Is Spyware Illegal Under Existing Laws?

[Navigatr1]

Is Spyware Illegal Under Existing Laws?

http://itmanagement.earthweb.com/columns/e...cle.php/3507261

May 24, 2005

By Brian Livingston

The fact that Eliot Spitzer, the attorney general of New York State, filed suit last month against an alleged spyware company has been widely reported. But what everyone seems to have missed in these reports is how Spitzer's case managed to get to court -- despite the fact that New York has no actual law against spyware.

The answer to that question, I believe, is incredibly important to everyone who uses software and suffers from the threat of spyware. In a nutshell, Spitzer is saying he doesn't need a state antispyware law to take action against spyware promoters. This class of computer program is already illegal under existing laws, it seems.

[snip]

Using Business Law To Stop Spyware

The attorney general's suit was filed in the supreme court of New York County against Intermix Media Inc., a Los Angeles-based software company. According to the complaint, Intermix's software is in violation of the following well-established sections of New York law:

• Deceptive acts and practices. When Internet users installed screen savers from Intermix's more than 40 Web sites, adware programs such as KeenValue were quietly installed at the same time. Intermix made this spyware hard for users to remove, omitting an uninstall program and reinstalling the spyware if users tried to delete its files. This is prohibited by New York's law against "deceptive acts and practices";

• False advertising. To encourage Internet users to download Intermix's software, the company made claims on its sites such as "Free from spyware." New York law prohibits "false advertising in the conduct of any business, trade, or commerce";

• Trespass to chattels. This claim is perhaps the most interesting. "Chattels" means someone's personal property that is movable, such as a computer (but not land or buildings). New York law prohibits "the intentional intermeddling with a chattel" that results in "the deprivation of the chattel or impairment of the condition, quality or usefulness of the chattel." Even slowing a computer system down, as spyware almost always does, would seem to fall into this definition of trespass, if a user had not consented to it.

[snip]

Getting To The Heart Of The Matter

Spitzer's lawsuit is a sign that software companies might finally lose the ability to put an unlimited set of conditions into end-user license agreements (EULAs) and expect those conditions to be enforceable in court.

I thought this was a very interesting article by Brain Livingston, and included some important snippets for the purposes of discussion. The New York AG is using existing law to battle spyware/adware. Not only that, it might even change conditions that are often forced upon users in EULA's.

--Navigatr1

[Jank1887]

very interesting. I seem to remember some of the old spam lawsuits (I think ones that were based on the junk fax portion fo the TCPA, and the parallel between spam on a computer being equivalent to junk faxes) had mentioned Trespass to chattels.

I must have been a little confused though, because I thought the text had something to do with a person's right to freely use private space that is open to the public, but that the private owner has the right to protect the property and refuse access to those abusing the property. Maybe I'm mixing up two different parts of the law.