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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
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.
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.
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.
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"
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.
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
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
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
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
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.
No, I was serious. There's a law against cracking passwords and entering computers already on the books. That's what Mitnick was busted for, wasn't it?
As for "we have enough laws" that's like the prince in Amadeus telling Mozart there were "Too Many Notes". I don't care if there's on ly one law or one million on the books, as long as it does the job of creating the type of society we all want to live in.
the major advances in civilization are processes which all but wreck the societies in which they occur - A.N. White
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
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.
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.
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.
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.
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
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.
Recognise that?
Got time? Spend some of it coding or testing