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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.)
Their right to put software on your computer will last a lot longer than your rights as a private citizen as long as they spend more money on political parties than you do.
*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
This might be a troll, but...
They have a clearly delineated right to free speech. Protected in the courts, established in the Constitution.
You on the other hand have a _need_. A need to be left alone which is not privacy and is not protected (yet).
Yes, we'd all like to have the spammers and spywarers shot, drawn, quartered, and flayed, and maybe even in that order. However, until the laws and/or constitution is changed, please refrain from whining about your right.
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.
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));
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.
When you clicked "Yes", their right began.
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.
In exactly the same way that leaving your house opens you right up for stalking.
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.
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.
Rubbish. You are confusing the right to *be* happy with the right to pursue happiness. They were never intended to be the same thing at all.
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.
Laws against me killing fools like you infringe upon my 'right' to happiness. How does that fit in with your watertight legal reasoning?
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?
No one is forcing you to install WhenU's software.
And one can imagine customers who might knowingly and willingly install WhenU's software because they perceive a benefit to doing so: Google's toolbar might be considered spyware -- it sends every url you browse to Google; but you receive the benefit of getting Google's page rank for the url, and Google gets the benefit of seeing who is browsing where.
Now, if the software tells you honestly that it's sending information about you to its creators, or sending ads to you, you have a remedy that requires no law, no governmental action: you can decide to uninstall the software. If the software spies or spams you without telling you honestly that it's doing so, you have a remedy in the form of existing laws against fraud or the like -- or possibly new laws that more narrowly target deceptive software.
But none of these remedies require intruding on First amendment rights. So why do we need an overly-broad law that does?\
First Amendment (and many would argue, Second Amendment) rights are the cornerstone of all other rights: the First Amendment exists to guarantee that you can stand up, get together like minded citizens, and explain why you think the government is not doing the right thing (and the Second, to have the mens to resist tyrannical government, but let's no digress). Since without that right, all other rights can be trampled without anyone having a chance to speak up about it, it's very very important to make sure that right isn't infringed even a little bit.
So in order to preserve that right from tampering, we -- as free men -- have to also put up with things -- Ku Klux Klan rallies, spam, WhenU's software -- that we may detest. Because the cure is far worse than the disease. Once we let government say there exists a class of things that can't be talked about, we risk that class be extended or used as a precedent to stop people from pointing out when the Emperor has no clothes.
I'm sorry for the inconvenience, but I'll take WhenU's spam over some Ministry of Truth's deciding what can't be said, any day.
Opinions on the Twiddler2 hand-held keyboard?
So if I come in your living room and start shouting and then you try to kick me out, are my first amendment rights being violated? After all, you have no constitutional right to a quiet living room, just a desire.
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!
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"
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
Once we let government say there exists a class of things that can't be talked about, we risk that class be extended or used as a precedent to stop people from pointing out when the Emperor has no clothes.
You mean like the War on Drugs?
The system had the verbosity of HTML combined with all the readability of compiled assembly viewed as bitmap images
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
Google's toolbar might be considered spyware -- it sends every url you browse to Google; but you receive the benefit of getting Google's page rank for the url, and Google gets the benefit of seeing who is browsing where.
No it can't. Google is up front about what they do and when. Spyware, by definition, is not. It also tends not to warn you when it installs itself.
you can decide to uninstall the software.
Try to uninstall Gator sometime. Then try to uninstall that coolsearch disease from russia.
I'll take WhenU's spam over some Ministry of Truth's deciding what can't be said, any day.
And I will deny that WhenU has any right to any speech on my computer. It operates at my whim and for no other reason.
"We returned the General to El Salvador, or maybe Guatemala, it's difficult to tell from 10,000 feet"
What if having the adware would make me happy? What if I want the software and don't care if they give me advertisements? By making the software illegal you are infringing on my right to pursue Happiness.
Mathematics is made of 50 percent formulas, 50 percent proofs, and 50 percent imagination.
The question should be "how can a corporation have the same rights as an individual?". So can we expect to see A Corporation getting arrested and eventually jailed the next time a scandal is coming up? No? Because it's something different?
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
Except that's a crap argument. I own a house. I installed typical security measures on my house (doors with deadbolts & latch locks, security system). By your argument since I "installed the security system" and if someone else comes up and drills a hole through the top of my roof & installs a video feed & transmitter from my bedroom without my knowledge, it's my fault?
I think not. Spyware without some sort "agree to install" notice is more like breaking and entering, and hence is not protected under any sort of Constitutional amendment.
OTOH under current law if you clicked on "I Agree" during the software installation there's not much you can do about that. As an off-the-cuff reaction I'd say a law needs to be passed stating that before the click-through EULA there needs to be a dialog box containing a clear, concise statement in five sentences or less about exactly what kind of spyware is contained, however.
I could not aggree more. Making new laws forbidding things is very rarely the best course or action. All of you would be up in arms if there was a law against somthing you supported. Just because somthing is not popular does not mean it should be illegal. Open source software is not popular among the propriatary gang, and they ARE attacking the legality of the GPL. If one type of software that you incidently dont have to pay [money] for is banned, it may add fuel to that fire. There are two things that can get a law passed: corporations with lots of money(lobbyists) and mass public support. Banning free software has the support of lobbyists, and banning spyware has the support of the public. Either are possible, but neither should be done. If you actually are concerned about spyware anyone with half a brain can download ad-aware or spyware search and destroy and run it. Most people in fact do not care, or are oblivious to the fact that they have spyware, which is thier own fault. If it does pass its just a constitutionally questionable law to protect the stupid, and I for one think stupidity is protected too much. If they want to fight the problem in a much smarter way, they can just force spyware containing products to make it clear that they contain spyware. Its already a requirement to disclose ingrediants and nutritional information of food, why not force the contents of software to be clearly labeled?
Sorry to quibble, but the Google toolbar offers a clear option at install time to either use or not use the "spyware" component.
# cat
Damn, my RAM is full of llamas.
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
Speech for profit (advertising) is not protected by the first amendment. And especially not in your own home, on your machine, with your bandwidth being used. Also, you are correct, no one forces us to install this software. It does it itself. I'm sure there are people out there that use the features that bonzai buddy or anything have to offer, but do you think they searched and activly downloaded it? Joe and jane user were probably like "It just appeared one day, isn't that neat."... People who run around putting stickers on bus stops and street signs can be charged with vandalism. How is this different?
"Sic Semper Tyrannosaurus Rex."
Add it to your own personal hosts file. ISPs are not the place to filter such crap as this.
That's the abridged version, but the intent is as obvious as it is simple. The people who put the constitution together were worried that a government that suppresses free speech would become the same sort oppressive state they'd just fought a revolution to escape.
But notice this; while the constitution grants free speech, it does not guarantee that you will have an audience! The government can't (well, shouldn't, at least) stop free speech, but when someone says specifically and emphatically that they don't want to hear it, then the intrusive speech is an invasion of privacy.
As far as spyware goes, I think it would be poetic justice if everyone who's been dinged by spyware charge the people responsible with theft a la the "Hacker Crackdown" of yore. If Ma Bell can claim millions of $$ for a single document "theft", imagine what the general populace could get for spyware activity. Alternately, just charge the spyware people as "peeping toms", spying though (ahem) Windows. Keep it simple and take advantage of existing laws...
"I'm a scientist! I don't think, I observe!" - Dr. Clayton Forrester
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.
There is no connection whatsoever between spyware and OSS, so this argument makes no sense at all.
There is no connection -- but the grandparent poster still makes good sense.
How's that again?
Simple: let's say that the government passes a law saying that spyware is illegal. One way to implement this would be to allow consumers to sue manufacturers of spyware, but we've already seen that the Federal CAN-SPAM Act explicitly disallows consumers to sue spammers. So let's assume that the anti-spyware legislation wouldn't work by allowing law suits.
Then the obvious way to implement the law would be a government board of "experts" who would examine software to determine if it was spyware, and ban software it found to be spyware. With me so far?
Now, we all know that big business has a lot more pull with legislatures and governments than, say, Slashdotters or Open Source programmers. That's because big business can afford to hire lobbyists and lawyers and make massive campaign contributions, while OSS coders are doing all they can to hold down a paying job while spending all their spare time on their Open Source project. Still with me?
So it pretty much goes without saying that the "experts" nominated to the reviewing committee would be drawn from Big Businesses -- like Microsoft, Oracle, etc. -- because those businesses would have the clout and influence to get government to nominate their people.
Now, since the board would be allowed to examine and potentially ban all software, do you think that the Microsoft-nominated members of the board would be inclined to ban Microsoft software? Or would they be inclined to very skeptically "test" Open Source competitors of Microsoft for being spyware?
Even of they didn't manage to ban any Open Source Software outright, they could hold it up for a long period of review, or impose testing costs and requirements that Open Source just can't afford. If all software releases required 90 days for the board's approval and a $90 check from the manufacturer to cover the testing, how many OSS products could come up with $90 to cover each version's release? What if the board "discovered" a need to raise the fee to $2000 -- an insignificant cost of doing business for a commercial software maker, it would probably break many of the projects on Sourceforge.
And at some point, the review board would be lobbied by a big software manufacturer to see a link between spyware and OSS.
The point is, when you give government a right to ban something -- or any other power -- you have to realize that it's big business that always is the best at using the government's rules to its ends, because it's big business that can afford to hire the most experts -- lawyers, lobbyists, and legislators -- to deal with government rules.
Ever notice that many big companies pay little or nothing in tax, but regular guys with regular jobs pay 25% to 50% or more (including Federal, State, FICA, etc)? That's because regular guys can't afford to spend millions on lobbyists to get billions in tax relief.
Big business will always use government rules to shut out competition, because that's what big businesses do. If you give government the right to ban software it considers spyware, big software will use it to call OSS spyware and ban Open Source Software.
Opinions on the Twiddler2 hand-held keyboard?
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.
Then why in the hell did the law makers in Utah write the anti-spyware law in the first place? I guess when IBM wins its case against SCO, you'll state that it's because IBM can spend more money on political parties than SCO can.
1f u c4n r34d th1s u r34lly n33d t0 g37 l41d
I disagree. Given what spyware aims to do, it is clearly an invasion of privacy (privacy is a right according to the Supreme Court of the United States of America), and is therefore illegal, especially because spyware is designed to be nearly impossible to uninstall, and is often delivered by deceptive means.
Maybe this is true, maybe it isn't. We've seen countless examples in our organization of a user getting a pop-up ad for "Free" software that claims to give them some sort of benefit, and watched in horror as clicking "No, thanks" installed the software anyway. Yes, we proactively block access to the servers and IP ranges of known spyware companies at the firewall, but this costs us time (and thus, money) to maintain. But since the scummers (scummer == spammer for the scumware universe) often have multiple hosting providers setup round-robin for load balancing, it is an on-going, ever shifting battle. If we over-react and ban access to a large hosting provider, we risk blocking legitimate traffic that flows through the same outfit.
Perhaps this law should be repealed and re-written in such a way as to target only nefarious software packages (like "CoolSearch", the unremovable beast from Central Asia) while allowing honest vendors to market software based on advertisements. You're right when you say that freedom of speech allows us to speak out about attempts to restrict our other rights, but misguided to think that stopping marketers from essentially stealing people's personal information for their own gain somehow equates to a police state. You're intentionally not adressing the issue that I pay for my connection and PC, and therefore should have control of what is on it. And I shouldn't have to police my "Add/Remove" programs list every day, or run AdAware every time I boot up to guarantee that only the programs I want are on my machine.
Any perceived benefit to these programs is probably the result of deceit and fraud. One can only imagine that people "knowingly and willingly" install it if you ignore every usablity study of the internet over the last few years. They've found that the #1 and #2 complaints of internet users are the number of ads, and the "unclosable-in-your-face" nature of pop-ups. On the side, I help small businesses with their networks and desktop machines. In the last year, the number of companies contacting me about spyware prevention has quintupled. Removing and preventing spyware now represents about 40% of my "on the side" income.
If a user perceives a value to Gator, MyWebSearch, or coolsearch, it is only because they don't understand that these programs are the majority source of their biggest online annoyance. When I ask customers "Why did you install it?" the answer is, nearly every time, "I didn't know it would pop-up 1-million ads/harvest my surfing habits/log all of my keystrokes for the Russian mob."
Perhaps these companies should rethink their business model. If people really "want" WhenU's products (or Gator's, or anybody elses) then they should have no problem with being required to, up-front, tell the user truthfully what the program does. Any complaint about having to disclose this information only proves their sleazy, underhanded intent.
Despite the fact that spamming using other people's connections counts as fraud, theft, and possibly conversion, we saw exactly ZERO criminal prosecutions until a federal anti-spam law was passed. (That it is mostly ineffective is an argument for another thread.) At that point, law enforcement saw that they could get a prosecution, and started investigating and arresting people.
There are probably a few reasons it took a federal law with criminal penalties to get somebody arrested and under the threat of imprisonment, but mainly its the fact that law enforcement is
Who did what now?
" You were forced to click "I Agree"? "
Usually they say "Would you like to install XXX toolbar"
Signed by: Microsoft Corporation
I was thinking I'd get an XXX toolbar, not an XXX toolbar+keylogger+history logger.
--
Also a lot of them exploit ACTIVEX/VBSCRIPT flaws that allow them to install WITHOUT a dialog ever showing.
Where's my "consent" in that case bud? Installing ie and using it?
Get real.
Thousands of laws exist in the US--federal, state, and local--regulating advertising ranging from content, mediums allowed, representation of fact, even down to the size, colors, and placement of billboards. It's a business practice, just like exchanging business cards or currency, not protected speech.
Now the ability to fairly conduct business as protected by laws regarding commerce--that's somewhat of an argument, however weak. Unfortunately for this company, they are too stupid to realize that and, more unfortunately for us, this judge doesn't either. True, an injunction isn't a final ruling on a case, but this judge is being a trifle over-cautious (if not rather stupid).
In this example, it would be like the landlord putting another contract behind the first with some carbon paper saying that he can come in and eat all your food and borrow your tv without asking. Sure you could try to stop it but you have to catch it first. You agree to the contract but you get things not listed.
The granparent's example was:
1. You read and agree to foo
2. Program installs foo, bar, baz, etc.
3. bar, baz, etc. steal bandwidth, personal info, etc.
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.
This is what you get for giving your 6 year old son Administrator access. Give him a limited account, and use Mozilla instead.
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.
But I'm sure that some corrupt judge would find that a viloation of their rights.
Fight Spam! Join CAUCE! == http://www.cauce.org/
Recognise that?
Got time? Spend some of it coding or testing