New York Attorney General Sues Spyware Company

DevanJedi writes "Reuters is reporting that New York Attorney General Eliot Spitzer has sued alleged spyware company Direct Revenue, charging the Internet marketer with secretly installing millions of spyware programs that sent unsolicited advertisements to users' computers. Direct Revenue settled a class action law suit last month in Illinois."

Comments

No, you can't have a constitution

[voice_of_all_reason]

Spitzer also asked the court to compel the company to account for its revenue

5th amendment surrenders?

As much as they're probably guilty, the court should not be able to say "prove you didn't do X or we'll hold it against you"

Re:No, you can't have a constitution

[SinGunner]

Isn't it already a crime to hide the source of your revenue though? Isn't this how they bring down the mob? Basically, in America, if you can't account for where your money came from, you're in pretty hot water. The IRS needs its money... neeeedddsssss.......

Re:No, you can't have a constitution

[kiddailey]

Since when do the amendments apply to corporations?

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

IANAL, but as far as I knew, the privilege against self-incrimination does not apply to corporations or other collective entities. And, after some brief research, appears to have been upheld in Braswell v. United States.

Re:No, you can't have a constitution

[cultrhetor]

Before flaming Spitzer with our vast knowledge of the Constitution, we should be sure that we understand the document. It's Amendment 4 that states

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Next: what about the rights of computer owners? Spyware is installed, without consent, on personal computers (mostly Windoze boxes), which are recognized spaces of personal property. In one sense, it is quite similar to breaking and entering - our legal system is still rooted in the 17th century, and hasn't yet caught up to the idea that a computer is a space: it contains personal artifacts (messages, documents, calendars, etc.) - much as a room or a drawer in a home. Shouldn't that be just as protected as a home?

I will agree, people who don't/can't protect their computers are just as foolish as people who leave their doors unlocked while on vacation; however, if someone enters without permission, even if the door is unlocked, the intruder is still criminally liable.

Re:No, you can't have a constitution

[cbiltcliffe]

Ahh, see...there's your problem. You're thinking of 'sex' as two people, some candles, maybe a bottle of wine and a nice comfortable bed.

Corporations have sex in the form of massive anal rape gangbangs, a la Sony/First4Internet.

Re:No, you can't have a constitution

[Procyon101]

Which is exactly why homosexuals can legally marry corporations in all states.

wait...

Re:No, you can't have a constitution

[Apraxhren]

IANAL but the Required Records Doctrine of the 5th amendment states

While the privilege is applicable to one's papers and effects,\226\ it does not extend to corporate persons, hence corporate records, as has been noted, are subject to compelled production.\227\

See: http://www.law.cornell.edu/anncon/html/amdt5afrag7 _user.html#amdt5a_hd28

Re:No, you can't have a constitution

[takeya]

Whether or not you like it, what the OP meant by sex is not a trait of a person in the eyes of the law is that in order to recieve constitutional benefits (or any legal benefit) guaranteed to a "person," you must be either an individual or a corporation. An unincorporated company or firm does not fall under this definition, though almost every company is incorporated, even mom&pop are an LLC now, since it's so easy to do, and individual errors appear legally as errors of the corporate "person" and only the corporations assets are liable in a lawsuit, rather than the employee's.

Re:No, you can't have a constitution

[Xaositecte]

Why is everyone quoting the constitution here, you've got the right article, but it's barely applicable, and doesn't prevent a search at all.

Asking a judge to issue a Subphoena is the process of trying to establish "Probable cause" - if it's likely that an individual or corporation committed a crime, and a search of something they own (Residence, place of business, financial records, etc.) would likely prove that crime was committed, a judge can authorize a search.

Re:No, you can't have a constitution

[mOdQuArK!]

Spitzer has been pissing off rich and powerful people for a long time, with about the same fervor whether or not he's seen as running for Governor. I think he gets off on bringing the big guys down, and IMO, the more power to him.

If he _does_ get elected Governor, I hope every crooked politician & business executive in his state go bankrupt from the dry-cleaning bills that they have to pay to clean their underwear every time he makes a move.

Spitzer eh?

[TubeSteak]

From what I understand, his style is to pick a fight and make a lot of noise about it in the press.

The defendants are usually judged guilty by the court of public opinion, long before an actualy jury gets near the case.

I'm not saying his technique is good or bad, but it's worth noting that more often than not, he gets a settlement instead of a drawn out legal battle.

Re:Spitzer eh?

[HiThere]

At least he's been choosing people that deserve to be made to look bad. There have been much worse prosecutors.

The only thing wrong with his approach is the culprits get off easier than they should. The positive side is that if he didn't attack them, they'd get off scot-free.

Re:Spitzer eh?

[evilviper]

From what I understand, his style is to pick a fight and make a lot of noise about it in the press.

The defendants are usually judged guilty by the court of public opinion, long before an actualy jury gets near the case.

This is disingenuous at least. These companies were convicted in the court of public opinion LONG before Spitzer got involved.

The fact that the Attorney General is prosecuting the companies that 99% of the public-at-large believe NEED to be sued, seems just about EXACTLY what his position is supposed-to entail. We're just so used-to corporate/political bribery and favors that we're shocked when we see elected officials aggressively doing their job.

Ok...

[gcnaddict]

We see all of this, and yet no one has bothered to sue Claria yet... even AFTER they announced their restructuring plan.

Please sue Claria!

He's been suit-happy the past few years

[Attackman]

Spitzer really REALLY wants to run New York State, so he's been suing everyone the last few years. He's the one that nailed AOL for not letting customers cancel their accounts.
Doesn't bother me much. All the suits he launches appear to come from complaints to his office, so he's "working for the people" as much as he's in business for himself. Plus, he's suing people that I have issues with myself: spyware companies, AOL, the RIAA.
I just might be pushing the button under Mr. Spitzer's name when it comes election time. Hopefully all he's after isn't just the bigger office in Albany.

Re:He's been suit-happy the past few years

[sgt_doom]

I don't think it's that AG Elliott Spitzer wants to run NY as much as he is filling a tremendous void left by the absymal, nonperforming and nonfunctioning F.B.I., who appears to be involved with far too many of their very own inhouse scandals and problems.

The F.B.I. should really be doing everything the Mr. Spitzer is doing, but thank goodness at least he's doing it!!!!

You know, if this country had an F.B.I. director like Mr. Spitzer, as opposed to that useless shyster, Mueller, or better yet, a real attorney general at the federal level......

DirectRevenue developers should do jail time

[mrheckman]

I had personal experience with Direct Revenue's adware that took many hours to remove. Imagine how many hours have been spent by people trying to clean up their computers from their adware. I think it is a shame that the developers were able to escape with just a fine from the Illinois lawsuit. They should have to do hard time -- at least one hour for every hour spent by people trying to remove their software. How many years do you think that would add up to?

"But it's in the EULA!"

[Opportunist]

Can you already see the defense? "But it's in the EULA!" is what will be said. You agreed to about a billion pages of legalese, of course after reading it.

As long as such EULAs can be used as an excuse to claim the user waived all rights and allowed the company to do whatever they please, hidden in a text nobody but a lawyer can decypher, we'll have buggy software, spyware and, as we've recently seen, even rootkits in our soft. Sure, EULAs don't hold a drop of water in most countries, but it already starts at the problem that most people don't even KNOW that the software they're about to install is going to cause a problem to them.

And as long as such shady practices don't have to be told in simple terms that can be understood by normal people who didn't study CS or law, this practice will continue. Whether or not this suit actually gets through.

He might be fined a few million bucks. Ok. Pocket change for the average spam king. As long as the revenue from illegal activities outmatch the possible damage charges (see also Sony's rootkit and the "settlement"), it won't stop them from bugging their users' computers.

No, the cat does not "got my tongue."

[Impy the Impiuos Imp]

> Direct Revenue settled a class action law suit last month in Illinois

Don't let them settle a lawsuit! Make the assholes release software to de-install itself, safely and completely.

Son of a bitch, I had to re-stage my wife's laptop because of Winfixer.

Fix the law.

[headkase]

I'd like to see it made illegal for software to resist an uninstall (e.g. reinstalling itself on the next reboot). Seriously, if you want it gone and it's your machine who the hell do they think they are to stop you?

And for more fun.....

[wehup]

Here's the AG's site: http://www.oag.state.ny.us/press/2006/apr/apr04a_0 6.html But the real fun is in reading the actual complaint. It is clear the AG does not think highly of Direct Revenue. http://www.oag.state.ny.us/press/2006/apr/Direct%2 0Revenue%20Affirmation%20of%20Justin%20Brookman.pd f Caution... large PDF, but a fascinating read.

Re:Forget NY governor, get him to be US AG

[Seraphim1982]

When's the last time NY Governor's gone off to do anything interesting.

I hear FDR did a few interesting things after he was Governor of New York.

Re:Good lawsuit. Wrong target.

[DrEldarion]

Is there anywhere on Slashdot that is free of this anti-Microsoft bullshit?

In no way is this Microsoft's fault. Spyware can be installed on ANY machine that is not completely locked down. Keep in mind that most spyware is installed alongside other programs during "legitimate" installations (or even part of the program itself, see Gator / Bonzi Buddy). If you give the users the ability to install any program they want, then they can also install spyware. This could happen on a Mac. This could happen on a Linux box. This could happen on ANY COMPUTER that can have programs installed on it.

Re:Eliot Spitzer: Is he cool, or is he whack?

[mhollis]

Actually, niether. He's a politician.

I generally like what he has been doing, which mostly amounts to leveling the playing field between big business and the people -- but one can easily see the opportunitism here of a very political animal in the cases he takes on and how his PR machine works it. He was elected by mostly Democrats to be the Attorney General under a Republican Governor with whom he has had a mostly uneven relationship. He did not challenge this Governor (Pataki) until the Governor announced that he is planning on leaving office, though he has gone after many of the Governor's financiers and political cronies.

In not running against this particular governor, he has set his office up as a stepping-stone to the office of Governor for himself. A very shrewd move. Were he to have remained as a candidate for Attorney General (especially with the favorable press he has been receiving in the state of New York) I'd say he's close to 90% altruistic -- a very hard-working prosecutor with an eye for the kind of justice that sells newspapers. By virtue of his run for Governor and the timing of that run, I'd say he's about 50 to 55% altruistic and would probably make a pretty good, if not combative Governor.

I recall another prosecutor who is rumored to have made a good executive: Giuliani. But Rudy Giuliani was best-suited to crisis management. He tended to get bored and pick fights (usually with the helpless) when things got quiet. Unfortunately I think Rudy has sold his soul to the Republican right (which is wrong).

My overall favorable impression of Mr. Spitzer will, likewise, tumble should he sell his soul to a national political machine. These types are best when they're fighting the good fight with no hangers-on and no encumbrances.

Re:Good lawsuit. Wrong target.

[dlZ]

I write this reply from a Linux box. What do I do for a living? I own a PC shop. A huge amount of what I do is removing spyware from computers. I don't think this is Windows fault. The people that bring the PCs in many times admit to what they did, saying they didn't care and just clicked yes to make it all go away. These same people would type their password and hit OK just to make it "go away" on a Mac or in a Linux GUI, too.

I run Linux because I want to and enjoy it, not because I'm on some anti-MS agenda. I sell mostly Windows machines. Most of my clients couldn't handle a Linux machine, but the anti-MS proganda on /. is extreme.

I guess we must both be new here.

Rough Rider

[Doc Ruby]

Spitzer is the frontrunner in the upcoming 2006 NY state governor election. His career is starting to remind me of Teddy Roosevelt's.

Re:Good lawsuit. Wrong target.

[michaelhood]

Next time someone gets carjacked, lets sue Toyota.. after all, they should have mounted machine guns to take care of any intruders.

Dumbass.