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PCs Posted No Trespass
FreeLinux writes "USA Today has a story about a federal court ruling stating that Spyware can constitute illegal trespass. From the article: 'A federal trial court in Chicago has ruled recently that the ancient legal doctrine of trespass to chattels (meaning trespass to personal property) applies to the interference caused to home computers by spyware. Information technology has advanced at warp speed with the law struggling to keep up, and this is an example of a court needing to use historical legal theories to grapple with new and previously unforeseen contexts in Cyberspace.'"
There will still be spyware, even if it's ruled that you can't 'trespass' on peoples' PCs without their knowledge. All that will change is that they will bury some legalistic bullshit which translates roughly to 'by installing MySuperScreensaverz.com on your computer, you give us permission to pwn your box and fling shitloads of pop-ups at you' five pages deep into the EULAs for all spyware-containing software.
I strongly suspect that this has, in fact, already happened in many (most?) cases.
With spending like this, exactly what are "conservatives" conserving?
When prosecuting a case of trespass, the owner must often demarcate their property with signs indicating that it is private property and trespass is not allowed. This isn't true for all jurisdictions, but the feds generally treat their networks and individual machines in such a manner. All of the ones I've worked on are required to post a warning that they are government property and that unauthorized access is considered criminal trespass.
"Rocky Rococo, at your cervix!"
Seriously though, it's refreshing to learn the courts are looking at it, and at least TRYING to make spyware fit into the legal system somewhere.
If I've ever said "there oughta be a law", here is where it most certainly applies.
but who is guilty, the people who create the malware or the people that finance them ?
im looking forward to seeing a few more executives in jail, they seem to think if you wear a suit and have a PLC/INC you can do what you want without recourse
But how much spyware is installed by the user unknowingly, via misleading dialog boxes or other methods in which the user is fooled into installing it?
Exactly, where will this end. If spyware is trespass how about all the advertisements or demo software that is routinely installed with commercial applications.
From TFA the defendants caused spyware to be downloaded onto his computer.
It would be interesting to know how exactly the defendants 'caused spyware to be downloaded'. Looks to me like the plaintiff was visiting sites that had spyware attached to them, he shouldn't have visited these sites if he didn't want spyware installed. That's what I do. It's like he had a party and his guests brought some friends. Now he wants to charge his guest's friends with tresspassing. Would make more sense to be careful who you invited to start with.
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Obviously, if someone would install broken beads on my abacus without my permission, I would be rather miffed and would have no difficulty getting relief in court. The same thing applies to PCs. However, it simply isn't worth going to court for any damages under $20,000.
Oh well, what the hell...
I'm serious there has to be a point where this is filtered.
I wish you weren't. If you want to live in a communist dictatorship please move to China - don't make the U.S. one. Living in the 'land of the free' comes with some responsibilities. If you want the content filtered, filter it where the Internet comes in to your house, don't infringe on other's rights to download and view whatever they want to. Problem with a 'whole new slew of laws' is that the only way to enforce them results on infringments on individuals rights.
We would all be better off if people would start taking responsibility for their actions. I absolutely detest spyware and what it does to people's computers, but it is the individual's responsibility to take steps to ensure they don't infect their machines.
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RTFA! All it says is that the court denied a motion to dismiss the charge of trespass to chattel by the defendants. The whole thing still has to go to trial. While this is a hopeful sign, the judge may later decide against the idea.
My mind works like lightning. One brilliant flash and it is gone.
and this is an example of a court needing to use historical legal theories to grapple with new and previously unforeseen contexts in Cyberspace
No, this is an example of a really dangerous precedent.
What if, for example, I was to send you an email contained a corrupted file that crashed your system?
Is that tresspass too?
How the fuck do we know?
Part of the reason for having laws, it to have it clearly spelled out, what we can and cannot do within the bounds of the law.
Rulings like this are really dangerous because they throw the established legal meaning and inperpretations to the wind.
Computer crime laws exist and they are there for a reason. If they are not strong enough, that is a job for the legislature, not the judiciary.
Sure it's important to catch these jackasses, but it's not so important that we should forget why we have written laws in the first place. A person should be able to know very clearly what they can and cannot do.
Rulings like this are very dangerous, as the judge if effectively just making shit up and ruling by analogy.
Can they start charging people who call on the phone too? We don't know.
With judgment like this, you could be declared a criminal at any moment.
No matter what you do, with enough bad analogies and hyperbole, it could be compared with something illegal. Is that really what you want?
Life is too short to proofread.
Looks to me like the plaintiff was visiting sites that had spyware attached to them, he shouldn't have visited these sites
That reminds me of a help desk tech I was in a Y-jack with one day, telling a customer not to use a firewall because of the problems they cause. I muted him and asked, "Ok, so what if they run a program that is actually a trojan?" His response, "Well they shouldn't do that."
Great non-answer. How's the guy supposed to know which sites are safe and which aren't?
...if it was it would be pretty ridiculous.
If I accidentally forget to lock the door of my residence when I have to leave to run a quick errand, and I return to unexpectedly find a stranger rummaging through my refrigerator it is criminal trespass. Said stranger need not enter by force or cause damage to be convicted of a crime, and I don't have to put a "no trespassing" sign on my front door to make it a crime. It is obviously a private domicile and "no trespassing" is implied.
Spyware is the electronic equivalent of the above. Providing explicit notification should only be required when a given property could easily be mistaken for public property--and the same applies to computers. Spyware vendors should expect that it is a certainty that their distribution methods will target computers that are "private property" and that they must clearly and explicitly ask permission to interfere with that property.
It might make spyware warn you, and remove itself when asked. That's all I ask of spyware, the same thing I ask of guests in my house. You have to ask my permission if you want in, and you have to leave the minute I tell you to get out, and not come back unless reinvited.
The problem I have with spyware is that so much of it is so slimey. It'll install itself and then put all sorts of trickey checks in to ensure it's not unloaded. It'll have a reinstaller in the services, and in the startup group, and in the "run" section, and add itself to the "run once" section each time it runs, and latch on to explorer and so on. Thus when you try to remove it, even with the help of spyware tools, it's often very difficult to get rid of. Also, spyware often opens backdoors to allow other spyware in. In the beginning you have one peice, then through no further interaction you have 10.
This is what needs to be illegal. The software needs to make it clear what it does, and it needs to uninstall, and stay uninstalled, upon request. If we can start prosecuting the sleeze that make programs that don't obey those simple rules, I'll be real happy. If you want to load up spyware on your system voluntairly, that's your business. I just get pissed when I get a service call to remove it, and it fights tooth and nail, or when a person installed one thing they wanted, and it invited 10 of it's friends they didn't.
The last thing we need are millions of little laws governing every damn thing! We've already gone way too far in that direction. The law is supposed to be something everyone obeys. Well a prerequisite of that would be it has to be something everyone understands. You can't obey that which you don't understand. Also our laws are supposed to be somewhat rooted in common sense. When you get down to it, most of our most important laws are just formal codifications of basic kindergarden manners: Don't take stuff that isn't yours, don't hurt other people, don't lie, etc.
Real and virtual property are basically the same when it comes to access rights, and what most people would find acceptable. If something is open to the public and inviting, like a store front or a public website on port 80, clearly it's an invitation to all to come on in. You only have to stay out if the owner explicitly forbids you access. If something is locked up, like a private residence or a passworded SSH server, it's clearly a message that you need to obtain permission first to come in, otherwise stay out. Likewise, regardless of permission, you aren't allowed to destroy anything.
Basic property law really can be very well applied to virtual property, in such a way that I think everyone would understand it and most resonable people would agree it's a good set of rules. We don't need a whole new set of complecated laws for it.
You are correct that the best solution is for the end user to be smart. However, just because you shouldn't have twenty dollars bills taped to your suit when you go walking down an urban street, doesn't mean that the law shouldn't punish the crook who will rob you. Society and civil behavior exists because we try to prove Darwin wrong by helping the morons survive and smacking down the predatory.
Our founding fathers removed the guys in charge. Be American. Vote incumbents out.
Where as what he suggests may be a little simplistic and utopian, I think that your criticism doesn't really negate his suggestions.
Licenses are just contracts and, at least in the US, there are some laws limiting contracts. Specifically, contracts can be deamed unenforceable if they are proven to be unreasonable. I'm sure that a good lawyer with a bit of luck could invalidate a contract stating that you give over your computer to be used however a software publisher wants at the click of a button. The problem is finding a martyr to represent the people in that battle. Then again, if such a law were in place it would only take one class-action lawsuit to scare most spyware makers out of the country.
If you want to poke holes in his utopia then you should point out that not everyone lives in America, so a law like that would only be so effective. The same way that the laws against spam have done nothing. It won't protect computers outside of this country, and it won't affect software publishers outside of this country.
I believe that the best way to fight this would be to make a law similar to those pertaining to receiving stolen goods. In other words, make it a criminal act to profit off of these things. The problem is to narrowly define what spyware is, and head off the licensing issues before an expensive court case. I'm not sure that our current set of lawmakers is intelligent enough to form a law that doesn't significantly increase the liability for most legitimate software publishers.
Nah, spyware can be written for any platform.
All it takes is an idiot users to install it.
...and that is all I have to say about that.
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