Spyware Company Sues Utah Over Anti-Spyware Law

cgibby98 writes "An earlier Slashdot article talks about how web businesses oppose Utah's new spyware law. A story in Tuesday's Deseret Morning News says that WhenU.com filed suit Monday against the state, its governor, and attorney general, trying to keep the law from going into effect next month. The lawsuit claims the law violates WhenU's constitutionally-protected right to advertise."

Constitutional rights?

[BWJones]

So, lemme ask: Would you allow me to install some software on your phone line that would interject with advertisements from time to time? No. You pay for a specific service with your phone line and you don't want to have to be interrupted with ads when you are talking with family, friends or business partners. If this lawsuit is accepted, then one would not have any protection to prevent ads from appearing during your phone calls. As a resident of Utah, I am not usually happy with all of the legislation that occurs up on capitol hill here, but this is one bit of legislation that I fully support.

From the suit: "private enforcers, motivated by the act's draconian penalties and the promise of attorneys' fees, may still seek to sue WhenU for allegedly violating the act."

Well, yeah. That is just the point folks. I don't want spyware on my system. (one of the many reasons I use a Macintosh)

Thus, the act presents WhenU with the impossible choice of either foregoing constitutionally protected advertising and spending significant sums to comply with the act (thereby reducing the effectiveness of its business), without any guaranty that it will avoid liability in doing so, or else being subjected to millions of dollars of claims by private litigants."

No, actually. It is quite simple: Go out of business. Your business model is corrupt and unwanted by both consumers and legitimate businesses. We don't want you here and you can't force yourself on consumers that do not want you. That is the point of the law, the people have spoken and the legislators have listened and responded. And NO.....you don't have a constitutionally mandated right to invade my privacy. That is what it really comes down to.

Re:Constitutional rights?

[Anonymous Coward]

Would you allow me to install some software on your phone line that would interject with advertisements from time to time? No. You pay for a specific service with your phone line and you don't want to have to be interrupted with ads when you are talking with family, friends or business partners

You mean like when you're watching TV and from time to time advertisements are interjected into your programs? Oh wait, you don't pay for cable tv... WAIT A MINUTE!

Re:Constitutional rights?

[PeterGraves]

But there the ads are inserted by the provider of the media.. It's a bit different when someone hijacks your hardware and does as they please with it, and puts things in/over/etc that neither the media provider or the user actually wants.. if someone started splicing into my cable line and streaming commercials over top of my tv programs, and doing damage to my tv sets you better believe I would be pissed (as would the authorities I am guessing..)

Re:Constitutional rights?

[cexshun]

Yes. However, WhenU is not splicing into anything. When installed, it clearly states it's being installed. You can choose not to complete the installation if you disagree with it. WhenU is not a viral spyware that hijacks anything. Let's not turn this into a witch hunt and sight "malicious" spyware as a cause to attack spyware that is installed due to ignorance.

Let me introduce you to **Homonyms**

[TheScienceKid]

The three homonyms you may find useful to remember...

** cite

** sight

and

** site

see http://www.cooper.com/alan/homonym_list.html#cite

Re:Constitutional rights?

[Geek of Tech]

So, if someone created a virus that would wreak havok on computers, it would be okay, as long as there was a EULA, for the user to agree to? Good grief.....

Re:Constitutional rights?

[rollie_tyler]

That's funny, explain to me how WhenU (WhenU Search, USave!) suddenly appeared on my friend's computer without any action on his part, and without any EULA being displayed. Actually, I'll tell you. As he told me "I was just reading an article online, and all of a sudden, this big window popped up, a bunch of new icons appeared on my desktop, and I have this new toolbar in Internet Explorer. I never clicked 'yes' to anything!"

The icons on his desktop (o, o.bat, and some executables whose names I forget) were part of a CoolWebSearch infestation. If you look here [mvps.org] you'll see that this installs by itself using a vulnerability in Internet Explorer. One of the packages it had downloaded was WhenU. Now I'm sure WhenU will say "This was done by an independant contractor. We had no knowledge of it!" but they still pay this "independant contractor" for the ad revenue. These guys have just as much right to forcefully install advertising software on my computer as I have to break into your house and paint "visit slashdot.org" on your wall. Which is to say, none.

Re:Constitutional rights?

[RetroGeek]

if someone started splicing into my cable line and streaming commercials over top of my tv programs

How is this fundamentally different from

But there the ads are inserted by the provider of the media

Both go OVER the content. This is not simply another commercial, this over-writes and blocks my view of the content.

Re:Constitutional rights?

[jorlando]

when you pay TV (be it cable, sattelite, UHF, whatever) you are paying for a content (movies, series, cartoons) and not for the lack of advertising.

a better analogy for spyware and TV is that:

you are watching Spiderman on HBO, and suddenly someone hijacks the signal and starts to overlaying some commercial over the movie (pop-up) or changes the movie for some other program (browser hijack)

I hope that companies like that go under ASAP, that's what they deserve.

Re:Constitutional rights?

[maximilln]

Rather than happily trotting down the road of legislating ourselves to death and enacting new laws which will, inevitably, be twisted around to imprison some poor old grandmother who's establishing an online outlet for her counted cross-stitch work . . .

Why don't states like Utah spend more time lobbying the Feds to repeal all of the laws which funnel taxpayer dollars into these corrupt startups? Why don't states like Utah spend more time repealing laws which protect companies like MS when they release products which have "exploit me and my user base" written all over them? It's always easier to pass more laws. America is going to legislate itself into a corner where everyone can be construed as doing something illegal at any time.

I hate spam and adware as much as the next honest citizen but it's very predictable the way the politicians and business owners run this dog and pony show and run off with our money year after year after year.

Re:Constitutional rights?

[Anonymous Coward]

America is going to legislate itself into a corner where everyone can be construed as doing something illegal at any time.

Going to?

There are already enough weird laws on the books to do that. In one way or another, whether you know it or now, we're all criminals under some law in some way. It's just a matter of whether it's worth the effort to prosecute us. Tomorrow morning, you could awaken to find that you've pissed off some bureaucrat somewhere and find a zillion small fine notices in your mailbox for stuff people do everyday without a thought.

Re:Constitutional rights?

[lightspawn]

There are already enough weird laws on the books to do that. In one way or another, whether you know it or now, we're all criminals under some law in some way.

Did you know, for example, that cohabitation is illegal in North Carolina? [canoe.ca]

The land of the free indeed... as long as you don't offend anybody making more money than you and do nothing against the religion of the ruling party (think there are two? check again).

Sunsets are pr377y...

[Anonymous Coward]

"... America is going to legislate itself into a corner where everyone can be construed as doing something illegal at any time.

ya' mean we ain't there yet?

spit on the sidewalk? - 90 days...

climb a rock? - 180 days...

joke about "explosive flip-flops" in the air-port? - guantanimo bay...

How about a constitutional ammendment instituting a "Sunset" clause -- something like giving legislation a maximum life span of 3 terms, after which it must either be re-proposed, and ratified, or taken off from the books.

get rid of these silly laws about how one can (or can't) wear their facial hair, in church, &c., while we're at it.

Re:Constitutional rights?

[Brandybuck]

I agree. I'm sick and tired of people whining that we need more laws. People need to start taking responsibility for their own lives.

Yes it sucks that there's spam and spyware and adware out there. But there are other ways to solve this problem without giving government yet another quantum of totalitarian authority. The purpose of government isn't to solve your pet peeves.

Re:Constitutional rights?

[mojotooth]

Why don't states like Utah spend more time lobbying the Feds to repeal all of the laws which funnel taxpayer dollars into these corrupt startups?

Do you think you could be more specific? You posted this general notion a couple different times, but I'm not aware of a single bit of legislation on the books entitled the "Corrupt Startup Protection Act."

Or am I going to get modded down for asking for clarification from a replier?

Re:Constitutional rights?

[swordboy]

The company is probably going to win but it boils down to this:

EULAs are out of freakin' control

We simply need to pass a law to remove the power of the EULA (because anyone in their right mind KNOWS FOR A FACT that a 58 page EULA is simply clicked through by the average user). NOBODY installs this software with any knowledge of what it really does.

Once the rights are back in the hands of the consumer, this will never be a problem. Oh, and I wish someone would excercise their LEGAL right to install a counter-measure in the same way that this scumware is installed.

Re:Constitutional rights?

[maximilln]

-----
We simply need to pass a law to remove the power of the EULA
-----
You've got it right, but backwards.

We've got to REPEAL the laws which ensure the powers of the EULA.

Remember:
More laws = "bad"
Laws are diretly related to abuse
Fewer laws = "good"
There are fewer technical loopholes for abuses.

The rights always started in the hands of the consumers and the citizens. It was the act of passing more laws which handed those rights out to corporations and vaporous entities.

Re:Constitutional rights?

[DarkSarin]

You, sir (or in the unlikely event that this is the case, madam), are most enlightened.

The problem is that politicians rely on complex laws to keep themselves in office and reduce the power of individuals that aren't part of the ingroup. But don't break out the tin-foil hats just yet--I'm not claimin a conspiracy, just good old-fashioned capitolism. That's right, people striving to make their business thrive. In this case, it's the gov't.

This misses the deeper issue though. Why in the world does this company (or any one else) feel that advertising is a constitutional "right". I am guessing that this is another one of those sorry misinterpretations of "freedom to speech" that we hear about. The sad truth is that freedom of speech was never meant to be guaranteed for companies, just individuals. There is a huge difference between my claims and the claims of any corporate entity.

If advertising was truly free speech, then the laws about truth in advertising wouldn't fly (after all, making us tell the truth restricts our ability to promote our product). As it is, we have two essentially conflicting ideas.

The real problem is that, as you said, we have far too many laws that only a few people know anything about.

One solution would be to make congressmen have no salary, and then they would have to work for a living. This would mean that they wouldn't have time to sit around and think of new laws. Any country with professional politicians is certain to have trouble.

Re:Free software?

[maximilln]

-----
They aren't charging for it, so by your rules, they couldn't be held liable for it
-----
Is their startup backed by a government business loan? How about publicly traded stocks or bonds which come from public 401k funds? How about money that comes from loan sharks who get that money from public banking institutions? In any of those cases the WhenU software is _not_ free because the consumer paid to start the company.

The large majority of open software comes from private individuals writing the softwa

No competitors for Microsoft

[AtariAmarok]

Microsoft has competitors? Where?

There was a company called Apple. Ever hear of them? They went out of business in the early 1980s when the "Apple III" was a sales failure. I've heard of something called Linux, but as far as I know, no-one uses it outside of Finland. "Sun" is rumored to be developing something called OpenOffice, but this is not expected to be released until 2011.

Re:Free software?

[JesseL]

ANAL, but IME, every party in a two-car accident is (at least) 10% liable, since the accident would not have happened without their collective presence. Liability can never be reduced below that level - I don't know how that works outside of automotive accidents, though.

Boy, I'm glad liabilty doesn't work that way in other fields. Imagine..."You are at least 10% liable for the fact that you were shot - if you hadn't been standing in the way of that bullet you never would have been hit", or "My client can

Re:Constitutional rights?

[Em Ellel]

Once the rights are back in the hands of the consumer, this will never be a problem. Oh, and I wish someone would excercise their LEGAL right to install a counter-measure in the same way that this scumware is installed.

My guess is that will only happend after someone will insert a major virus/ddos software under "protection" of EULA and then sue Anti-Virus companies to prevent them to adding the virus to their definitions.

Re:Constitutional rights?

[HiThere]

This (sort of) actually happened. I believe that the court decided that you couldn't use a contract to enforce an illegal action (the distribution of the virus). It wasn't quite the same thing, but the result clearly indicates that if you are seen as a legitimate business, then it's probably going to be seen as illegal interferrence. But passing the law is classifying them as an illegal business, and therefore they shouldn't have the ability to coerce the illegal behavior through a contract.

Or something

Re:Constitutional rights?

[JediTrainer]

Would you allow me to install some software on your phone line that would interject with advertisements from time to time?

Funny you should mention that. By coincidence, I just got off the phone not two minutes ago with a Telus Mobility [telus.com] customer service rep. You see, this afternoon I got a text message advertisement.

This was extremely disruptive! Here I'm in a meeting, and my bloody phone starts ringing as if our server was down, and it turned out to be a stupid ad.

I was quite angry at this, being offended that I'm paying Telus to advertise to me, so I called them. What they told me? The only way to not receive the ads is to block ALL text messaging.

This infuriates me some more. So now I'm back to the old-fashioned: write a snail-mail letter (which I'll do) complaining and indicating that they'll lose me as a customer if they continue this bullshit.

If I keep getting ads, I'm switching to Fido.

Re:Constitutional rights?

[onepoint]

Yep already happens for local calls at the airport if you look for the right phones. ( I lucked out at miami international )

I picked up the phone and it asked if I wanted to make a free local phone call ( up to 5 minutes ), so I listened to the advertising for something going on in miami, then it connected to the number i wanted.

onepoint

More lies?

[mindless4210]

"WhenU's software, one of the apparent targets of the act, is installed only with user consent, and does not invade the privacy of computer users..."

I'm not familiar with WhenU's software, but I find this hard to believe. Can this statement be defined with the same style of deceit that seems to encompass adware companies? Anyone who knows of their spyware's habbit's please shed some light on this.

The law also curbs pop-up advertising on the Internet and calls for penalties of $10,000 per violation.

That's quite significant for a pop-up, don't you think? I mean I'm 100% against that kind of advertising, but $10000 seems incredibly steep.

Re:More lies?

[tomhudson]

That's quite significant for a pop-up, don't you think? I mean I'm 100% against that kind of advertising, but $10000 seems incredibly steep.

Lots of these spammers won't stop, even if the fine's a million bucks. Besides, it's still only 1/15 of what copying 1 song to mp3 nabs you.

Re:More lies?

[Pakaran2]

I would assume that those fines are per conscious act of creating popups that don't comply - not per violation.

I also doubt it applies to all "pop up ads" - it is more likely to apply to e.g. adult ads on unrelated sites, especially those added to IE by spyware.

There is some question about how a web server is supposed to detect what state the recipient is in, though.

Re:More lies?

[GuyinVA]

I'm not familiar with WhenU's software, but I find this hard to believe
It is hard to believe, 'cause it isn't true. WhenU installs are also a pain in the arse to remove.

My dad recently downloaded some desktop weather software (though I'm not sure why he wants to know the weather of his desktop), and this junk installed with it. I tried to duplicate the problem by installing on another machine, and was never informed that it [whenu] was installing. Luckily i tried it on a test VM, so I didn't get the pleasure of uninstalling twice.

Re:More lies?

[kryptkpr]

The law also curbs pop-up advertising on the Internet and calls for penalties of $10,000 per violation.

That's quite significant for a pop-up, don't you think? I mean I'm 100% against that kind of advertising, but $10000 seems incredibly steep.

Uhhmmm.. There are many free sites that rely on the income generated from pop-up ads to function. This legislation would force those sites to close. Pop-ups pay on the order of $1-2 CPM. Normal banner ads are something like $0.05-$0.15 CPM now (for compariso

Re:More lies?

[Mr. Slippery]

There are many free sites that rely on the income generated from pop-up ads to function.

First, we need to distinguish between "free" and "advertizing supported". Second, this isn't about website's own popups (which are bad enough), but about spyware-generated popups.

Unless you want to beg your users for money, or force them to CLICK on banners, popups are pretty much the only way you can go.

Google gets by without them. (In fact, every decent website gets by without them, since if you use pop-up ad

get to begging.

[sTalking_Goat]

so beg your users for money. I can point to a number of sites that exist soley on user donations. I personally wouldn't frequent a site that bombards me with pop-ups and if you have users that endure it I'm sure they be willing to float you some dough every now and then if they like your content so much.

Besides compared to what you would get sued for for sharing an MP3 or what the fine would be for DOSing the NY Times for 15 minutes, I consider that pretty reasonable.

Re:More lies?

[Telastyn]

No, it's _stupid_ for people to run sites that they cannot afford to. What happens to that $1-$2 CPM for popups when ad companies realise that nobody ever uses them, or everyone blocks them?

Re:More lies?

[mcpkaaos]

but $10000 seems incredibly steep.

Unless the penalty is harsh enough to do real damage to the offender, it will simply be chalked up as a cost of doing business and the purpose of the penalty will effectively be nullified.

In that light, I would argue that $10K might be a little on the low side.

Re:More lies?

[DarkBlackFox]

I'm not familiar with WhenU's software, but I find this hard to believe. Can this statement be defined with the same style of deceit that seems to encompass adware companies? Anyone who knows of their spyware's habbit's please shed some light on this.


Well, many adware/spyware companies commonly make use of user ignorance to install software. They'll flash a popup bearing a blue screen and windows-like cryptic warning message saying "your system is not optimized" or "your system is vulnerable to spyware" or "your clock is not accurate." The unwitting user is tricked into thinking it's a legitimate windows error, and therefore uses their best judgement to deal with the situation. Usually they'll click the "OK" button just as they do with real windows messages. Then they are presented with some cryptic EULA (which 99% of people don't read anyway), and the next thing they know, they are bombarded with popups and their machine runs at less than 10% it's original speed.

I'd wager one of the politicians in Utah became infected with spyware, and the personal, first-hand experience with the obvious problems it presented led to this fine piece of legislation. Yes, it seems steep, but if it were anything less, it wouldn't send a strong enough message to the lamers that write this crap to deter them from doing it.

Re:More lies?

[PurpleFloyd]

A quick Google reveals this information on their practices [doxdesk.com]. Executive summary:

• Installation: It's bundled with several programs. Based on general experience, I'd say it's probably buried somewhere in the EULA, but I don't know the specifics of how it's installed.
• Advertising: Displays pop-up ads, monitors keywords and displays advertising based on what you see and type. Also hijacks referrer links.
• Privacy: Sends back the term which triggered the ad and the ID of the affiliate software which installed Whe

Re:More lies?

[minektur]

What you're not getting is that while this behavior may not be unconstitutional, that restricting it isn't either. Companies do not have a CONSTITUTIONAL right to advertized in any way they choose. It is a plain legal fact that municipalities, states, and the federal government, have the right to control business behavior. Close to every city will have laws about the types, sizes, and locations of signs that a business can put up for instance. Heck we have laws saying certain types of business are compl

You've got to be kidding me?! Rights?!

[shakamojo]

Give me a break! Their argument is ridiculous! The "right to advertise"?! When they're using MY hard drive, MY CPU cycles, and MY bandwidth to do it?! If some brick-and-mortar company spray painted their ads on the side of my house, or hooked up the lighting for their billboard to my electrical socket, then surely that's not protected under the "right to advertise"... especially if they are using ads that are "stolen" from their competitors...

I'm not saying that this is a great law, especially since it's basically one advertiser fighting against another advertiser, but still, enough with the constitutional rhetoric already, what we're talking about is people hijacking personal property, be it my computer or some other company's advertisements! Just give me a choice (even if it's buried in the EULA) and get on with it! Like it's that hard to throw in a window saying "Do you want to install this?"

Re:You've got to be kidding me?! Rights?!

[shadowcabbit]

Like it's that hard to throw in a window saying "Do you want to install this?"

No, that's actually the easy part. The hard part is getting the window to show up AFTER the spyware's already been installed, and rigging it so that clicking "no" destroys the ability to uninstall it.

God dammit, I'd better shut up before some jackhole actually implements this...

Re:You've got to be kidding me?! Rights?!

[shakamojo]

Oh, my bad, you've actually got a point there! Actually, now that I think about it, the "spending significant sums to comply with the act (thereby reducing the effectiveness of its business)" probably has more to do with the fact that their business model is based on duping their "customers" and they'll have to reorganize the whole company around this law.

Re:You've got to be kidding me?! Rights?!

[WormholeFiend]

"If some brick-and-mortar company spray painted their ads on the side of my house"

I think you're onto something there... *cough*

Ahem, can someone give me a list of spyware companies' addresses? I need some physical space to place a little advertising...

In other news...

[mwheeler01]

In other news: Microsoft sues the United States over antitrust laws....crap now I'm giving them ideas.

Re:this deserves a +1 Funny

[mwheeler01]

there is however a -1 overrated, which would be more to the point if you didn't like my humor.

Let me check

[hambonewilkins]

Reading U.S. Constitution, wait... there it is:

Congress shall enact no law which prevents a company, firm, organization or political party from annoying the living hell out of you with advertising. Firms may use technologies existing or not yet existing to "blast" consumers with advertisements or steal personal information.

Funny how I missed that earlier!

Re:Let me check

[BladesP9]

I bet what they're going to try and say is that the state is infringing upon their freedom of speech... which is a complete crock because there are many avenues under which they could get their message out without essentially hijacking a person's internet experience.

The constitution guarantees you the right to free of speech, but not the right to be heard.

Re:Let me check

[tds67]

Wait...here it is:

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the adware and spyware people.

Re:Let me check

[yo303]

Your constitutional right to advertise, like your constitutional right to swing your fist, ends at my nose and my CPU, hard drive and bandwidth.

yo.

Curious

[dipipanone]

Which particular section of the US constitution are they referring to? I don't recall anything in there about the right to spam, the right to install spyware or the write to take over someone else's computer in pursuit of the almighty dollar -- but as a UK citizen I admit to not having read it as closely as a US citizen may have done.

Re:Curious

[oolon]

I assume they mean the right of free speech. Its odd how oftain people claim the right to free speech yet mistake it for the right to force people to listen to what they say, forcing people to listen is infact exactly what adware does!

James

Re:Curious

[Anthony Boyd]

Which particular section of the US constitution are they referring to?

Well, I have a pocket-sized version of the Declaration of Independence and US Constitution that I carry with me. I'm flipping through it right now to see what it has to say. Article 1, Section 8 of the Constitution says that Congress (at the Federal level) has the right to regulate Commerce among States. It doesn't mention what the State level can do, but it's an interesting precendent. Amendment 1 says our right to free speech can

The problem

[Unknown Kadath]

is that US law regards corporations as persons, with rights. While I'm not clear whether or not they are considered "artificial" persons (as distinguished from "natural" persons) and thus their rights would in theory be held subordinate to those of natural persons, corporations can afford better lawyers. In a court system where the smoothest-talking legal team often prevails, you can see the problem.

In this case, a corporation is claiming free speech protections under the First Amendment...which is a loa

Re:Curious

[Ironsides]

Never studied the US Constitution in school. But i keep a copy with me where ever I go. Makes for great reading when I can point out to someone that something the president is doing is in the constitution and not impeachable as they have heard others claim. (SEE apointment of judges, when congress is in recess. Clinton, Bush)

I hope this doesn't set precedents for virusmakers

[jamonterrell]

Imagine if WhenU wins. I can just see the massive amounts of viral spam that will flood the internet. People will begin writing viruses for the sole purpose of spreading their advertisements. No longer will they just mislead and trick helpless users into installing their "applications," but also they'll be proactive and force people to install their "applications" by exploiting bugs in common e-mail clients and internet browsers.

The good side is that the problem is self healing. If they lose, no problem it's all good. If they win, spammers will take it too far and it will get repealed.

Re:I hope this doesn't set precedents for virusmak

[jamonterrell]

If WhenU wins the court will make a statement which will limit what laws the government are allowed to make. They're near viral already. Have you ever tried to remove one of the bad ones using "Add/remove programs?" It simply re-installs itself as a different name. That's VERY borderline viral already. They also use misleading popups to install themselves. Some will install using the plugin-style remark, "You need to download and install this plug-in for internet explorer in order to view the current webpage."

If they win, they will do things like the following scenario with a particularly unskilled computer user, we'll call him "Cloobie":
1.) Cloobie searches the web for a program to synchronize his computer's clock to a standard source.
2.) Cloobie gets stuck in a recursive pop-up asking for authorization to install a piece of software, once he gives up, and agrees he sees a 500 page EULA stating that the software has to right to do basically whatever it wants and he agrees to allow it.
3.) Cloobie is happy, he has found what he wanted.
4.) Cloobie happens to be on a company-owned computer and the software writes itself to all open shares, doing techniques like renaming other executable files and taking their names. The program silently installs on anyone's computer who runs the executables, and then the executable simply passes on to the real app they wanted to run.

End result is a virus that could technically be construed as legal, even if on shakey ground.

Maybe

[elasticwings]

Maybe, if they didn't have their software installed unwantingly by hidden methods of attaching to other software and trick pop-ups, then they wouldn't have laws passed against them. Of course, at the same time, nobody in their right mind would install their crap. I mean seriously, who would be excited about some new freeware they found that redirects their surfing and increases their amount of popup ads. Even when they don't have a browser open.

Before anyone tries to claim the first ammendment

[Anonymous Coward]

The Supreme Court has ruled numerous times that commercial speech (advertising) can be restricted. It's not the same as political speech which gets a much higher level of protection.

Re:Before anyone tries to claim the first ammendme

[Anonymous Coward]

Here's an explanation of government regulation of commercial speech [umkc.edu].

The most notable case is Central Hudson Gas & Electric v Public Service Commission, which resulted in the Central Hundson test:

"

The Central Hudson test recognizes the constitutionality of regulations restricting advertising that concerns an illegal product or service, or which is deceptive. For all other restrictions on commercial speech, however, the Court's test requires that the government show that the regulation directly advances an important interest and is no more restrictive of speech than necessary."

Lawmakers that are anti-spyware would likely consider it deceptive.

Protected right to advertise?

[LordZardoz]

Do they actually provide any measurable service to the users who use their product?

They sell advertising. Advertising is legal. But in order to sell advertising, they have to own or otherwise pay for the right to use the medium that they use to advertise.

If you own a building with a billboard, you can sell that space.

If you provide some form of media (print, tv, movies, or internet), you can sell advertising.

This company and others like it, do not own your pc, they are not your ISP, and they are (probably?) not providing some form of service to you.

So what right do they have to advertise to you, or sell information from your PC, beyond the end user being stupid enough to agree to some liscence?

END COMMUNICATION

Re:Protected right to advertise?

[nizo]

...beyond the end user being stupid enough to agree to some liscence?

You think people are mad now, just wait until they start showing up at people's doors to collect their firstborn children. What, you didn't read the 10 page license??

Re:Protected right to advertise?

[TykeClone]

Are you trying to say that I can't sell advertisers space on your living room wall, just because I don't own it?

Seems to me that's what these adware programs do - they sell advertising space that they have no right to by generating popups unrelated to the users browsing.

If They Want to Play The Constitutional Card...

[tealover]

then I think they are playing with fire, because it can easily be alleged that they are violating other constitutional rights such as rights to privacy and protection from unreasonable search.

You see, if they want to make bogus charges, we can too.

P.S. IANACLBIDSAAHELN

(I am not a constitutional lawyer but i did stay at a Holiday Express Last Night)

"Right to privacy" is not mentioned in Const...

[Xhad]

...and the Bill of Rights is directed at the government, not individuals.

Rights Override

[Anonymous Coward]

The right to annoy doesn't superceed the right to advertise.

Ever.

Biggest computer hijackers around

[Ozor]

This company produces one of the hardest spyware / adware program to get rid off (Save and Weathercast) I've spen days fixing computer with there software installed. Can I send them a bill for all the trouble they have cost my company. People click the EULA but give them an option to uninstall the software and not hijack the machine.

Finally

[Dr. Cody]

Well it's about time that the Constitution started protecting the things near and dear to me.

Wah!

[Mycroft_514]

We can't spam you using your system anymore, we might have to go develop a REAL business model.

Pay attention you. The people have spoken adn we don't want you.

49 states to go.

Out of Control

[$lingBlade]

This shit is getting out of control. I'm all for *free speech* if such a thing truly exists anymore, but christ when are these companies and the US government going to wake up? Everything going on now seems to be a fight for control more than a fight for rights... or perhaps it's the inherent nature of capitalist businesses to feel that it's their *right* to make money regardless of how, whom they affect or where they want to draw income.

Companies want to control what you download, they want to control w

Right to advertice?

[WegianWarrior]

Yikes... I mean... what 'right' do they have to invide our privacy? To use bandwidth other people pay for to try to sell whatever junk they are peddling?

It reminds me of a sci-fi story I read a few years back, in which society was totaly taken over by capitalist forces... I can't recall much of the plot sadly, but I do recall one of the main characters beeing punished for owning a set of earplugs and therefore 'stealing' time form the companies by not listening to the non stop comercals on the radio.

It's free speech again, in a way. The company may have a right to say whatver they want, but I have a right not to listen... and I have the right to throw them out of my home, and my computer. And now an entire state in the US has, in a way, thrown them out of their home.

Whats next? A company claiming the right to paint ads in your livingroom?

New slogan...

[Obiwan Kenobi]

Because, WhenU install our spyware, U Be Screwed! ...and we need to protect that.

What a PITA to find the bill text.

[oneiros27]

For anyone who's interested in the actual text of the bill (now law, I guess), it's not yet in Utah's laegal database, only the listing of current bills.

• http://www.le.state.ut.us/%7E2004/htmdoc/hbillhtm/ HB0323.htm [state.ut.us]

I just thought I'd share, so no one else has to waste their time looking for it. (I haven't read it yet, however)

Fighting fire with fire.

[lounger540]

I consider spyware and adware publishers to vandalists. I work at the help desk at my local ISP and I spend more time explaining to people what spyware is and why we can't fix their computers for them then anything else. Sure many times you have to click shady license agreements, but I myself have personally seen how easy it is to be bombarded with illegitimate software. I run spybot and Adaware often and use the immunization features and usually only browse with Firefox yet last week I still got "infected" with 5 different spyware apps simultaneously. They killed my Winsock stack. Luckily I know how to repair XP with my eyes closed but to 99% of the users out there this would send them running to a computer repair shop with their wallets open. Unfortunately, most users are ignorant that spyware even exists and blame their manufacture or worse, their ISP, for their computer slowing to a crawl. They don't understand that a microchip doesn't deteriorate with age, but the software running on it sure can. It's pretty sad when I have to tell a 90 year old woman trying to get her grandkids emails that she has to find someone else to fix her PC for her because she downloaded software to make her IE have pretty skins. Advertising is one thing if you agree to it as a means to keep consumer costs down, but when those ads corrupt a computer to useless that's not very cost effective. My company is thinking about charging to support spyware repairs but you don't want to even know how much that'll cost granny. For now I guess it's just sorry, but we can't support that. (We're not really mean about it, we often spend many hours in Regedit or MSConfig but there's only so much you can tell a novice over the phone plus time is money. We have real network issues to fix first.)

Not All Laws are Good (or Effective)

[Bilbo]

I agree with your statements about spyware, however the problem is that it is non-trivial to define what exactly "Spyware" is. Some people have already claimed that, under the current definition of the law in question here, browser cookies could be defined as "spyware".

Point is, there are plenty of poorly written laws out there, put in place by good intended people to curb "bad" behavior, which have been turned on their heads, and end up doing just the opposite of what their authors thought they would do

Interstate Commerce??

[Sergeant Beavis]

Wouldn't a NY company putting advertising on a Utah PC be considered interestate commerce and thus not regulated by the states in accordance with the Constitution? I'm inclined think so but I'm certainly no expert on the matter. Would any of the geek lawyers care to comment.

If your wondering, no I have no love for any spy/malware company. I'm just seeking clarification.

constitutional right to advertise?

[rufey]

I don't recall the US constitution saying anything about the right to advertise...

It seems that in today's world, everything is tied to the first amendment of the US Constitution - the right to free speech. While advertisers have the right to free speech, they certainly don't have the right to force me to fork over money in order for them to exercise that right. I pay for my bandwidth. I own my computer. Its my personal property. I paid for that stuff. Advertisers can't simply stick a billboard in

Millions of dollars wasted....

[NIN1385]

I for one can say that spyware companies have cost our company at least 200+ hours of my time of un-installing them and running ad-aware, which still doesn't even get rid of all of them. We ran ad-aware on a computer the other day and found 560 something pieces of spyware, now how come we cannot sue these companies for costing others time and money? We do the same thing if somebody defaces property, we make them pay for it so we don't have to waste our time and money on it. I am just waiting for someone to sue these companies, my bosses are both lawyers and I will be pressing them to do the same if someone else does it to show that it can be done!

oh brother...

[panic911]

constitutionally-protected right to advertise

What about our constitutionally-protected right regarding invasion of our privacy?

It's absurd that these companies can legally install applications on everyones machines and data-mine information without ever getting the users permission. Utah has always been kind of the bastard step-child of the US - nothing good ever comes out of it (Mormans, SCO, etc), but I back them 100% on this one!

I'll believe they have that right

[ShatteredDream]

When they also show me in the text of the Constitution where it says they have a right to violate private property to advertise. Last I checked there is this often abused amendment, number ten to be specific, which reserves all property rights powers to the people and states.....

I swear to God, if there was a gene for this kind of legalistic stupidity I would violate my principles as a voting libertarian and constitution party supporter and call for a nation-wide eugenics program.

No Net Erosion of Constitution

[4of12]

constitutionally-protected right to advertise.

is the new constitutional right that will replace that tired old 4th amendment right not to be subject to unreasonable search and seizure.

The price was right and the powers that be figured they ought to give the people a new amendment in place of the old one (if anyone counts the total number will be the same) that was getting nullified by recent legislation.

Wait.

My mistake.

You do get an additional constitutional amendment protecting you from gay people calling themselves legally married.

Just don't say the constitution is being eroded, no sir.

We're getting more constitutional protections, not less.

Where do you find lawyers that argue this stuff?

[Anonymous Coward]

"constitutionally protected right to advertise". Did I miss that one? Let's just hope some misguided lawmakers don't decide to combine that with the "right to bear arms". Or arm bears.

Too Bad

[rgmoore]

I was trying to see WhenU's side of the story by looking at . Unfortunately, when I tried to go there, my company popped up its standard "We can't let you see this web site" message. The blocking category? "Spyware". Apparenly the State of Utah is not the only group that classifies WhenU that way. [whenu.com]

Goes both ways

[JohnGrahamCumming]

You know if WhenU claims a "right" to use my PC (that I paid for) for its advertising purposes, then I think I'm gonna claim a "right" to go pee on WhenU CEO's desk.

My PC is not a billboard, your desk is not a toilet. OK?

John.

Pending U.S. Senate Bills

[David Hume]

If WhenU.com [whenu.com] is unhappy about Utah law, I can only imagine how they will respond if either the proposed Software Principles Yielding Better Levels of Consumer Knowledge (SPYBLOCK) Act [loc.gov] or the Controlling Invasive and Unauthorized Software Act [loc.gov] is passed and signed into law.

These bills have been covered by:

PC World [pcworld.com]

InfoWorld [infoworld.com]

ComputerWorld [infoworld.com], and

TechNewsWorld [technewsworld.com]

There are already limits

[earthforce_1]

There are already legal limits to aggressive advertising, that are not considered to impinge free speech. To name a few:

- Posting monster billboards in residential neighbourhoods, even with the landwner's permission. (Except during elections)
- Phoning or ringing doorbells or standing in front of my house with a megaphone bellowing sales pitches at ungodly hours.
- Junk faxes
- Indecent, misleading or libellous ads, including those which appear to be regular traffic signs. (Road closed - detour through mall)
- Posting on private property without the owner's explicit permission.

I think this sort of thing is covered by the last case. If I send a 10 page flyer to your house that gives me permission to make unlimited use of your personal property unless you read the fine print on page 7 and mail it back to me within 10 days with the "NO" box ticked, no court in the land will accept this as implied permission. And it ought to be the case for spam/spyware as well.

Click-through agreements

[EMIce]

Now this isn't a troll, because common sense tells me that spyware should not be allowed to operate the way it does today, but... From legal perspective, don't users agree to install spyware and accept its activities via those click-through EULAs that come with various "free" downloads?

The issue seems not to be spyware, but not adequately warning users of what is being installed on their systems. It would seem to make more sense to pass legislation that requires standard, plainly and prominently shown notification of what habits a program tracks and what sort of advertising it does, shown on its own page before installation. A blanket ban seems a bit extreme.

On another note, spyware seems to invade my system even though I am pretty saavy and do all I can to avoid it. It would appear some companies take advantage of IE exploits to stick these things on my system, but I can't say for sure.

OK, you /. constitutional lawyers ...

[cascadingstylesheet]

... don't go all strict constructionist on me now!

The Right to Advertise is right in there, next to the Right to Private Abortions and the Right to Join The National Guard In Order To Bear Arms.

;)

fantastic

[sir_cello]

I fully support this case, because I'm sure WhenU will lose, and at the same time the courts opinion will be useful in further clarifying the nature of the rights in this area. Litigation like this is actually useful: as opposed to other places (like the UK, where I am) that trundle on for years with uncertainty about how things work.

Appropriate Punishment

[Karadryel]

I think the real issue with this law is that it doesn't appropriately punish offenders - after all, the punishment should fit the crime.

I promote, as an appropriate punishment for spyware, the shoe-crapping. Specifically, persons found in violation are required temporarily to cede their shoes to the state, during which time the attorney general is required to take a crap inside of said shoes. Following this, the shoes are returned to the offender.

Spyware == Petty Theft?

[Anonymous Coward]

Besides the invasion of privacy, spyware steals CPU cycles, disk space, and the productive value of the PC. As a Sys Admin, I am constantly battling spyware with "Drive-by" installs. The loss of business productivity is astounding.

Could the spyware companies be shut down using anti-racketeer laws (assuming they are located in the US)?

what whenu is and does.

[Deathlizard]

you probably know it more as savenow. a nasty varient of spyware. if you do a ctrl-alt-del and you see savenow in your process list, then you got it.

this site tells you what it does [spywareguide.com]

spybot and ad-aware both remove it if you got it on your PC

click here for spybotSD [spybot.info]
For Ad-Aware. [lavasoftusa.com]

Spyware

[Vexware]

This post may be understood as flamebait by those who do barely try to see things from my point of view, but I can brace myself up against that. The issue is, I do not really see where some peoples' complaints against major advertising companies lie, as it seems apparent to me that the softwares' privacy policy has always been available to the end-user. Out of curiosity, I visited WhenU's site [whenu.com] to verify whether or not there was truely a case of non-consent on the behalf of the user, and of breach of the user's privacy. WhenU's privacy policy [whenu.com] is freely available on their site, and for the lazy among you, these are basically the most important paragraphs:

By downloading the SaveNow software, you give permission to WhenU.com to display relevant contextual information and offers. The SaveNow software selects which ads and offers to display to individual users based on several factors, including: URLs associated with Web pages visited by the user, search terms typed by the user into search engines, HTML content of the Web pages viewed by the user and the local zip code of the user.

The software protects users' privacy by uploading a database of content in small chunks to individual desktops, and then determining on the desktop whether to retrieve information from WhenU.com or third-party servers. To protect user privacy, the same database of content is sent to all desktops. Decisions regarding which ads to retrieve to an individual desktop are all processed on the user's desktop - and isolated from WhenU.com servers. User privacy is also protected in the following manner:

1) Personally-identifiable information is NOT required in order to use the software and WhenU.com does NOT know the identity of individual users of the software
2) As the user surfs the Internet, URLS visited by the user (i.e. the user's "clickstream data") are NOT transmitted to WhenU.com or any third party server
3) WhenU.com does NOT assemble personally-identifiable browsing profiles of users
4) WhenU.com does NOT assemble anonymous machine-identifiable browsing profiles of individual users
5) WhenU.com does NOT track which ads and offers are seen or clicked on by individual machines - analysis and tracking is done in the aggregate.

So far, so "clean" -- WhenU.com informs the user of the information that is sent to WhenU.com, and also details which information is not used, and when the required information is sent. Although, my cynicism pushed me to download the SaveNow software just to check whether or not there were some strings attached with the software itself; on installation, I read the privacy statement which was completely identical.

So, according to this privacy statement the user consents to installing the software and subsequently to have the said software make use of the user's bandwidth to send anonymous usage statistics to WhenU.com and download advertising banners corresponding to the profile built with the anonymous information. I hastedly repeated the small research for Claria software [claria.com] (formerly GATOR software) and the results are pretty much identical -- the user consents to installing the program and have it use bandwidth to send anonymous information to Internet servers. So the major desktop advertising comapnies are sadly pretty much right when the affirm that the user is consenting to their software using their computer to perform various tasks and activities. Now the question which is preponderant in my mind is: what am I doing wrong here? There must be a further reason for everyone complaining about a breach of privacy, further than the statements in the privacy policies then -- but if the information in the privacy policies is invalid, doesn't that make the activity of these companies illegal?

Anatomy of a privacy policy

[mabu]

The software protects users' privacy by uploading a database of content in small chunks to individual desktops, and then determining on the desktop whether to retrieve information from WhenU.com or third-party servers. To protect user privacy, the same database of content is sent to all desktops. Decisions regarding which ads to retrieve to an individual desktop are all processed on the user's desktop - and isolated from WhenU.com servers.

NOTE: It does NOT say the results of these decisions are not sent back to WhenU's servers. It merely states the "decisions regarding which ads to retrieve to an individual desktop are processed on the user's desktop". This reveals:

1. They are choosing to expend the user's processing/memory resources to make these decisions in lieu of their own network. That's more of a lets-waste-the-user's-resources-instead-of-our-own rather than a privacy issue. Bill O'Reilly would be proud of that spin.

2. They are not explicitly saying they aren't collecting detailed info on the criteria used to make a decision; merely that the decision is being made locally. The words are twisted in such a way as to give the user the false impression that they are somehow protected when they are not.

3. They can at any time, elect to pull content from WhenU's servers instead of the localized database, which in effect sends the decision information to WhenU and worse, unnamed "third parties".

User privacy is also protected in the following manner:

1) Personally-identifiable information is NOT required in order to use the software and

All they say here is the info is "not required" - which is meaningless. It doesn't say they won't try to acquire personal information, which they obviously will.

WhenU.com does NOT know the identity of individual users of the software

1. This is a red herring. They can easily collect enough information to qualify the individual identity of the user, but they can claim that even with all this information, there is no guarantee [ever] of knowing whether the information is accurate, therefore they "do NOT know the identity".

The important thing to note here is, they are merely claiming they "do not know the identity"; they're not saying they "WILL not seek the identity", or "will not collect personally identifiable information". They will and they do, but if you ask them, they'll say, "Gosh, we really don't know if we could identify you based on the info we've collected..."

2) As the user surfs the Internet, URLS visited by the user (i.e. the user's "clickstream data") are NOT transmitted to WhenU.com or any third party server

This is a great example of the classic privacy policy snow-job. What they are leaving out is the three magic words which are implied: AT THIS TIME "URLs are not transmitted to WhenU.com". Because of the policy being subject to change at any time, this statement merely says right now they're not getting that info. It doesn't say they "will not ever" collect this information. Why not say that?

3) WhenU.com does NOT assemble personally-identifiable browsing profiles of users
4) WhenU.com does NOT assemble anonymous machine-identifiable browsing profiles of individual users
5) WhenU.com does NOT track which ads and offers are seen or clicked on by individual machines - analysis and tracking is done in the aggregate.

Again, more of the same. "Here's what we're doing RIGHT NOW" - it doesn't mean that tomorrow we won't be giving your personal info to every Herbalife distributor in North America, but right now we don't do that. Hooray! Yea, sign me up!

Cockroaches

[t_allardyce]

Spyware = Virus/Trojan, the only difference is that spyware usually mentions itself on page 33 in 6pt font in the EULA for the software that it comes with and it has an uninstall program which usually forces you to visit their site first so they can threaten you and tell you how your computer will break down if you continue to uninstall their software. Then once you download the uninstaller (for fucks sake why doesnt the uninstaller thats registered under windows actually uninstall the software instead of taking you to a website??) you can uninstall the program,but still not be sure in the back of your mind if it actually uninstalled.

What i want to do is write my own 50 page EULA and get some politician and the head of a spy-ware company to agree without reading it, then they will feel the wrath as i suddenly own them and their kids - hey if they want to dispute it fine, but that means their EULA is null and void too and i can sue them back!

No constitutional right to ads

[miraclemax]

There is NOTHING in the constitution about a 'right to advertise'. There is a right to free speech (basically free opinion and expression) but this does not extend in any way to advertising. Even the freedom of speech does not guarantee a platform for that speech--you may have to provide your own. That is to say, you're free to your opinion, free to voice it if you can provide the means, but that does not extend to these ridiculous interpretations that keep popping up. Any businesses in Utah that join this suit, I suggest everyone notify them that we will no longer be using their services.

Consitutional right to advertise???

[mark-t]

AFAIK, constitutional rights apply to _people_, not corporate entities... so forgive me if I'm a little confused about this, but exactly which constitutional ammendment are they referring to here?

Re:Consitutional right to advertise???

[Jason Ford]

Corporations ARE people. I won't blame you for not knowing this, since it happened way before you were born (SANTA CLARA COUNTY v. SOUTHERN PACIFIC RAILROAD COMPANY, 1886.) A clerk's misleading notes on this Supreme Court ruling were later used to support the notion of "corporate personhood."

You can read more about it here. [reclaimdemocracy.org]

Corporations cannot use 'bill of rights'

[TheRealStyro]

Corporations cannot use the 'bill of rights' since corporations have never explicitly been given any 'rights'. There have been judgements that have caused mass delusions within the legal profession that corporations have 'rights', but no changes have been made to the constitution to grant same 'rights' to corporations as those of citizens.

Corporations should-not/cannot be given the same rights as citizens. Corporations cannot be held to equal responsibilities as citizens, nor can be punished to equal measurements to citizens. Corporations have much more resources available to utilize the legal and/or government systems to their own purposes. The people responsible for running of corporations are not held responsible nor punished as harshly when found guilty.

-1, Wrong...

[Kjella]

They do. Check out Santa Clara County v. Southern Pacific Railroad Company, 1886.

And for the most part, that is a good thing, not a bad one. Sure you can't discriminate based on race, but what if I could discriminate companies based on your employees race? And they deserve most of the basic rights like protection from illegal search and seizure, right to a trial and so on.

What has been held to a higher standard is commercial speech, otherwise they could use all sorts of false and deceptive marketing. Or well, comparing with the rest of the world, perhaps I should say political speech is held to an incredibly low standard.

In the US, you can state things that in most of Europe would be considered illegal racist speech (think of is as class action libel/slander) or illegal false or deceptive political speech, like Holocaust deniers. But then again the US has never had to deal with it quite like we have.

I can't wait until someone starts claiming 9/11 didn't happen, but was all staged by the US as an excuse to attack the Arab world or some such non-sense. Once you start proclaiming that as "fact", I think you might be in for a vacation in Guantanamo Bay quite soon...

Kjella

Companies in Utah

[Glamdrlng]

Dude, wtf is up with software companies in UT? Are there any software companies in the state whose business model doesn't involve prosecuting|compromising|raping their customers?

Why doesn't generic anti-virus stop spyware, too?

[swb]

Can someone explain that to me?

OK, so spyware is in a mostly different category than viruses, but doesn't it seem odd that the companies with the greatest experience in scanning computers looking for software haven't moved into the market dominated by smaller companies/freeware?

I think it would be a HUGE seller to corporations who lose of a ton of productivity to this crap. I know I'd push it in a heartbeat if it was available, as would others.

So why does McAfee or Norton do this? I know it's not a conspiracy -- but it really feels like one.

if they maintain the "right" to advertise...

[bbdd]

if they maintain the "constitutionally-protected right" to advertise, then i maintain the right to bear arms against fools like this...