May 06, 2005
Will Spitzer Go After the Adware Industry?
In the wake of Spitzer’s action against Intermix, I’ve been seeing lots of speculation that Spitzer’s office will go after other companies as well, given Spitzer’s reputation for pursuing an entire industry. See CBS Marketwatch (registration required); Riva Richmond of Dow Jones Newswire also ran an article yesterday. In Richmond's article, she says “Among the companies that experts say could come under scrutiny for distributing similar programs are Ask Jeeves Inc. (ASKJ), FindWhat.com Inc. (FWHT) and CNET Networks Inc. (CNET). Fallout could also extend to search-ad providers like Yahoo Inc. (YHOO), which have benefited indirectly from some of these programs.”
On the one hand, this speculation could be helpful if it helps clarify when an vendor is liable for the actions of its distributors—a point that is an untested and generally novel point of law. The anti-spyware zealots have successfully obfuscated this issue by castigating distributors and vendors equally, without even acknowledging that the law may treat them separately. Perhaps through sheer repetition, this meme is gaining traction. We could use some additional authority to enlighten, and perhaps eliminate, this meme.
On the other hand, I have an uncomfortable feeling that this is turning into a witchhunt, where otherwise-rational people make poor “guilty until proven innocent” assumptions that result in a wake of dead bodies. The zealots may get some schadenfraude, but a lot of people get hurt and society ends up worse off. There’s a certain tyranny implicit in every witchhunt; we need to vigilantly resist them accordingly.
UPDATE: AP quotes Spitzer's office threatening the entire industry.
Posted by Eric at May 6, 2005 01:44 PM | Adware/Spyware
Eric is wrong. Sorry Eric.
There is no obfustication that blurs the distinction between spyware providers and vendors that make use of spyware advertising. They all may not quite understand precisely how it is illegal, but everyone knows just by the smell that there is something wrong with adware/spyware advertising.
Spyware is usually installed in such a way that it is hard to find and harder to eradicate. Rarely does it come with an executable to uninstall it and even more rarely does it appear in the Windows Add and Remove program list. This is intentional. Spyware writers intend that it remain on your hard drive forever, popping up those ads on which the spyware company makes money. They intend that it be hard to find and harder to elininate. If enough spyware is written to your computer, it soon slows and dies.
The use of another person's personal property for one's own ends where the owner is substantially deprived of the use of the property, the property is damaged or the property is substantially interferred with is a common law tort. It is usually called "trespass to chattels". If this seems to you to describe the effect of spyware on your computer, you're dead right. Writing spyware on your computer is a tort, actionable at law. You can get damages and an injunction prohibiting a spyware company and the vendor using the spyware company from ever writing on your computer again.
It may also be a crime. You well know that if I write my ad message on the side of your car, it's vandalism (sometimes called graffiti or malicious mischief). I could go to jail.
How does this differ from writing on your computer hard drive? Both the car and the hard drive are your personal property. You did not give me company permission to write its add material. So what is the difference? A lot of wind has gone into an effort by spyware companies to distinguish a difference, but in fact there is none.
Any crime is also a tort, and, again, you can sue and recover damages and/or get an injunction.
That's the fundamental problem with adware/spyware. The process is illegal. All the spyware companies, vendors who hire spyware companies, and web sites that permit spyware to be downloaded all know it is illegal. They just hope you don't find out. But now you know, so hie down to the courthouse and sue the bastards.