road closed - detour through mall)
- Posting on private property without the owner's explicit permission.
I think this sort of thing is covered by the last case. If I send a 10 page flyer to your house that gives me permission to make unlimited use of your personal property unless you read the fine print on page 7 and mail it back to me within 10 days with the "NO" box ticked, no court in the land will accept this as implied permission. And it ought to be the case for spam/spyware as well.
My rights don't need management.
Now this isn't a troll, because common sense tells me that spyware should not be allowed to operate the way it does today, but... From legal perspective, don't users agree to install spyware and accept its activities via those click-through EULAs that come with various "free" downloads?
The issue seems not to be spyware, but not adequately warning users of what is being installed on their systems. It would seem to make more sense to pass legislation that requires standard, plainly and prominently shown notification of what habits a program tracks and what sort of advertising it does, shown on its own page before installation. A blanket ban seems a bit extreme.
On another note, spyware seems to invade my system even though I am pretty saavy and do all I can to avoid it. It would appear some companies take advantage of IE exploits to stick these things on my system, but I can't say for sure.
ya' mean we ain't there yet?
spit on the sidewalk? - 90 days...
climb a rock? - 180 days...
joke about "explosive flip-flops" in the air-port? - guantanimo bay...
How about a constitutional ammendment instituting a "Sunset" clause -- something like giving legislation a maximum life span of 3 terms, after which it must either be re-proposed, and ratified, or taken off from the books.get rid of these silly laws about how one can (or can't) wear their facial hair, in church, &c., while we're at it.
If WhenU wins the court will make a statement which will limit what laws the government are allowed to make. They're near viral already. Have you ever tried to remove one of the bad ones using "Add/remove programs?" It simply re-installs itself as a different name. That's VERY borderline viral already. They also use misleading popups to install themselves. Some will install using the plugin-style remark, "You need to download and install this plug-in for internet explorer in order to view the current webpage."
If they win, they will do things like the following scenario with a particularly unskilled computer user, we'll call him "Cloobie":
1.) Cloobie searches the web for a program to synchronize his computer's clock to a standard source.
2.) Cloobie gets stuck in a recursive pop-up asking for authorization to install a piece of software, once he gives up, and agrees he sees a 500 page EULA stating that the software has to right to do basically whatever it wants and he agrees to allow it.
3.) Cloobie is happy, he has found what he wanted.
4.) Cloobie happens to be on a company-owned computer and the software writes itself to all open shares, doing techniques like renaming other executable files and taking their names. The program silently installs on anyone's computer who runs the executables, and then the executable simply passes on to the real app they wanted to run.
End result is a virus that could technically be construed as legal, even if on shakey ground.
I can count to 1023 on my hands. Ask me about #132.
Besides the invasion of privacy, spyware steals CPU cycles, disk space, and the productive value of the PC. As a Sys Admin, I am constantly battling spyware with "Drive-by" installs. The loss of business productivity is astounding.
Could the spyware companies be shut down using anti-racketeer laws (assuming they are located in the US)?
Corporations cannot use the 'bill of rights' since corporations have never explicitly been given any 'rights'. There have been judgements that have caused mass delusions within the legal profession that corporations have 'rights', but no changes have been made to the constitution to grant same 'rights' to corporations as those of citizens.
Corporations should-not/cannot be given the same rights as citizens. Corporations cannot be held to equal responsibilities as citizens, nor can be punished to equal measurements to citizens. Corporations have much more resources available to utilize the legal and/or government systems to their own purposes. The people responsible for running of corporations are not held responsible nor punished as harshly when found guilty.
The software protects users' privacy by uploading a database of content in small chunks to individual desktops, and then determining on the desktop whether to retrieve information from WhenU.com or third-party servers. To protect user privacy, the same database of content is sent to all desktops. Decisions regarding which ads to retrieve to an individual desktop are all processed on the user's desktop - and isolated from WhenU.com servers.
n rather than a privacy issue. Bill O'Reilly would be proud of that spin.
NOTE: It does NOT say the results of these decisions are not sent back to WhenU's servers. It merely states the "decisions regarding which ads to retrieve to an individual desktop are processed on the user's desktop". This reveals:
1. They are choosing to expend the user's processing/memory resources to make these decisions in lieu of their own network. That's more of a lets-waste-the-user's-resources-instead-of-our-ow
2. They are not explicitly saying they aren't collecting detailed info on the criteria used to make a decision; merely that the decision is being made locally. The words are twisted in such a way as to give the user the false impression that they are somehow protected when they are not.
3. They can at any time, elect to pull content from WhenU's servers instead of the localized database, which in effect sends the decision information to WhenU and worse, unnamed "third parties".
User privacy is also protected in the following manner:
1) Personally-identifiable information is NOT required in order to use the software and
All they say here is the info is "not required" - which is meaningless. It doesn't say they won't try to acquire personal information, which they obviously will.
WhenU.com does NOT know the identity of individual users of the software
1. This is a red herring. They can easily collect enough information to qualify the individual identity of the user, but they can claim that even with all this information, there is no guarantee [ever] of knowing whether the information is accurate, therefore they "do NOT know the identity".
The important thing to note here is, they are merely claiming they "do not know the identity"; they're not saying they "WILL not seek the identity", or "will not collect personally identifiable information". They will and they do, but if you ask them, they'll say, "Gosh, we really don't know if we could identify you based on the info we've collected..."
2) As the user surfs the Internet, URLS visited by the user (i.e. the user's "clickstream data") are NOT transmitted to WhenU.com or any third party server
This is a great example of the classic privacy policy snow-job. What they are leaving out is the three magic words which are implied: AT THIS TIME "URLs are not transmitted to WhenU.com". Because of the policy being subject to change at any time, this statement merely says right now they're not getting that info. It doesn't say they "will not ever" collect this information. Why not say that?
3) WhenU.com does NOT assemble personally-identifiable browsing profiles of users
4) WhenU.com does NOT assemble anonymous machine-identifiable browsing profiles of individual users
5) WhenU.com does NOT track which ads and offers are seen or clicked on by individual machines - analysis and tracking is done in the aggregate.
Again, more of the same. "Here's what we're doing RIGHT NOW" - it doesn't mean that tomorrow we won't be giving your personal info to every Herbalife distributor in North America, but right now we don't do that. Hooray! Yea, sign me up!