Antispyware advocates try, try again in US Congress

Two previous efforts to curb the problem lost in the Senate

Members of the U.S. House of Representatives' Subcommittee on Commerce, Trade and Consumer Protection Thursday heard a chorus of support from various industry representatives for a proposed new spyware bill.

But that support was tempered with calls for caution by some who fear the bill, without some modifications, could harm Internet advertisers.

The bill, dubbed the Securely Protect Yourself Against Cyber Trespass Act (Spy Act), is sponsored by Rep. Edolphus Towns (D-N.Y.) and would make it unlawful to install software that gathers information, monitors usage, serves up advertisements or modifies browser and other settings on a computer without explicit user consent. Violations would be treated as unfair or deceptive trade practices subject to enforcement action by the U.S. Federal Trade Commission (FTC). The bill also allows fines of up to US$3 million for some types of violations.

The Spy Act marks the third time in recent years that the House has considered such legislation. The first time, a similar bill proposed by Rep. Mary Bono (R-Calif.) passed the House with broad bipartisan support but failed to make it through the Senate. A second attempt by Bono in the last Congress also passed the House with overwhelming support but met with the same fate in the Senate.

"We are confident and comfortable that this will make it all the way," Towns said in comments before the subcommittee Thursday morning. "We'll finish this thing up, no doubt about it."

"The proliferation of spyware has made it necessary that we pass this legislation," Rep. Jan Schakowsky (D-Ill.) told the subcommittee. "When we first started working on this, spyware was not the household word it is now."

Ari Schwartz, deputy director of the Center for Democracy and Technology, a Washington-based think-tank, welcomed the spyware bill and said that such legislation is needed to curb "one of the most serious threats to the Internet's future." As many as one in eight consumers have spyware-infested computers and more than a million have had to junk their systems because spyware programs rendered them useless, Schwartz told House members.

But the real long-term need is for broader federal privacy legislation that will give businesses clear guidelines on acceptable information collection and consumers better protection against privacy violations, he said.

Dave Morgan, chairman of Tacoda, a New York-based Internet marketing company, told House members that he supports spyware legislation aimed at combating malicious software. But care needs to be taken to ensure that such measures do not have "unintended consequences'' on legitimate Internet advertising, he said.

Morgan, who is also chairman of the Interactive Advertising Bureau's public policy council, said that language in a section of the proposed bill dealing with the collection of certain types of information could be ambiguous. "Interactive and online advertising are the primary means of funding a cost-free Internet environment," and care should be taken to ensure that spyware legislation does not hinder this activity, he said in testimony before the subcommittee.

He added that growing consumer awareness about spyware and aggressive action by the FTC in nearly a dozen cases so far has already made a noticeable difference.

"We agree fully with the committee and the subcommittee that we want to rid the Net of spyware" said Jerry Cerasale, senior vice president of government affairs at the Direct Marketing Association Inc. in Washington. "Going after the bad actors is important," he said.

At the same time, he also expressed concern over what he described as an overly broad definition of prohibited software in the proposal. Without some modifications, the bill would "take into account and cover things that are part of the seamless use of the Internet" and which provide advertising-supported content to millions, Cerasale said.

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