Slashdot Mirror
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.)
Actually the courts have ruled in the past the 9th and 10th Amendment contain a right to privacy
Amendment IX:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
the major advances in civilization are processes which all but wreck the societies in which they occur - A.N. White
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."
Yes, ignorance is a dangerous thing. In this case, it's dangerous because you didn't know that the Supreme Court interpreted the 4th amendment protections against unlawful search and seizure as implying a right to privacy, so the idea is perfectly valid.
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!