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Judge Halts Utah's Spyware Law
TheFarmerInTheDell writes "According to CNet News, a judge in Utah has granted an injunction to WhenU.com to temporarily halt the state's new anti-spyware law from going into effect. WhenU filed suit in April asking for an injunction, and this judge has decided that their claim of abridging their First Amendment Rights has enough merit to issue the injunction. What about our rights not to have to deal with this scumware?" (This previous post mentions Ben Edelman's research on WhenU and other spyware makers' activities.)
So when does their 'right to free speech' end and my right to be left alone on my personal computer, in my private residence, begin?
A love beyond compare...
Isn't there an electronic no-tresspassing law? If not, shouldn't there be?
the major advances in civilization are processes which all but wreck the societies in which they occur - A.N. White
*sigh*
I grew up there. It is a really nice place if you like the outdoors-- skiing in the mountains, hiking in the deserts, river rafting... But damn if the judges aren't screwy when it comes to protecting all sorts of hair-brained business schemes.
Ya know all those herbal supplemental crap adverts in your spam? Half of those companies are based in Utah. Ya know all the data-mining goofiness going on? Those ding-dongs are ex-Novell clowns looking to cash in.
Basically, if anyone can go before a judge and say that "Law X interferes with my right to potentially screw suckers out of their idiot cash", then that judge will slam that law into the ground. It's like they take the nasty edge of libertarianism in commerce but forget the rights of the individual privacy that go along with it.
davejenkins.com |
By putting spyware on the computer, they are in effect breaking and entering into your property. This is NOT a free speech issue, any more than someone spray painting on the side of your house is free speech. It is tresspassing.
Rhymes that keep their secrets will unfold behind the clouds.There upon the rainbow is the answer to a neverending story
In response to:
I am not sure we have any such right really. Privacy is not a consitutional right. Laws have been passed to protect our privacy in certain situations and that is good. But there is nothing that makes our privacy an irrevocable right that would extend beyond what has been legislated. Utah did the right thing by passing this law since it strengthens individual privacy. The courts however should hear the case if free speech is at stake, which I doubt it is since most spyware doesn't talk to you or express itself cause that would reveal that it was there. So I think the legality issues need to play out, but I think we should all watch our tone since ignorance is a dangerous thing...
Where in the first ammendment does it say you shall have the right install software to spy on other people and ransack their private information
meridian at tha.net
I don't understand how these spyware/adware companies stay in business! I mean, who is going to buy stuff through pop-up ads...oh wait -- idiots.
All it ultimately end up doing is creating problems for people in IT because of end users who are too dumb to not click 'Yes' on dialogue boxes telling them to install software that they "need".
Two freaks, no foes. It takes absolutely nothing to make some people angry.
Excuse me, but please show me in the courts or current laws where this is a trespassing issue. Wishing it was against the law does not make it so. Get off your high horse and do something about it and stop whining.
So they have the right to infect my computer with crap I don't want? That's a right?
Sod off, all we've been getting lately is losses to our privacy. First it's legal to have to give up information to a police officer even if they don't have a reason to get it and now people I don't know can send crap onto my computer.
Remember, if you try to find out what WhenU's spyware is doing on your computer, WhenU can sue you for breaching their copyright/patent/encryption/whateverthehelltheyfel like on the basis that the transmissions were encrypted, or that their program is protected!
OK huge exaggeration, but remember that WhenU is essentially trying to argue that you have less rights than they do over your own computer. This is the tenent of DCMA supporters. Users cannot be trusted with what they do on their computers, ergo we must administer their PCs for them. WhenU simply extends this to actions you take browsing the web.
Acts like the DCMA have taken away a huge number of rights from computer users, so don't be too surprised if WhenU win the right to, basically, remotely administer your PC by force. As long as they get government backing and/or say that spyware fights terrorism, they might very well succeed.
May the Maths Be with you!
What about our rights not to have to deal with this scumware?
What about our rights not to have to hear hate speech!
What about our rights not to have to see minorities in the same store as us!
Your right to be "left alone" just doesn't exist. Just stop downloading software. It's not hard.
int func(int a);
func((b += 3, b));
I service PCs for a living and this spyware shit is really paying the bills. It's great that I get more work but you feel dirty like you are having to work on a sewer line.
I'm glad I have the work but also dislike having the need to do the work. I think alot of people of turning away from the internet because of all this spyware crap.
Slashdot, home of supporters of free software, free music, and free speech.Except for Moderators that disagree with you.
Is that when the software crashes or goes haywire it's hard to tell what is causing it.
Isn't free speech limited to things that don't cause damage?
This stuff has the potential to cause damage. I've seen this malware cause systems not to boot and people to lose data. That is criminal if you ask me and they should be charged much less stopped.
Der Tod ist der einzige Weg hier raus!
But seriously, why can't they be sued for cybercrime? If installing software without permission is perfectly legal, I have some keylogging software I would like to put on my banks PC's. I wouldn't argue privacy, I would argue the fact that they are putting software on your computer without your knowledge, that may cause problems in your system critical applications such as porn.
actually I would think that by putting your computer on to the public internet kind of kills your right to privacy. Or something.
Why do companies have rights the same as people have rights? It seems odd to me that companies aren't punished like people, but they want to be treated like people. I personally would love to see a corporate death sentence. If your products kill people and someone in the company knew it, the company should be instantly disolved.
Personally, I think the US needs a corporate bill of rights, and those rights need to be seriously limited compared to my rights. Any first amendment rights should end where personal irritation begins.
I hate spyware as much as the next guy, so what do I do? I DON'T INSTALL IT!!! Even if the means, changing OSes.
Actually, you have to consent to install their software. Its the "I agree" button at the bottom of the 2000-word license that you carefully read. Spyware would be putting it on your computer by using an exploit.
As for free speech, their claim is that delivering context-based ads is speech, which seems kind of a stretch. I guess they must mean "free as in beer".
When-U isn't claiming it is their speech that is being stopped (well legally, not literally), they are claiming their right to advertise is being stopped.
This is what When-U said in the article from the previous post, which God knows would be impossible for almost all of slashdot to read (...wait they expect us to read THIS article AND the one before!?)
"While protecting the privacy of computer users is an important objective, the act does little or nothing to achieve it," the suit states. "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. The state of Utah does not have a valid interest in regulating a company like WhenU, nor, given the nature of the Internet, can it promulgate such regulations without impermissibly burdening interstate commerce."
IMHO, I believe the U.S. Government needs to get involved with shutting down these spy- and mal-ware companies due to National Security. Having worked as a contractor in military facilities, every Windows-based system attached to the internet I've worked on in those facilities, has been loaded with spy-ware. And I'm not talking about military-sanctioned keystroke loggers and system management tools.
I've never been comfortable working with unclassified (but potentially sensitive) data on a system that I know has spy-ware on it. It wouldn't be difficult for someone to collect sensitive data from those machines with spy- or mal-ware. A little side note here: it's possible to use information from unclassified documents to determine classified information.
Regardless of whether the system is military, government, or your own personal PC, I see spy- and mal-ware as a form of trespassing. Someone sneaking software onto your PC is no different than someone breaking into your house and stealing your drivers license, social security card, and other personal information. What these companies do has nothing to do with free speech.
If "disco" means "I learn" in Latin, does "discothèque" mean "I learn technology"?
In exactly the same way that leaving your house opens you right up for stalking.
I'm probably going to be modded WAY down for this
I cannot 100% disagree with their position. If someone is foolish enough to click through the agreement and installs spyware, as repulsive as it is, who do they really have to blame except themselves? As long as they don't act like a virus and stealth install along with another program as some programs have been known to do, I don't see how you can complain. Basically, as long as they agree, they agreed. Are you going to sue MS for typing "format c:" and then losing your system?
I should mention that Hotbar is fresh in my memory from having to step my dad remotely through the painful removal process (no network access thanks to hotbar, sort of ironic;). However, the fact that is is painful, or even if it could not be removed at all, is not cause for legislation. Otherwise, I'd like MS to be the first victim. Ever try to uninstall an IE hotfix that causes problems? How about that "Outlook security fix"? Can't see your JPGs anymore? Tough. So, while I agree that Spyware sucks rocks, I don't think Utah's legislation is very well thought out or even correct.
I think a better law would actually address personal privacy. The more I think about it, the more I think I like the EU's privacy laws, and perhaps the US should step up to that level of privacy protection. (Be hell on advertisers, but who really gives a sh!t about them anyways?)
The cesspool just got a check and balance.
The first amendment protects the right to SPEAK; nowhere does it say that one has a right to be HEARD.
Spyware is installed without the users knowledge and forces said user to see speech that they may deem offensive or in some cases vulgar.
The judge needs to brush up.
Has anyone done any reverse engineering of any of this spyware stuff? I mean, I would love to run a program that spoke gator.com's protocols and connected to their servers, reported endless amounts of bogus data to pollute and help render worthless all of their covertly gathered data that they value so much. Seems that this could be the only way to fight back.
I see it this way. (Note I did not RTFA) You can go to the town hall or square, or even my curb, and scream to the high heavens about anything you want. But the second you step onto my property I have the right to arrest you. It is not a public place and thus your right to free speech is gone.
I see the "information" space the same way. It is fine for you to post to public forums whatever you want to post to them. You can advertise your penis enlarger wherever you want, but when you start espousing your bullshit on my property I am well within my rights to call the cops, or tell you to stop, enact a law, etc.
I tried for 5 years to come up with a clever sig...only to realize that I am not clever.
If I walk up to some woman on the street, stand beside her and start digging quietly through her purse, making notes of what stores she's shopped at, her telephone number, her address...
Then I go visit her house, quietly walk in and make more notes about her life, use her phone to call it in to my associates...
I'd be arrested for so many violations of the law it wouldn't be funny. So why the hell is this tolerated in the virtual world?
It says "a judge in Utah", not the Supreme Court or anything...hell, not even the state SC.
Please don't blather about precedent, this shit won't stand in the court of a judge that can read and write English. Mountains of Molehills. Don't worry and quit installing every little piece of fluffy shit that comes down the pipe.
NO. You don't neeeeed Kazzaaahahaa (or any of the other 80 p2p with fucking stupid names). Use trusted torrents.
NO. You don't neeeeed gator. Fucking play some memory games or something. Use Firefox.
You know the list goes on and on, but this is so retarded that i can't write anymore. This will blow over and be forgotten news of yesterday before you know it.
They don't put anything on your PC, you put it there. Otherwise, they would be listed as a virus (your personal opinions aside, they do not technically qualify as a computer virus).
The cesspool just got a check and balance.
What about our rights not to have to deal with this scumware?"
I think I missed that clause in the bill of rights.
Of course, I missed the clause that guarantees me clean air too, but states still pass non smoking laws.
Probably both spyware laws and smoking laws are good, in my mind. However, has anyone actually verified that the company challenging this law, is actually one of the publishers of this stupid, malicous crap that makes my windoze PC run so horribly? Perhaps there objection is that they AREN'T the spyware we all know and hate, yet the law includes them too due to the wording of the law. There are a lot of things I consider as annoying as the spyware we all think of, that I might agree to install to be able to use a piece of software. (Like, like it or not, the crap that comes with Kazaa).
BUT, terrorists are terrorists and spyware is spyware! Lets bomb everything.
Easy guys, I put my pants on one leg at a time. The difference is after I put on my pants I make gold records!
I for one am thrilled to find that our first amendment protections are so strong. I am sure, given this kind of brave judicial scrutiny, that the DMCA and PATRIOT acts will quickly receive the same treatment.
Want to Know How to Cheat the GPL? Read On!
Hmm, MS software has more than once been proven to cause large amounts of loss. Some people would even go so far as to call it malware. After all, what's the purpose of the messenger service being on by default? What's the purpose of sharing the root drive by default?
The cesspool just got a check and balance.
are the only ones that can really sue b/c the burden ($) is on them. I think eventually they will be able to claim SPAM is a form of Denial-Of-Service (DOS) attack. But, the real success must come from the companies paying for the ads. Nefarious people will always seek to make easy money. They will go to less restrictive countries, which will always exist. They will install trojans on unpatched machines. They will always be one step ahead of the law anyway. I believe that you have to target the companies who create the products that are sent out in these ads. They know what their money is being spent on and it should be easy to trace...and they probably are easier to control through the legal system.
This isn't the same as walking around your neighborhood. When you surf the web, you still have an expectation of privacy. If you download something and click "yes" to installing spyware, then your expection is gone. However, if leaving your computer connected without a firewall gets you a virus which then downloads and installs spyware without your concent, then you have a right to call "shananagans" on the people who designed their software to violate your right of privacy. I wouldn't read into this news article too much. All it's about is a judge simply wants to take the time to decide if this law is unjust. Lawmakers make the laws, and judges decide if they're constitutional (in a broad sense).
A bit of background information. I'm a computer tech that deals with the general public. Despite keeping my job alive, I really do hate spyware. This software causes a fair-sized chunk of my customers' problems, and it gets repetitive to keep having to uninstall it. That being said, I think we have to look at the bigger picture.
Spyware isn't some kind of magic software that spontaneously appears. Admittedly, it can be a bit deceptive, but still prompts you for an installer. The problem is that people install software blindly without considering the outcome of their actions. If a perfect stranger, without identifying himself as an employee from a company you knew about, showed up at your house asking to poke around on your computer for a while, what would you do? You would slam the door on his face, and make a mental note: "No, I do not trust content from the Gator company"
Sorry, but clicking on a button isn't legally binding. EULAs have no legal basis whatsoever.
Granted, no spyware company is going to pay attention to such things, but it might be useful if you participate in a class-action claim against such a company for installing damaging software on your system without your permission.
Exactly what constitutional amendment does "the right not to have to deal with this scumware" fall under? People talk about "rights" all the time without even realizing what are, and what are not protected-rights. For example, the "right" to education, and the "right" to healthcare do not exist, except that you are allowed to pursue these things freely without direct inhibition by your fellowman.
I support the injunction, only because our [b]truly[/b] protected right to free speech are being acknowledged. Afterwards I hope they beat the snot out of those malicious spyware companies, but that's beside the point.
Corporations: your universal scapegoat for all society's ills.
I would say that their 'right to free speech' concerning their right to place data on my hard drive is the same confused mis-representation of the 1st Amendment as thinking that someone's free speech means that I have to listen to them.
Free Speech does NOT mean:
1. I have to listen
2. You get free use of any communications system.
3. You can force people to pay attention to you.
4. If I own a communications system or freq band that I should let eveyone with an opposing opinion spend the same amount of time talking/communicating as I do.
5. I am not responsible for the consequences of the things I said.
Free speech does mean that:
1. I can say what I want, when I want.
2. If I pay for a system, it's mine, and I can use it for my free speech.
3. Someone else can tell me what to say, but I don't have to say it.
www.facebook.com/DareDefendOurRights
www.fairtax.org
your Bonzi buddy just left droppings on my WindowsXP virtual lawn (standard background). Violators will be SHOT!
But I am also a very strong proponent of my right not to provide the venue for speech I don't want. It should be that extremely simple. My computer is my property and, as others have pointed out, another party placing something there without my permission is trespassing.
"Do the Right Thing. It will gratify some people and astound the rest." - Mark Twain
"Do the Right Thing. It will gratify some people and astound the rest." - Mark Twain
How about third amendment? Right against unreasonable search and seizure...normally applicable to physical search by the police...but what about "seizure" of personal information without permission...that's theft. Utah judges are bullshit. I know the 3rd amendment is intended for the government, but maybe it ought to be considered extensible in this circumstance? Actually, I'm surprised no-one has brought up harassment either (that I've heard of thus far).
-- Tim
Asst. Mger - Software Team, CSU College of Business
You DO have a right to privacy. Article 11, Section 2 of the American Convention on human rights specifically:
/dotters needed a civics lesson. I know that the entire country needs both 5th grade social studies repeated, so they can learn what "freedom" is (it isn't being free to do whatever you're told, sorry Ass-croft) and driving lessons.
2.No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.
That means that spyware is abusing my rights. It interferes with my computer, which interferes with my correspondence, since the primary function of any computer is telecommunications.
Case closed.
I didn't think that
When WhenU first started out and it was Avi + a C coder, he tried to hire me. I met Avi and their senior software architect and couldn't get them to tell me exactly what their "revolutionary spin on advertising" was. They wanted to offer me money to join the company, but absolutely wouldn't go into detail about what they did or what they wanted me to do for them (other than write code). I blew them off after the meeting. I'm still surprised that they even got off the ground with such a slimy business model.
Hey, I never clicked on any license agreement. None of the warez that I downloaded even had one. The other day, this crack I ran had a spyware attached to it. I never clicked "agree" to anything. That's totally unfair!
TODO: come up with a clever sig
The U.S. signed it in 1977, but its never been ratified.
Sometimes I really hate Congress.
the major advances in civilization are processes which all but wreck the societies in which they occur - A.N. White
WhenU click upon a link
Makes no difference what you think
WhenU click upon our link
Your base are belong to us.
You were 80% angel, 10% demon. The rest was hard to explain. - Over The Rhine
"Math in a song is good."-Linford
Sorry, but it is. Anything intended as a signature is. (Passed sometime during the Clinton administration IIRC. Something with "Digital Signature" in the title)
Only in Utah would the judicial system be crazy enough to allow two meritless suits like this one and a certain other company to go forward.
Striking fear in the authors of godawful fanfiction, I am here, appearing in darkness, Tuxedo Jack!
Yes, but somewhere in there is a notice that they are doing so. It's more like someone breaking into your house after leaving a post-it note on your porch warning you of it ahead of time.
-----
Sorry, I'm only a 1336 h4x0r.
I thought companies/corporations didn't necessarily have the same rights as individuals. I read somewhere that free speech didn't apply to companies or corporations, as they were set to different standards. If that's the case, shouldn't this case have been thrown out of court on those grounds?
As an aside, what's with all the bad news coming out of Utah? First the whole SCO thing, then Orrin Hatch's corruption, now this?
True or not I don't know for certain but I read recently that in North Korea houses have a built in radio that broadcasts State propaganda, and that while it can be turned down, it cannot be turned off. Whereas under Capitalism some judges think that companies should be allowed to try and make you receive their propaganda, and that while the instructed may be able to stop it the majority can't....but of course that's completely different.
Panurge has posted for the last time. Thanks for the positive moderations.
As I'm sure others have said in the past, ultimately the best way to eradicate spyware is to punish the companies that benefit from it in the marketplace. If we as consumers simply refuse to patronize companies that use such distasteful marketing methods, spyware would just shrivel up. Those of us who are knowledgable should spread the word and make those paying the spyware makers regret it.
Spyware, like spam, fluorishes because there is money to be made. There's no room in our capitalist system for morals, privacy, or common courtesy. But if lacking these starts to hurt in the pocketbook, then we'll see some progress.
To the making of books there is no end, so let's get started
Have some magnetic signs made up advertizing the local adult bookstore. Next time the judge stops at a stopsign, run up and slap the sign on the side. For bonus points, figure out somewhere that he won't notice it for a while; perhaps on the rear passenger door, he might not see it.
To simulate the trouble it can be to remove the crap from your system, slather some superglue on the backside before doing this, so that it'll be expensive and time consuming to remove and will cause damage that will also be expensive to fix.
I see NO difference between this and some of the more obnoxious spyware lately; they're both hijacking my property without my knowledge or consent in order to promote their own business interests.
I'm spending more and more time cleaning spyware at work. It invades computers then I have to get rid of it. I have a laptop someone just brought in that's filty with the stuff. I spent several hours at a friends house last night cleaning her PC. It's time to start sending bills to Spyware companies for these cleaning services. In fact, as I sit here, I believe that's what I'm going to do. I'll send invoices to these firms, then take them to small claims court when they don't pay. Who's with me?
So what's there to stop ISPs from halting this crap on the DNS level by causing WhenU.com's domain to resolve to localhost? At the very least, that shou.d stem the implementation on random computers for it.
This sig no verb.
If you go to http://www.spywareinfo.com/newsletter/archives/040 4/24.php and read what Mark Bohannon of the Software & Information Association said at the FTC workshop on spyware, you might be enraged and want to smash & break things.
. pdf you can see that he is a player despite his neo-nazi software views.
He said he does not believe consumers should have a specific legal right to uninstall software from their PC. This was said in the context of software which aggressively resists being removed.
One is tempted to discount this comment as just something stupid from a flunky, but from his bio at http://www.siia.net/press/staff/bohannon/bohannon
Keep an eye out for this guy. Don't let him near your daughter....or your pc
Afterall, nobody's physically intruding on your property or causing physical damage right? If they create an "electronic trespassing" law, they'd have to make all sorts of other "electronic" laws as well. And heaven knows we have enough laws as it is!
"Ask not what your country can do for you." --John F. Kennedy
Santa Clara Country v. Southern Pacific Railroad
Thats the little court case that did it.
Ok, but how would you grant permission for any software to be installed on your system. For example, what prevents you from suing microsoft for the installation of word on your windows partition.
"Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
Does a person have a first amendment right to post bills all over your house? Does a person have a right to dump notices all over your front lawn?
No?
Then what right does anyone have to do the same thing electronically?
Proverbs 21:19
It must be the right of WhenU (in the form of their software) to talk to WhenU (in the form of their master server) about you (the fool who doesn't RTF Licence Agreement)...
# cat
Damn, my RAM is full of llamas.
Aren't they just soooo cute?
Yes, because everyone carefully reads through the licence, and no-one would be stupid enough to click "Yes" without reading it first.
If one day I write a piece of freeware, I think I'll put a line in the licence saying:
...and see if anyone notices!That's why I think that a person or company should produce the human-readable and compilable source code for every program they wish to copyright. If they wish society to protect their right to something that is not physically tangible, they should be able to produce on demand precisely what it is we're protecting. This way, everyone with an interest and aptitude in such things can check out the source and see if there are any nasty surprises waiting for them, and any malicious (or merely stupid) code can be shown to the world.
Of course, companies would complain that this would allow others to steal their source code, but in fact any such "theft" would be shown to the world the moment the thief tried to copyright it. What it would actually do is prevent the theft of intellectual property from individual programmers who are unable to secure their source from others with less programming ability and fewer scruples.
Actually, its called the Millennium Digital Commerce Act of 2000.
See it HERE.
Story when it happened HERE.
Bored? Why not join a decent mess
The difference is one is a physical manifestation, the other is not.
They have just as much "right" to anything as I do to walk up to them point blank and shoot them in the face.
Truth be told, these people DO deserve to die.
I see two cases here:
1) If the malware/spyware does not tell you what it does, then you have a fraud case. No need for additional laws here.
2) If the malware/spyware does tell you, and you do not pay attention to the agreement, then it is the users fault.
The problem is with #2. Is it realistic to expect users to read these long contracts? Maybe, maybe not. Since normal everyday software now includes EULAs, people are used to ignoring them. THIS is what needs to be decided -- is it legal to bury this information in a multi-page EULA?
But I have a quick solution! Users should refuse to install applications that have EULAs. If every mom and pop called Microsoft or Dell or HP or Symantec when they saw an EULA, EULAs would be gone. *poof*
Unfortunately, this is where the consumers become sheep. They don't like malware, but they don't want to stand up to Microsoft either. So they have dug themselves a hole, and now they want the government to dig them out.
Grandparent was arguing that it shouldn't matter.
There are definite trespassing laws for you transgressing on my living room when I have tried to kick you out. PCs yet to have such trespassing laws set upon them.
This sig has absolutely no significance and serves only to take up screen space and waste the time of the reader.
One problem with this argument is that sometimes users are asked to accept a license agreement that 1) they've never seen ("click here to view our license agreement, then press yes to continue"), 2) they cannot view (because the "click here" link is defective). In court two weeks ago, I showed the judge a couple videos of various defective WhenU license agreements, which don't display even when users specifically request them.
See my report from the hearing, case documents.
Ben Edelman
I guess now i don't feel so bad about spying on my neighbors now.
Obviously everyone on Slashdot (that actually runs Windows and uses IE) is smart enough to click on the "No" button when they're asked if they want to install Gator, WhenU's software, or any other similar program. We can all agree that people should just not agree to install it we they are asked, and WhenU can say that they provide the option, but we also all know that this mindset isn't going to make the problem go away, because a company like that survives by profiting from someone else's ignorance.
It is just difficult to accept the fact that companies can get money from trashing my grandma's computer just because she's already intimidated by computers and believes whatever the all-powerful monitor tells her. They profit off of my teenage cousin, telling him "sure you can download lots of music without paying for it," then eventually make his computer unusable unless he formats/reinstalls.
There are hundreds of posts on Slashdot about how this is all Windows' fault, or it's all the fault of stupid users, but there are companies out there built from the ground up with the sole purpose of making money off of people that really don't know any better, and don't know how to learn what not to do. Since they're not targeting Slashdot users, it doesn't do any good for us to say "We're too smart to fall for that, so it's not our problem." It's the problem of Slashdot users when our friends and relatives ask us to help them clean up their computers. It's our problem when all we do at work is fight malware. It's our problem when crap like this gives computers and the Internet a bad reputation. Maybe this law isn't enough to get it done, but if it's not, we need some way to stop these companies.
Maybe I should change the subj. to flamebait, but here goes.
I guess it's one of the things we have to endure for a "free" internet. If people are stupid enough to click on a link to install some of these progs, then they have to put up with it. Maybe they should surf fewer pr0n sites, too.
Yes, I'm being ignorant, but I'll always look for OSes and browsers that are less prone to becoming burdened with all this adware and spyware. As long as there are a lot of sheep out there, the rest of us may be a little less visible to the prevailing radar.
I think most of us here can figure out how to remove the bulk of these progs, and we can still do so until they make it illegal for us to maintain cleaner machines than the average user. Personally, I see it as one of the responsibilities of owning and maintaining hardware.
Unfortunately, I see a day when it may be pointless to use the internet in its present form any longer.
... is terminated where my nose begins.
This has nothing to do with free speech. It has everything to do with curtilage. Namely, I have it. WhenU doesn't.
I don't give a damn if they pop a box explaining what they do, nor do I care if they don't. The fact is this - the end user has no authority over my box. It's mine, and the end user has no right to consent to anything. Permission to sit at a keyboard does not imply some magical "proxy" relationship.
Period.
help me i've cloned myself and can't remember which one I am
You actually have to go places no end user likes to go, into the advanced options and turn on stuff like prompt to run scripts, and then when you visit some cute joke site, you have to manually block all the scripts from running.
There is no licence or click ok to install option.
What about the right to silence (fifth amendment?), and the right not to "incriminate" yourself. After all if this spyware is speaking, what is it speaking but stuff you would normally be silent about?
At least you lot in the USA have a bill of rights. We don't in Australia.
-- it must be true, it's on the internet.
Then send him emails detailing his computer use. He has already said you have the right. Just include the little devil in an email. After you have sent him his "report", have it timed to pop-up dialog boxes reminding him of his decision.
Once again the subject comes up and out of the 100+ comments so far, nothing is mentioned about spy- and mal-ware taking advantage of the basic client/server technology standard that drives the WWW. Very little is mentioned as to the individual actions of the "victim" being part of the problem. As for geekdom being the last refuge of the "agressive individualist"? Many certainly sound like sheeple on this particular topic.
The answer is right there in the technology standard itself. If there is a technology "loophole" that jag-offs are exploiting, close the loophole. If the session based relationship between the web server and the web client leaves open the door for the web server operator to make money with adverts and "session access", it's his web server and no one forced you to connect to the server, vote with your feet.
Many here are technologists of one stripe or other, so, solve the problem and quit yer whining about "rights". In the context of objective circumstances, the issue of rights are misplaced since the right to address this particular problem lays largely unused, IMHO.
Mod me troll, if you must, I can't help it.
The problem is that there are too many people (old and young alike) who are intimidated by their computers, are not familiar enough with the crap that happens when you click the yes button. To someone who isn't familiar with the problem of spyware, the messages to install it can often look like it's something the computer needs you to do in order for it to work right. Maybe that sounds stupid, but the everyday computer user isn't on the same level (meaning they don't understand computers or think about them in the same way) as any Slasdhot reader. Of course they're sheep. They're using technology that they don't understand. Some of us got the hang of this Internet thing pretty quick, but some people have gone 10 years using the Internet without figuring out what's good and bad out there. Even if they read the EULA, they wouldn't know what to make of it. It's not because they're stupid, it's because they're not computer people. Education can help, but part of the problem is the entire computer/Internet paradigm is setup to the advantage of the geeks, and to allow people to take advantage of the non-computer people.
Excuse me?
Spyware vendors generally attempt to deceive users into installing their products using a variety of ruses that would be unlikely to withstand the scrutiny of a civil court. Most spyware scams rest on the twin pillars of egregiously onerous "fine print" in legally specious (and generally unenforceable) "click-wrap" licenses (and that's if they didn't just sneak in without asking at all), and false advertising.
A good judge would hold with common sense - that allowing spyware is both practically speaking a bad idea (since, just like spam did for email, once we allow it, it will render computers unusable as it scales upwards) and a classic scam, from the point of view of common law, which still holds onto antiquated ideas about contracts needing the informed consent of both parties, and the reasonable expectations of a consumer.
If I knock on your door and say "flowers" and then when you open it burst inside and start hanging advertisements and planting hidden listening devices, this is not a constitionally protected activity any more than selling snake oil or engaging in a protection racket.
This is leaving aside the many privacy protecetions which have easily trumped "first amendment" protections in the past - the many enshrined confidences of the lawyer, the doctor, and even the video rental store. I would suggest that the more outrageous the conduct of the software (i.e. spyware) the more difficult it would be to demonstrate that the user had engaged it willingly... to the point that for many kinds of conduct, we simply don't permit it at all, out of common sense or common decency - hence, our rules against usury (i.e. outrageous interest rates) and gambling - classic ways to prey on the innocent and ignorant.... or even just allowing the phone company to sell your detailed phone records.
Of course, if you're such a laissez faire first amendment purist, I'm sure you support pornography on saturday morning TV?
Want to Know How to Cheat the GPL? Read On!
That's an excellent idea! Data pollution of gator and other spyware would be excellent; they would either have to change their format, obsoleteing thousands of infested PCs, or just live with bogus data.
Next, let's imagine a lawsuit between WhenU and its ilk against AdAware or SpyBot and their ilk. Or how about getting RegEdit declared a 'circumvention tool'.
That second example is meant to be silly, but now imagine 'HKEY_DMCA_...' and keep in mind that scanners are now recognizing currency. It's not hard to think that there will be a new RegEdit that refuses to display or change HKEY_DMCA... values, and the old RegEdit does become a circumvention tool.
The living have better things to do than to continue hating the dead.
So when does their 'right to free speech' end and my right to be left alone on my personal computer, in my private residence, begin?
Obviously since they are a Corporation and you are *only* an individual, their rights trump yours any day now that it's the 21st century. You must not have read the Constitution recently... since it now reads: We the Corporations of the United States, in order to form a more profitable union...
Death to Liberal Judges!!!
Your right to free speech does not require anyone to listen to you.
Your right to free speech does not give you the right to enter my house and bother me.
Therefore, nor does it give you the right to install malware on my PC.
Then again, I don't live in the USA, so tell me. Are you required to listen to every nut that talks to you on the street?
So, why are we suprised that soccer mom's computers are full of Spyware?
Between junior's net games and husband's porn I'm suprised any computers are still working today.
I run ad-aware and SpybotSD every two weeks out of habit.
I'm suprised if I have three pieces of Spyware. Usually, if any, I'll have one or two. It's not that hard to avoid folks (yes, even with Windows.)
Spyware, like durnk driving, is a problem for idiots. I can handle having a few pieces of spyware that are caught relatively quickly in order to never have to sign 18 government documents to post a webpage.
It's the relative calm before the storm folks and we need to keep the storm OUT...either the internet will be UNREGULATED or the US government will have complete control over what its citizens view.
Posture and cry 'Constitution' all you want, but I will not be held responsible for setting the regulatory precedent.
Perhaps what we really need here is EULA reform. When I see a click-through EULA, I TRY to do one of three things:
1: Trust it based on prior reading, trust of issuers, or trust of others who trust this license.
2: Read the silly thing through.
3: Decline.
Every now and then I do the bad thing, skim and accept. But I try not to.
But realistically, these are thousands of words of not-normal English. (or other appropriate colloquial language) They are akin to contract law, and no company exec will sign a contract without a company lawyer reading it through, first. Do we all really need lawyers in order to install software on our PCs?
I would propose a few simple ideas. (Pick one or more.) For one, imagine that each clause require a 5-word simple summary, or the word 'COMPLEX' if it can't be summarized in 5 words. Scan for things like 'PandaSoft owns, you lease', 'One computer only', 'Not responsible for damage', and the like. Watch out for 'Data collection', 'Deactivation', and similar. Keep a really close eye out for 'COMPLEX'. Another idea might be to get the industry to condense to a few basic licenses or possibly a few dozen clauses. The idea is for people to understand licenses without taking a course on Law.
The living have better things to do than to continue hating the dead.
Why is it that Utah's main export is annoyance?
You have the SCO scandal that has burrowed under the skin of all of those working for a truly great an noble cause.
Now you have this judge allowing some scumbag company allowing spyware to continue to infect and annoy unsuspecting users. You might put the onus on the users of the computers but when my 6 year old son is just trying to play a game on cartoonnetwork.com and unsuspectingly clicks on a pop up that installs software on the family computer, I just can't blame the user.
I've spent hours cleaning up the computers of friends and family members and I've reached a boiling point.
And as if SCO and spyware weren't enough, Utah seems to be a hotbed of multi-market scams. Take Nu Skin for instance. What is it about Utah that makes it such a hotbed for these kind of annoying scams?
Can we talk? I mean have a heart to heart? I F*CKING HATE these b*stards. There, I've said it - well, mostly.
Here's a 'company' that makes a business plan out of finding every hole in I.E. it can and exploiting it.
"Just stop downloading software.." Yeah! I WISH I COULD!!! Last week, one of my users got this lovely trojan that no anti-virus software, anti-spyware software, or usual methods could remove. It actually took a piece of software called, "CSW Trojan Remover" to get rid of it.
According to the removal software, this version (there are at least 26 different ones now) takes advantage of a buffer overflow in the MS JVM. Visit an infected web page and *BLAMMO* - you're a new cool web searcher! Yet another reason to start using Mozilla...
Rather than going after scumware vendors who at least ask permission, I'd like to see this sort of thing pursued with more vigillence.
"...Well, there's egg and bacon; egg sausage and bacon; egg and spam; egg bacon and spam; egg bacon sausage and spam..."
Someone needs to send a spyware to these spyware companies and sue them if they don't allow it...
Sometimes one pays most for the things one gets for nothing. -- Albert Einstein
Virus or trojan both should be illegal.
I somewhat agree with the judge. On one hand, installing software on your computer without informing the user is worm/virus material and is ALREADY illegal. But stupid users installing Kazaa deserve what they get. Lets increase the selection pressure on technological darwinism. So instead of making a new law for spyware lets just persecute these assholes under existing virus law.
The GeekNights podcast is going strong. Listen!
They also ruled for segregation, was that in the Constitution?
Mathematics is made of 50 percent formulas, 50 percent proofs, and 50 percent imagination.
Their right to swing their fists ends at my nose. Their right to express themselves ends at my "NOs". Utah, land of SCO, Orrin Hatch, and WhenU invasions. Why do they hate America?
--
make install -not war
I would think that spywayre searching your system and seizing resources would be illegal also.
Either way the judge is probably enjoying his fat paycheck from the advertiers.
Also people not everything has spyware built into it. Just install software that does not use it. And if you're whining that you have spyware in any of these p2p apps 90% of the time you're not using it for legal purposes anyways so why are you complaining.
IANAL, but I do read judicial opinions.
This should not be difficult for the court to decide IMO, and the delay for the law is probably procedural.
Here is the issue. Freedom of Speech is defined by the courts as Freedom of Expression. Basically practical elements of speech might not be protected but the expressive elements would be. This is where DeCSS has lost its free speech battles in the courts in the US, and I would expect the spyware companies to lose on the same grounds.
Here are a few examples of expression which is regulated by the government and/or courts based on its practical value:
1) Advertising.
2) Slander
3) Product labeling
Now, it seems to me that the court will have little choice but to conclude that the states have the right to regulate spyware. Otherwise, I would think that maybe we can get the FTC to push for new labling requrements.
The problem, in my mind, is that usually the user has NO IDEA that these things are being installed. No communication means no expression. No expression means no freedom of speech.
LedgerSMB: Open source Accounting/ERP
Is this the same principle as yelling "Fire" in a movie theater?
The problem with the US constitutional right to free speech is that it doesn't say anything about a necessary symmetry - the right not to have to listen.
In the case of Spam, Spyware and other such intrusions, I have no problem with these people posting their spam and their spyware on websites, clearly labelled as what they are. In fact, I'd strongly uphold their rights to do so.
However, when I say that I don't want to listen to that stuff, I REALLY need a constitutionally protected right to not listen.
When someone stands on a soapbox and starts some political diatribe on a street corner, the constitution gives him the right to do so. Where is my right to cover my ears and walk the other way?
I don't think the intention was ever to give people the right to force others to listen to their speech...it's there to stop third parties from preventing a speaker from conveying information to a willing recipient.
www.sjbaker.org
What about our rights not to have to deal with this scumware?
This ruling does nothing to affect your right, you're still welcome to turn off your compuer.
Oh, but then you meant you want to operate your computer in the manner to which you're accustomed AND not deal with the "scumware".
Well that right is it's there with my right to eat for free at McDonalds every Wednesday: nonexistant.
Why do you people think you have such a right? You boot your computer and instruct it to install and run these programs (Yes, you do. If you didn't they wouldn't be run. Such is the nature of computers: it's just a hunk of metal doing what you tell it to and nothing else). You have no right to complain that your computer is doing what you tell it.
If you walk down the street handing people money you have no right to complain when people accept it. When you tell your computer to execute instructions from unauthenticated people over the internet you have no right to complain when it does.
WhenU filed suit in April asking for an injunction, and this judge has decided that their claim of abridging their First Amendment Rights has enough merit to issue the injunction. What about our rights not to have to deal with this scumware?
Amazing how we shift so fluidly from First Amendment absolutism to geek-made exceptions and balancing with other rights. Get it? The First Amendment is hard, both intellectually and substantively. No intuition or sense of justice can properly guide Justice's constructions of the words "no law" as applied to the vast range of First Amendment cases. And no intuition or sense of justice will not, on occasion, be reviled as we are offended and in other cases hurt by the practice of others under the First Amendment.
It certainly may be arguable whether there is a first amendment interest in publishing software, and as to the distinction between expression and conduct found therein. But as you formulate your knee-jerk responses, recognize that these rules must apply with equal force to all applications of the law and, in particular, to all applications of software.
In my view, there is adequate protection from Spyware under provisions of the various computer crime laws. I also think there is probably a sound "no first amendment implicated" argument to be made here.
But don't for a minute think that the analysis will begin, in any intelligent forum, along the lines of: "You claim First Amendment Rights? What about my _______ Rights?" That's just not the way it works, at least with the First Amendment.
I know, there are already some Anti-Spyware proxies out there, but... ..why not write a proxy that mangles the data before sending it out, anyway - that is, it is sending nicely formated random junk.
:-)
For the usual stuff like doubleclick it could for example generate nice, useless cookies with random ID's. For all the install-stuff it could just screw up the content a bit.
This would give those bastards the traffic they asked for but without the option to put it to commercial use
Look, this thing is totally safe! Built it myself, you know. You just press that button like this and then turn that lev
"and this judge has decided that their claim of abridging their First Amendment Rights has enough merit to issue the injunction. What about our rights not to have to deal with this scumware?"
It's amusing how people here are willing to ignore the constitution when convenient, put if a police officer asks for your name, sudenly the constitution is important again.
there are solutions too numerous to touch on to solve this kind of thing, why re-invent the wheel ? The kind of people who repeatedly get this and don't find a solution are the same kind who buy bridges in Oklahoma, and collect welfare by choice...
OK I might be a bit over the top on that but hyperbole has always been a strong suit of mine.
Prevent the install with a technical solution, WE CANNOT LEGISLATE MORALITY. All that does is ensure a cluster-fark of enormous proportions..
errr....umm...*whooosh* *whoosh* Is this thing on ?
Intent.
Can /. institute a new rule that every article about spyware has to include a disclaimer that most spyware installs itself w/o the user doing anything? And also that using MSIE and/or Windows doesn't consitute "doing something." A lot of people don't seem to understand these concepts.
For more info on WhenU.com you can e-mail them at information@whenumail.com. I am sure they look forward to hearing from you. They sound like at GREAT place to advertise. I am surprised slashdot and OSDN don't use them.
[/troll]Court granted treatment of corporations as persons with protected rights vs granted privilege *is* the root cause for all Governance issues facing the humans of our society and the stewardship of our environment
From the site:
http://reclaimdemocracy.org/personhood/
But corporate lawyers (acting as both attorneys and judges) subverted our Bill of Rights in the late 1800's by establishing the doctrine of "corporate personhood" -- the claim that corporations were intended to fully enjoy the legal status and protections created for human beings.
We believe that corporations are not persons and possess only the privileges we willfully grant them. Granting corporations the status of legal "persons" effectively rewrites the Constitution to serve corporate interests as though they were human interests. Ultimately, the doctrine of granting constitutional rights to corporations gives a thing illegitimate privilege and power that undermines our freedom and authority as citizens. While corporations are setting the agenda on issues in our Congress and courts, We the People are not; for we can never speak as loudly with our own voices as corporations can with the unlimited amplification of money.
-- Tom
Lets see... my CPU, my hard drive space, my electricity - what do my means have to do with their freedom of speech?
I mean, newspapers have the right to deny paid advertising if they feel it is innappropriate etc., even though this might infringe on the potential advertiser's freedom of speech. Clearly, the newspapers cannot be forced to use their facilities or equipment to facilitate someone else's freedom of speech - why should I be forced to use my computer to do so, and more so, why should I be forced to do so without compensation?
In conclusion, to adequately excercise my own freedom of speech, I'd just like to say that me thinks that this judge has a bad case of, to use the legal term, headus upus assus.
Understanding is a three edged sword. - Ambassador Kosh Naranek, Babylon 5
A better analogy would be a bunch of scruffy hoods coming and asking you if they could "paint" your house, and then you discovering later that they meant "tagging" while you meant "pastel yellow".
Don't blame me, I didn't vote for either of them!
A better solution would be to require companies to display a simplified licensing agreement (EULA), which non-lawyers can easily read and understand. Saying that all users should spend 10 minutes trying to reverse engineer the EULA is crazy!
Perhaps we should require EULAs to conform to the same privacy policy summary guidelines as the W3C's Platform for Privacy Preferences (P3P). This would give users a fighting chance to understand what the software is doing under the surface. Granted, the P3P stuff could use some enhancements. http://www.w3.org/P3P/
It's like those ads that drug companies run in magazines -- with a full page of fine print. Or like reading US tax forms. We need a Plain English (or language of your choice) summary of what the software claims to do.
I think some private companies tried to make a business out of summarizing overly-long EULAs -- but they probably went out of business (eg: Enonymous). Maybe a W3C P3P-type solution is the answer.
Recognise that?
Got time? Spend some of it coding or testing
Viewing the license on screen can be quite difficult, because WhenU places it in a window so small that viewing the whole thing requires 45 distinct presses of the page-down key. See WhenU License Agreement Is Forty Five Pages Long.
Ben Edelman
Ben Edelman
The argument that spyware is OK because users have given their consent is a load of BS. Who actually wants a barrage of pop-up ads? Vendors like WhenU typically distribute their software through pop-up windows that ask if users want to install some time/date function without mentioning a deluge of pop-up windows. I suspect most of WhenU's "clients," like me, inadvertently installed their software adware by hitting the return key. And as we all know, adware is damn near impossible to remove once installed. In New York state, a man can be charged with rape even if he is having consensual sex with a woman and she asks him to stop but he does not. The courts recognize the right of the woman to revoke her consent. Computer users deserve the same protection.
I've had shit installed on my computer simply by ENTERING THE WRONG URL IN THE ADDRESS BAR.
That's it. I typed one fuckin' letter wrong, pressed enter, and seconds later multiple programs were installed on my computer. Not only that but DLLs were loaded and set to automatically load on startup, making it a REAL PAIN to remove.
Actually, getting rid of one of the programs made my computer no longer boot, I'm guessing because it made itself considered a "required" component by the system. However I also consider the possibility that the program could easily do that as a result of noticing my attempt to remove it...
Both Gator and WhenU do it this way -- they don't need to collect any user information, it's all done "live". I'm not sure how flooding their servers will mess this up.
A better solution is to make companies display a simplified licensing agreement (EULA), which non-lawyers can easily read and understand. Saying that all users should spend 10 minutes trying to reverse engineer the EULA is crazy! I want a EULA that my dead Grandma (RIP) can understand.
Perhaps we should require EULAs to conform to the same privacy policy summary guidelines as the W3C's Platform for Privacy Preferences (P3P). This would give users a fighting chance to understand what the software is doing under the surface. Granted, the P3P stuff could use some enhancements.
It's like those ads that drug companies run in magazines -- with a full page of fine print. Or like reading US tax forms. We need a Plain English (or language of your choice) summary of what the software claims to do.
I think some private companies tried to make a business out of summarizing overly-long EULAs -- but they probably went out of business (eg: Enonymous). Maybe a W3C P3P-type solution is the answer.
It is akin to viral software activity.
It is synonymous to illegal wiretapping.
It is metaphoically videotaping through the window of someone else's house without their consent.
It IS property damage by legal definition.
The government should have stepped in long ago, and no new laws should be nessisary.
Why is it that this day in age the people "breaking" the laws are usually the most innocent (DeCSS, for example) and spyware companies, which basically manufacture information-mining trojans (riddled with security problems that allow viruses and worms on to systems, as well as more spyware) have a "viable business model"?
Is everyone holding office either paid off or stupid? Is it a conspiracy? Christ, I'm almost ready to give up on the whole thing. Selfish bastards are going to make technology unusable. Imagine how much more computing power a machine would have without spyware and spyware defense running on it? (Of course, that's a good thing for Linux and other Free Software, at the moment).
Makes me feel like this is some vast Microsoft/Intel conspiracy to get people to buy faster computers to be able to "handle" all of this at a reasonable speed. That's probably trolling, but think about it, WHY on EARTH would ANYONE allow a business to create software that:
- Is installed without consent
- Can cause damage to existing programs, configurations, and data
- Displays advertisements to an unknown audience, some of which may be pornographic
- Records personal information of an unknown nature for transmission to a 3rd party for resale
5 years ago, every single spyware author would be in JAIL. A ridiculous explination is the only one I can come up with that fits.I have an idea: let's take some spyware companies to court. Someone install AdAware or SpyBot or something and when you get spyware on your computer, take the company to court citing their spyware has cirrcumvented the mechanism used to protect your digitally copyrighted works which reside on your computer, a DMCA violation. It matters not if actual copyrighted data has been touched, you applied a digital protection method and this software attempted to cirrcumvent it. Not that I think the DMCA is a good law, but as long as we have it why not use it to our advantage? After all, laws are made to be exploited these days.
CAn'T CompreHend SARcaSm?
I don't know much about the software in question here, but I can tell you that CoolWebSearch is installed (sometimes) by a server exploiting a vulnerability in the Microsoft (Java) Virtual Machine to perform an automatic installation without the user's consent. It isn't listed anywhere as a virus because it doesn't propogate itself, it requires somebody to set up a web page with the specific intent of propogating it. This is obviously the kind of software this law is targetted at.
You are free to whine all you want about viruses or programs that exploit flaws in IE, but those are in the end red herrings. The issue involving this bill is that it also makes it illegal for a software developer and consumer to enter into a voluntary contract which involves 'adware' or 'spyware'.
Mathematics is made of 50 percent formulas, 50 percent proofs, and 50 percent imagination.
Yes, and apparently we need to use physical metaphor to get the point across to people like this. Symbolically they're the same thing. Stealing my time is the same as stealing my money or my stuff. Using my computer to spread spam is the same as using my car to shove a ad sign in people's faces around town.
Damn me. I missed that one.
-- Faust