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Judge Halts Utah's Spyware Law 390

Posted by timothy
from the people-love-us-your-honor dept.
TheFarmerInTheDell writes "According to CNet News, a judge in Utah has granted an injunction to WhenU.com to temporarily halt the state's new anti-spyware law from going into effect. WhenU filed suit in April asking for an injunction, and this judge has decided that their claim of abridging their First Amendment Rights has enough merit to issue the injunction. What about our rights not to have to deal with this scumware?" (This previous post mentions Ben Edelman's research on WhenU and other spyware makers' activities.)
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Judge Halts Utah's Spyware Law

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  • Free speech? (Score:5, Interesting)

    by KoriaDesevis (781774) <{moc.oohay} {ta} {sivesedairok}> on Wednesday June 23, 2004 @09:31AM (#9506220) Journal

    So when does their 'right to free speech' end and my right to be left alone on my personal computer, in my private residence, begin?

    • So when does their 'right to free speech' end and my right to be left alone on my personal computer, in my private residence, begin?

      The boundaries need a little proactive adjustment...

      I say we install a few spyware of our own into WhenU's servers and see how WhenU likes it.
      • Injunct them from injuncting because their injunction continues to impede the safety and freedom with which you speak. That should carry at least as much weight as their own claim to free speech. There is another important priciple at stake, which is:
        A man's liberty must be thus far curtailed: me must not make a nuisance of himself to others.
        Recognise that?
    • Re:Free speech? (Score:5, Insightful)

      by ukalum (682310) on Wednesday June 23, 2004 @09:34AM (#9506248)
      Their right to put software on your computer will last a lot longer than your rights as a private citizen as long as they spend more money on political parties than you do.
    • Re:Free speech? (Score:3, Insightful)

      by Anonymous Coward
      This might be a troll, but...

      They have a clearly delineated right to free speech. Protected in the courts, established in the Constitution.

      You on the other hand have a _need_. A need to be left alone which is not privacy and is not protected (yet).

      Yes, we'd all like to have the spammers and spywarers shot, drawn, quartered, and flayed, and maybe even in that order. However, until the laws and/or constitution is changed, please refrain from whining about your right.
      • Re:Free speech? (Score:4, Insightful)

        by gcaseye6677 (694805) on Wednesday June 23, 2004 @09:53AM (#9506482)
        So if I come in your living room and start shouting and then you try to kick me out, are my first amendment rights being violated? After all, you have no constitutional right to a quiet living room, just a desire.
      • Re:Free speech? (Score:4, Insightful)

        by Dinosaur Neil (86204) on Wednesday June 23, 2004 @10:58AM (#9507207)

        Congress shall make no law...abridging the freedom of speech...

        That's the abridged version, but the intent is as obvious as it is simple. The people who put the constitution together were worried that a government that suppresses free speech would become the same sort oppressive state they'd just fought a revolution to escape.

        But notice this; while the constitution grants free speech, it does not guarantee that you will have an audience! The government can't (well, shouldn't, at least) stop free speech, but when someone says specifically and emphatically that they don't want to hear it, then the intrusive speech is an invasion of privacy.

        As far as spyware goes, I think it would be poetic justice if everyone who's been dinged by spyware charge the people responsible with theft a la the "Hacker Crackdown" of yore. If Ma Bell can claim millions of $$ for a single document "theft", imagine what the general populace could get for spyware activity. Alternately, just charge the spyware people as "peeping toms", spying though (ahem) Windows. Keep it simple and take advantage of existing laws...

    • Re:Free speech? (Score:4, Insightful)

      by Anonymous Coward on Wednesday June 23, 2004 @09:42AM (#9506349)
      When you clicked "Yes", their right began.
    • Re:Free speech? (Score:5, Insightful)

      by orthogonal (588627) on Wednesday June 23, 2004 @09:53AM (#9506475) Journal
      So when does their 'right to free speech' end and my right to be left alone on my personal computer, in my private residence, begin?

      No one is forcing you to install WhenU's software.

      And one can imagine customers who might knowingly and willingly install WhenU's software because they perceive a benefit to doing so: Google's toolbar might be considered spyware -- it sends every url you browse to Google; but you receive the benefit of getting Google's page rank for the url, and Google gets the benefit of seeing who is browsing where.

      Now, if the software tells you honestly that it's sending information about you to its creators, or sending ads to you, you have a remedy that requires no law, no governmental action: you can decide to uninstall the software. If the software spies or spams you without telling you honestly that it's doing so, you have a remedy in the form of existing laws against fraud or the like -- or possibly new laws that more narrowly target deceptive software.

      But none of these remedies require intruding on First amendment rights. So why do we need an overly-broad law that does?\

      First Amendment (and many would argue, Second Amendment) rights are the cornerstone of all other rights: the First Amendment exists to guarantee that you can stand up, get together like minded citizens, and explain why you think the government is not doing the right thing (and the Second, to have the mens to resist tyrannical government, but let's no digress). Since without that right, all other rights can be trampled without anyone having a chance to speak up about it, it's very very important to make sure that right isn't infringed even a little bit.

      So in order to preserve that right from tampering, we -- as free men -- have to also put up with things -- Ku Klux Klan rallies, spam, WhenU's software -- that we may detest. Because the cure is far worse than the disease. Once we let government say there exists a class of things that can't be talked about, we risk that class be extended or used as a precedent to stop people from pointing out when the Emperor has no clothes.

      I'm sorry for the inconvenience, but I'll take WhenU's spam over some Ministry of Truth's deciding what can't be said, any day.
      • Re:Free speech? (Score:4, Insightful)

        by Fulcrum of Evil (560260) on Wednesday June 23, 2004 @10:05AM (#9506620)

        Google's toolbar might be considered spyware -- it sends every url you browse to Google; but you receive the benefit of getting Google's page rank for the url, and Google gets the benefit of seeing who is browsing where.

        No it can't. Google is up front about what they do and when. Spyware, by definition, is not. It also tends not to warn you when it installs itself.

        you can decide to uninstall the software.

        Try to uninstall Gator sometime. Then try to uninstall that coolsearch disease from russia.

        I'll take WhenU's spam over some Ministry of Truth's deciding what can't be said, any day.

        And I will deny that WhenU has any right to any speech on my computer. It operates at my whim and for no other reason.

      • Re:Free speech? (Score:3, Insightful)

        by qtothemax (766603)
        I could not aggree more. Making new laws forbidding things is very rarely the best course or action. All of you would be up in arms if there was a law against somthing you supported. Just because somthing is not popular does not mean it should be illegal. Open source software is not popular among the propriatary gang, and they ARE attacking the legality of the GPL. If one type of software that you incidently dont have to pay [money] for is banned, it may add fuel to that fire. There are two things tha
      • Re:Free speech? (Score:4, Interesting)

        by Egekrusher2K (610429) on Wednesday June 23, 2004 @10:22AM (#9506837) Homepage

        "If the software spies or spams you without telling you honestly that it's doing so, you have a remedy in the form of existing laws against fraud or the like -- or possibly new laws that more narrowly target deceptive software."

        Oh really? Have you read about anyone successfully pursuing this? These cases don't even make it to court. The laws on fraud, for some strange reason, don't apply here. Try telling a lawyer that you want to sue a company because they installed software on your computer without your consent, and they are going to laugh at you.

        Now, don't get me wrong. What you said is valid in theory. However, the execution of these laws is very, very poor.

      • Re:Free speech? (Score:3, Insightful)

        by bcmm (768152)
        Sorry to quibble, but the Google toolbar offers a clear option at install time to either use or not use the "spyware" component.
      • Re:Free speech? (Score:5, Insightful)

        by Cyno01 (573917) <Cyno01@hotmail.com> on Wednesday June 23, 2004 @10:54AM (#9507169) Homepage
        Speech for profit (advertising) is not protected by the first amendment. And especially not in your own home, on your machine, with your bandwidth being used. Also, you are correct, no one forces us to install this software. It does it itself. I'm sure there are people out there that use the features that bonzai buddy or anything have to offer, but do you think they searched and activly downloaded it? Joe and jane user were probably like "It just appeared one day, isn't that neat."... People who run around putting stickers on bus stops and street signs can be charged with vandalism. How is this different?
      • Excuse me? (Score:4, Informative)

        by Featureless (599963) on Wednesday June 23, 2004 @11:22AM (#9507485) Journal
        Excuse me?

        Spyware vendors generally attempt to deceive users into installing their products using a variety of ruses that would be unlikely to withstand the scrutiny of a civil court. Most spyware scams rest on the twin pillars of egregiously onerous "fine print" in legally specious (and generally unenforceable) "click-wrap" licenses (and that's if they didn't just sneak in without asking at all), and false advertising.

        A good judge would hold with common sense - that allowing spyware is both practically speaking a bad idea (since, just like spam did for email, once we allow it, it will render computers unusable as it scales upwards) and a classic scam, from the point of view of common law, which still holds onto antiquated ideas about contracts needing the informed consent of both parties, and the reasonable expectations of a consumer.

        If I knock on your door and say "flowers" and then when you open it burst inside and start hanging advertisements and planting hidden listening devices, this is not a constitionally protected activity any more than selling snake oil or engaging in a protection racket.

        This is leaving aside the many privacy protecetions which have easily trumped "first amendment" protections in the past - the many enshrined confidences of the lawyer, the doctor, and even the video rental store. I would suggest that the more outrageous the conduct of the software (i.e. spyware) the more difficult it would be to demonstrate that the user had engaged it willingly... to the point that for many kinds of conduct, we simply don't permit it at all, out of common sense or common decency - hence, our rules against usury (i.e. outrageous interest rates) and gambling - classic ways to prey on the innocent and ignorant.... or even just allowing the phone company to sell your detailed phone records.

        Of course, if you're such a laissez faire first amendment purist, I'm sure you support pornography on saturday morning TV?
      • Re:Free speech? (Score:5, Insightful)

        by Karl Cocknozzle (514413) <kcocknozzle&hotmail,com> on Wednesday June 23, 2004 @11:55AM (#9507932) Homepage

        No one is forcing you to install WhenU's software.

        Maybe this is true, maybe it isn't. We've seen countless examples in our organization of a user getting a pop-up ad for "Free" software that claims to give them some sort of benefit, and watched in horror as clicking "No, thanks" installed the software anyway. Yes, we proactively block access to the servers and IP ranges of known spyware companies at the firewall, but this costs us time (and thus, money) to maintain. But since the scummers (scummer == spammer for the scumware universe) often have multiple hosting providers setup round-robin for load balancing, it is an on-going, ever shifting battle. If we over-react and ban access to a large hosting provider, we risk blocking legitimate traffic that flows through the same outfit.

        Perhaps this law should be repealed and re-written in such a way as to target only nefarious software packages (like "CoolSearch", the unremovable beast from Central Asia) while allowing honest vendors to market software based on advertisements. You're right when you say that freedom of speech allows us to speak out about attempts to restrict our other rights, but misguided to think that stopping marketers from essentially stealing people's personal information for their own gain somehow equates to a police state. You're intentionally not adressing the issue that I pay for my connection and PC, and therefore should have control of what is on it. And I shouldn't have to police my "Add/Remove" programs list every day, or run AdAware every time I boot up to guarantee that only the programs I want are on my machine.

        And one can imagine customers who might knowingly and willingly install WhenU's software because they perceive a benefit to doing so

        Any perceived benefit to these programs is probably the result of deceit and fraud. One can only imagine that people "knowingly and willingly" install it if you ignore every usablity study of the internet over the last few years. They've found that the #1 and #2 complaints of internet users are the number of ads, and the "unclosable-in-your-face" nature of pop-ups. On the side, I help small businesses with their networks and desktop machines. In the last year, the number of companies contacting me about spyware prevention has quintupled. Removing and preventing spyware now represents about 40% of my "on the side" income.

        If a user perceives a value to Gator, MyWebSearch, or coolsearch, it is only because they don't understand that these programs are the majority source of their biggest online annoyance. When I ask customers "Why did you install it?" the answer is, nearly every time, "I didn't know it would pop-up 1-million ads/harvest my surfing habits/log all of my keystrokes for the Russian mob."

        Perhaps these companies should rethink their business model. If people really "want" WhenU's products (or Gator's, or anybody elses) then they should have no problem with being required to, up-front, tell the user truthfully what the program does. Any complaint about having to disclose this information only proves their sleazy, underhanded intent.

        If the software spies or spams you without telling you honestly that it's doing so, you have a remedy in the form of existing laws against fraud or the like -- or possibly new laws that more narrowly target deceptive software.

        Despite the fact that spamming using other people's connections counts as fraud, theft, and possibly conversion, we saw exactly ZERO criminal prosecutions until a federal anti-spam law was passed. (That it is mostly ineffective is an argument for another thread.) At that point, law enforcement saw that they could get a prosecution, and started investigating and arresting people.

        There are probably a few reasons it took a federal law with criminal penalties to get somebody arrested and under the threat of imprisonment, but mainly its the fact that law enforcement is

    • You are free not to install the software that informs you that it is installing spyware/adware.

      Oh wait, I'm sorry, personal responsibility is not the American way anymore. Nowadays we need the government to make all our decisions for us. What food we eat, what medicine we take, and what software to install on our computers.

    • Exactly what constitutional amendment does "the right not to have to deal with this scumware" fall under? People talk about "rights" all the time without even realizing what are, and what are not protected-rights. For example, the "right" to education, and the "right" to healthcare do not exist, except that you are allowed to pursue these things freely without direct inhibition by your fellowman.

      I support the injunction, only because our [b]truly[/b] protected right to free speech are being acknowledged.
    • I would say that their 'right to free speech' concerning their right to place data on my hard drive is the same confused mis-representation of the 1st Amendment as thinking that someone's free speech means that I have to listen to them.

      Free Speech does NOT mean:
      1. I have to listen
      2. You get free use of any communications system.
      3. You can force people to pay attention to you.
      4. If I own a communications system or freq band that I should let eveyone with an opposing opinion spend the same amount
  • Villianous Scum (Score:4, Interesting)

    by nightsweat (604367) on Wednesday June 23, 2004 @09:31AM (#9506225)
    Isn't there an electronic no-tresspassing law? If not, shouldn't there be?
    • Consent is always a defense to trespass.

      The problem is that when these companies get your consent, they bury it in some end user license agreement that no one ever reads.

  • Utah Utah Utah.... (Score:4, Insightful)

    by davejenkins (99111) <slashdot@dave[ ]kins.com ['jen' in gap]> on Wednesday June 23, 2004 @09:34AM (#9506253) Homepage
    *sigh*
    I grew up there. It is a really nice place if you like the outdoors-- skiing in the mountains, hiking in the deserts, river rafting... But damn if the judges aren't screwy when it comes to protecting all sorts of hair-brained business schemes.

    Ya know all those herbal supplemental crap adverts in your spam? Half of those companies are based in Utah. Ya know all the data-mining goofiness going on? Those ding-dongs are ex-Novell clowns looking to cash in.

    Basically, if anyone can go before a judge and say that "Law X interferes with my right to potentially screw suckers out of their idiot cash", then that judge will slam that law into the ground. It's like they take the nasty edge of libertarianism in commerce but forget the rights of the individual privacy that go along with it.
  • by nebaz (453974) on Wednesday June 23, 2004 @09:35AM (#9506263)
    By putting spyware on the computer, they are in effect breaking and entering into your property. This is NOT a free speech issue, any more than someone spray painting on the side of your house is free speech. It is tresspassing.
    • Actually, you have to consent to install their software. Its the "I agree" button at the bottom of the 2000-word license that you carefully read. Spyware would be putting it on your computer by using an exploit.

      As for free speech, their claim is that delivering context-based ads is speech, which seems kind of a stretch. I guess they must mean "free as in beer".
    • They don't put anything on your PC, you put it there. Otherwise, they would be listed as a virus (your personal opinions aside, they do not technically qualify as a computer virus).
    • they are in effect breaking and entering into your property.

      Yes, but somewhere in there is a notice that they are doing so. It's more like someone breaking into your house after leaving a post-it note on your porch warning you of it ahead of time.

  • Umm... (Score:5, Insightful)

    by Anonymous Coward on Wednesday June 23, 2004 @09:36AM (#9506278)

    In response to:


    What about our rights not to have to deal with this scumware?

    I am not sure we have any such right really. Privacy is not a consitutional right. Laws have been passed to protect our privacy in certain situations and that is good. But there is nothing that makes our privacy an irrevocable right that would extend beyond what has been legislated. Utah did the right thing by passing this law since it strengthens individual privacy. The courts however should hear the case if free speech is at stake, which I doubt it is since most spyware doesn't talk to you or express itself cause that would reveal that it was there. So I think the legality issues need to play out, but I think we should all watch our tone since ignorance is a dangerous thing...

    • Re:Umm... (Score:5, Informative)

      by nightsweat (604367) on Wednesday June 23, 2004 @09:42AM (#9506344)
      Actually the courts have ruled in the past the 9th and 10th Amendment contain a right to privacy

      Amendment IX:
      The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

      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 people.
    • Re:Umm... (Score:5, Informative)

      by Durandal64 (658649) on Wednesday June 23, 2004 @09:45AM (#9506386)
      Yes, ignorance is a dangerous thing. In this case, it's dangerous because you didn't know that the Supreme Court interpreted the 4th amendment protections against unlawful search and seizure as implying a right to privacy, so the idea is perfectly valid.
      • A controversial and disputed opinion by the Supreme Court recognizing privacy rights beyond what the 4th amendment says in certain conditions is different from a "right to privacy" in the Constitution itself.
    • but I think we should all watch our tone since ignorance is a dangerous thing...

      screw that... tell me one thing that an angry mob has not been able to fix. ignorance or no ignorance.. it is not an issue with an angry mob!

      huh? huh?

      besides, EVERYONE likes to be in an angry mob.
    • You're so far off target it's quite scary that you believe what you believe. Rights not outlined in the Constitution are reserved for the people & state.

      As for software that surreptitiously installs itself on my equipment and performs actions I don't want. Yeah, there should be a law against that.

      You sir, scare me that you think this somehow inhibits free speech.

      Free speech != right to advertise anywhere. Nothing restricts this company from saying what they have to say, just what lengths they may go
  • First Ammendment (Score:2, Insightful)

    by meridian (16189)
    Where in the first ammendment does it say you shall have the right install software to spy on other people and ransack their private information
    • You have a right to voluntarily enter in a contract with someone in which you advertise goods in exchange for giving them a product or service they desire.
  • The DMCA Defence (Score:5, Insightful)

    by ObsessiveMathsFreak (773371) <obsessivemathsfreakNO@SPAMeircom.net> on Wednesday June 23, 2004 @09:40AM (#9506323) Homepage Journal
    Remember, if you try to find out what WhenU's spyware is doing on your computer, WhenU can sue you for breaching their copyright/patent/encryption/whateverthehelltheyfel like on the basis that the transmissions were encrypted, or that their program is protected!

    OK huge exaggeration, but remember that WhenU is essentially trying to argue that you have less rights than they do over your own computer. This is the tenent of DCMA supporters. Users cannot be trusted with what they do on their computers, ergo we must administer their PCs for them. WhenU simply extends this to actions you take browsing the web.

    Acts like the DCMA have taken away a huge number of rights from computer users, so don't be too surprised if WhenU win the right to, basically, remotely administer your PC by force. As long as they get government backing and/or say that spyware fights terrorism, they might very well succeed.
  • by lkaos (187507) <anthony@nOsPaM.codemonkey.ws> on Wednesday June 23, 2004 @09:40AM (#9506327) Homepage Journal
    What about our rights not to have to deal with this scumware?

    What about our rights not to have to hear hate speech!

    What about our rights not to have to see minorities in the same store as us!

    Your right to be "left alone" just doesn't exist. Just stop downloading software. It's not hard.
    • Your right to be "left alone" just doesn't exist. Just stop downloading software. It's not hard.

      With the vast majority of users today running Windows and IE, combined with the fact that many of those are hapless users who know nothing about the dangers out there on the net, a large portion of the population does have difficulties in stopping spyware from being downloaded. Also, consider the fact that the PC is usually located in the home, a place where you *may* control entry. If I decide I don't want

      • [blockquote] hapless users who know nothing about the dangers out there on the net[/blockquote]
        I commonly see this defence, the 'protect the ignorant and therefore innocent' defence, and it is no defence at all. They are adults who more than likely didn't read the fine print of whatever it is they installed. Their fault is their own, especially when Spyware is so well documented, as is its removal.

        Ignorance does not exempt personal responsibility.
        • Since when does *Spyware* have fine print? So what you're saying is that you think that all Spyware identifies itself in some way shape or form. While WhenU's software apparently does give the user some indication of what it is (probably buried 3/4 of the way down in an EULA no one reads), most Spyware installs itself WITHOUT YOUR KNOWLEDGE OR CONSENT.
    • Remember, spyware takes place on our personal and private property.(if not in our homes then on our computer)

      Hence unlike these other issues, the user should have full authority over what happens.
      Everyone has an inalienable right to be left alone on their own property. Except if your a cr/hacker/terrorist/foreginer/junkie/subversive/mi nority/naderer/etc/etc/etc....
    • Just stop downloading software. It's not hard.

      Um, yes, actually it can be. For the vast majority of people who are running IE and always will be, some of this stuff is extremely scummy. You can get infected just by visiting a black hat site, or just by receiving an email and having it show up in the preview pane.

      Some of the stuff is very, very difficult to get rid of too. I know a very sharp sysadmin who's been trying to clean a machine for about 2 weeks now. The stuff is sneaky, and cleaning this cr
  • by nlinecomputers (602059) on Wednesday June 23, 2004 @09:40AM (#9506334)
    I service PCs for a living and this spyware shit is really paying the bills. It's great that I get more work but you feel dirty like you are having to work on a sewer line.

    I'm glad I have the work but also dislike having the need to do the work. I think alot of people of turning away from the internet because of all this spyware crap.
    • Yeah, I've made a pretty penny in my part time computer repair, and most of it has come simply from removing oodles of spyware. Which comes back after 3 months of browsing. And a lot of people have issues running spybot and adaware themselves, so i get called back again to remove it...

      I despise spyware, but I have to admit its turning into a reliable source of money to support my DVD habit.
  • by FictionPimp (712802) on Wednesday June 23, 2004 @09:42AM (#9506347) Homepage
    I guess they wont mind if I put some buggy software on their systems then?

    But seriously, why can't they be sued for cybercrime? If installing software without permission is perfectly legal, I have some keylogging software I would like to put on my banks PC's. I wouldn't argue privacy, I would argue the fact that they are putting software on your computer without your knowledge, that may cause problems in your system critical applications such as porn.

  • by David H (139673) on Wednesday June 23, 2004 @09:43AM (#9506362)
    Why do companies have rights the same as people have rights? It seems odd to me that companies aren't punished like people, but they want to be treated like people. I personally would love to see a corporate death sentence. If your products kill people and someone in the company knew it, the company should be instantly disolved.

    Personally, I think the US needs a corporate bill of rights, and those rights need to be seriously limited compared to my rights. Any first amendment rights should end where personal irritation begins.
    • View the full scoop here [straightdope.com].

      (quoting part:)
      Here's what happened. Santa Clara County in California was trying to levy a property tax against the Southern Pacific Railroad. The railroad gave numerous reasons why it shouldn't have to pay, one of which rested on the 14th Amendment's equal protection clause: the railroad was being held to a different standard than human taxpayers.

      When the case reached the Supreme Court, Chief Justice Morrison Waite supposedly prefaced the proceedings by saying, "The Court d
  • by dcocos (128532) on Wednesday June 23, 2004 @09:43AM (#9506368)
    I hate spyware as much as the next guy, so what do I do? I DON'T INSTALL IT!!! Even if the means, changing OSes.
  • by marnargulus (776948) on Wednesday June 23, 2004 @09:44AM (#9506377)
    When-U isn't claiming it is their speech that is being stopped (well legally, not literally), they are claiming their right to advertise is being stopped.
    This is what When-U said in the article from the previous post, which God knows would be impossible for almost all of slashdot to read (...wait they expect us to read THIS article AND the one before!?)
    "While protecting the privacy of computer users is an important objective, the act does little or nothing to achieve it," the suit states. "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. The state of Utah does not have a valid interest in regulating a company like WhenU, nor, given the nature of the Internet, can it promulgate such regulations without impermissibly burdening interstate commerce."
  • A matter of security (Score:5, Interesting)

    by thewiz (24994) * on Wednesday June 23, 2004 @09:44AM (#9506378)
    IMHO, I believe the U.S. Government needs to get involved with shutting down these spy- and mal-ware companies due to National Security. Having worked as a contractor in military facilities, every Windows-based system attached to the internet I've worked on in those facilities, has been loaded with spy-ware. And I'm not talking about military-sanctioned keystroke loggers and system management tools.

    I've never been comfortable working with unclassified (but potentially sensitive) data on a system that I know has spy-ware on it. It wouldn't be difficult for someone to collect sensitive data from those machines with spy- or mal-ware. A little side note here: it's possible to use information from unclassified documents to determine classified information.

    Regardless of whether the system is military, government, or your own personal PC, I see spy- and mal-ware as a form of trespassing. Someone sneaking software onto your PC is no different than someone breaking into your house and stealing your drivers license, social security card, and other personal information. What these companies do has nothing to do with free speech.
  • While I hate spyware (Score:5, Interesting)

    by Gr8Apes (679165) on Wednesday June 23, 2004 @09:46AM (#9506398)

    I'm probably going to be modded WAY down for this

    I cannot 100% disagree with their position. If someone is foolish enough to click through the agreement and installs spyware, as repulsive as it is, who do they really have to blame except themselves? As long as they don't act like a virus and stealth install along with another program as some programs have been known to do, I don't see how you can complain. Basically, as long as they agree, they agreed. Are you going to sue MS for typing "format c:" and then losing your system?

    I should mention that Hotbar is fresh in my memory from having to step my dad remotely through the painful removal process (no network access thanks to hotbar, sort of ironic;). However, the fact that is is painful, or even if it could not be removed at all, is not cause for legislation. Otherwise, I'd like MS to be the first victim. Ever try to uninstall an IE hotfix that causes problems? How about that "Outlook security fix"? Can't see your JPGs anymore? Tough. So, while I agree that Spyware sucks rocks, I don't think Utah's legislation is very well thought out or even correct.

    I think a better law would actually address personal privacy. The more I think about it, the more I think I like the EU's privacy laws, and perhaps the US should step up to that level of privacy protection. (Be hell on advertisers, but who really gives a sh!t about them anyways?)

    • You only get the agreement click in IE if you've set your security to Medium or above. Otherwise, it just goes right ahead and installs itself on your visit.

      Of course, you should have your security on Medium or above. The companies involved would probably say a lower security setting is implied consent. But saying that's implied consent is like saying leaving your gate to your fenced in yard open is an inducement to fill your yard with tarantulas, alligators, and land sharks with frickin' lasers on the
    • i agree. there appears to have been a kneejerk reaction to this judge's decision to hear the case. i guess this is partly because the the language used in the article is pretty slanted and partly because, well, it's slashdot. no rulings have been made yet. the guy just decided to hear both sides.

      also, if you RTFA, you'd see that there's a critical part of the utah law that makes it slightly less cut and dried than spyware vs. not.

      Regardless of consent, the Utah law bars companies from installing so

  • Constitution (Score:3, Insightful)

    by A_GREER (761429) on Wednesday June 23, 2004 @09:47AM (#9506414)

    The first amendment protects the right to SPEAK; nowhere does it say that one has a right to be HEARD.


    Spyware is installed without the users knowledge and forces said user to see speech that they may deem offensive or in some cases vulgar.


    The judge needs to brush up.

  • by gusanofeliz (790815) on Wednesday June 23, 2004 @09:47AM (#9506419)
    Has anyone done any reverse engineering of any of this spyware stuff? I mean, I would love to run a program that spoke gator.com's protocols and connected to their servers, reported endless amounts of bogus data to pollute and help render worthless all of their covertly gathered data that they value so much. Seems that this could be the only way to fight back.
  • by razmaspaz (568034) on Wednesday June 23, 2004 @09:49AM (#9506433)
    I see it this way. (Note I did not RTFA) You can go to the town hall or square, or even my curb, and scream to the high heavens about anything you want. But the second you step onto my property I have the right to arrest you. It is not a public place and thus your right to free speech is gone.

    I see the "information" space the same way. It is fine for you to post to public forums whatever you want to post to them. You can advertise your penis enlarger wherever you want, but when you start espousing your bullshit on my property I am well within my rights to call the cops, or tell you to stop, enact a law, etc.
    • ok look at it this way.

      I have the right to (up to the noise laws limit) stand at the border of your property and scream at your home, install video cameras pointing at you and take your picture. Hell I can ask your mailman what you got in the mail and/or take photographs as he put's mail in your mailbox (but I cant touch it!) hell I can follow you around town and document every thing you do.

      so I own you in public space and in private space where I have rights... I.E. my server, I'm gonna collect every bi
  • by Zondar (32904) on Wednesday June 23, 2004 @09:51AM (#9506453)
    If I walk up to some woman on the street, stand beside her and start digging quietly through her purse, making notes of what stores she's shopped at, her telephone number, her address...

    Then I go visit her house, quietly walk in and make more notes about her life, use her phone to call it in to my associates...

    I'd be arrested for so many violations of the law it wouldn't be funny. So why the hell is this tolerated in the virtual world?
    • by Ieshan (409693) <.moc.liamg. .ta. .nahsei.> on Wednesday June 23, 2004 @10:45AM (#9507086) Homepage Journal
      Just to play on a metaphor-

      If you stood outside a bank asking people to sign your petition which was clearly labeled "WhenU Animal Rights*", and under the Animal Rights portion (with that little *) was "and examining all contents of your personal life and subjecting you to a painful strip search", somehow I don't think collecting the signatures from the large percentage of people who signed your document would hold up in court when someone complained:

      "Your honor, I *know* I signed the pad, but I didn't want a STRIP SEARCH!"

      WhenU defense: "But they consented!" ...
  • by hot_Karls_bad_cavern (759797) on Wednesday June 23, 2004 @09:51AM (#9506457) Journal
    It says "a judge in Utah", not the Supreme Court or anything...hell, not even the state SC.

    Please don't blather about precedent, this shit won't stand in the court of a judge that can read and write English. Mountains of Molehills. Don't worry and quit installing every little piece of fluffy shit that comes down the pipe.

    NO. You don't neeeeed Kazzaaahahaa (or any of the other 80 p2p with fucking stupid names). Use trusted torrents.
    NO. You don't neeeeed gator. Fucking play some memory games or something. Use Firefox.

    You know the list goes on and on, but this is so retarded that i can't write anymore. This will blow over and be forgotten news of yesterday before you know it.
  • by Featureless (599963) on Wednesday June 23, 2004 @09:53AM (#9506486) Journal
    I for one am thrilled to find that our first amendment protections are so strong. I am sure, given this kind of brave judicial scrutiny, that the DMCA and PATRIOT acts will quickly receive the same treatment.
  • are the only ones that can really sue b/c the burden ($) is on them. I think eventually they will be able to claim SPAM is a form of Denial-Of-Service (DOS) attack. But, the real success must come from the companies paying for the ads. Nefarious people will always seek to make easy money. They will go to less restrictive countries, which will always exist. They will install trojans on unpatched machines. They will always be one step ahead of the law anyway. I believe that you have to target the compa
  • I agree... (Score:5, Insightful)

    by |<amikaze (155975) * on Wednesday June 23, 2004 @09:54AM (#9506505)

    A bit of background information. I'm a computer tech that deals with the general public. Despite keeping my job alive, I really do hate spyware. This software causes a fair-sized chunk of my customers' problems, and it gets repetitive to keep having to uninstall it. That being said, I think we have to look at the bigger picture.

    Spyware isn't some kind of magic software that spontaneously appears. Admittedly, it can be a bit deceptive, but still prompts you for an installer. The problem is that people install software blindly without considering the outcome of their actions. If a perfect stranger, without identifying himself as an employee from a company you knew about, showed up at your house asking to poke around on your computer for a while, what would you do? You would slam the door on his face, and make a mental note: "No, I do not trust content from the Gator company"

  • by WoodstockJeff (568111) on Wednesday June 23, 2004 @09:56AM (#9506526) Homepage
    Part of the request exchanged between a browser and a http server is a list of encodings and languages accepted by the browser and user. Is there a way to modify popular browsers to send, say, "Pragma:no-spyware-accepted" and "Pragma:no-tracking-software-accepted" on each request, to indicate in advance that you do not accept such software, despite (mistaken) click-throughs?

    Granted, no spyware company is going to pay attention to such things, but it might be useful if you participate in a class-action claim against such a company for installing damaging software on your system without your permission.

  • by the_rajah (749499) * on Wednesday June 23, 2004 @09:59AM (#9506560) Homepage
    But I am also a very strong proponent of my right not to provide the venue for speech I don't want. It should be that extremely simple. My computer is my property and, as others have pointed out, another party placing something there without my permission is trespassing.

    "Do the Right Thing. It will gratify some people and astound the rest." - Mark Twain
  • by thecorndogofdoom (790824) on Wednesday June 23, 2004 @10:00AM (#9506567)
    How about third amendment? Right against unreasonable search and seizure...normally applicable to physical search by the police...but what about "seizure" of personal information without permission...that's theft. Utah judges are bullshit. I know the 3rd amendment is intended for the government, but maybe it ought to be considered extensible in this circumstance? Actually, I'm surprised no-one has brought up harassment either (that I've heard of thus far).
  • Unfair! (Score:5, Funny)

    by mixmasterjake (745969) on Wednesday June 23, 2004 @10:05AM (#9506629)
    Hey, I never clicked on any license agreement. None of the warez that I downloaded even had one. The other day, this crack I ran had a spyware attached to it. I never clicked "agree" to anything. That's totally unfair!
  • WhenU ... (Score:4, Funny)

    by Rick.C (626083) on Wednesday June 23, 2004 @10:07AM (#9506638)
    Jimminy Cricket sings:

    WhenU click upon a link
    Makes no difference what you think
    WhenU click upon our link
    Your base are belong to us.

  • Only in Utah would the judicial system be crazy enough to allow two meritless suits like this one and a certain other company to go forward.
  • North Korea (Score:4, Interesting)

    by panurge (573432) on Wednesday June 23, 2004 @10:12AM (#9506700)
    True or not I don't know for certain but I read recently that in North Korea houses have a built in radio that broadcasts State propaganda, and that while it can be turned down, it cannot be turned off. Whereas under Capitalism some judges think that companies should be allowed to try and make you receive their propaganda, and that while the instructed may be able to stop it the majority can't....but of course that's completely different.
    • Didn't Number 6 find one of those radios in his apartment in the first episode of The Prisoner? As soon as he smashed the radio, repairmen came and immediately replaced it with a new one -- so he just placed the babbling box into the dishwasher or the oven where he didn't have to listen to it.
  • by blueZhift (652272) on Wednesday June 23, 2004 @10:12AM (#9506706) Homepage Journal
    As I'm sure others have said in the past, ultimately the best way to eradicate spyware is to punish the companies that benefit from it in the marketplace. If we as consumers simply refuse to patronize companies that use such distasteful marketing methods, spyware would just shrivel up. Those of us who are knowledgable should spread the word and make those paying the spyware makers regret it.

    Spyware, like spam, fluorishes because there is money to be made. There's no room in our capitalist system for morals, privacy, or common courtesy. But if lacking these starts to hurt in the pocketbook, then we'll see some progress.

  • by jridley (9305) on Wednesday June 23, 2004 @10:14AM (#9506729)
    Have some magnetic signs made up advertizing the local adult bookstore. Next time the judge stops at a stopsign, run up and slap the sign on the side. For bonus points, figure out somewhere that he won't notice it for a while; perhaps on the rear passenger door, he might not see it.

    To simulate the trouble it can be to remove the crap from your system, slather some superglue on the backside before doing this, so that it'll be expensive and time consuming to remove and will cause damage that will also be expensive to fix.

    I see NO difference between this and some of the more obnoxious spyware lately; they're both hijacking my property without my knowledge or consent in order to promote their own business interests.
  • Spyware Costs! (Score:5, Interesting)

    by spidergoat2 (715962) on Wednesday June 23, 2004 @10:15AM (#9506734) Journal
    I'm spending more and more time cleaning spyware at work. It invades computers then I have to get rid of it. I have a laptop someone just brought in that's filty with the stuff. I spent several hours at a friends house last night cleaning her PC. It's time to start sending bills to Spyware companies for these cleaning services. In fact, as I sit here, I believe that's what I'm going to do. I'll send invoices to these firms, then take them to small claims court when they don't pay. Who's with me?
    • Re:Spyware Costs! (Score:3, Interesting)

      by spidergoat2 (715962)
      I have to add this. Maybe this could be another slashdot comunnity effort. We publish the names and addresses of spyware makers, then we send them a lot of invoices for $50-100 per hour. Then perhaps a class action suit. Any other ideas?
  • DNS (Score:3, Interesting)

    by dacarr (562277) on Wednesday June 23, 2004 @10:17AM (#9506770) Homepage Journal
    So what's there to stop ISPs from halting this crap on the DNS level by causing WhenU.com's domain to resolve to localhost? At the very least, that shou.d stem the implementation on random computers for it.
  • by wcrowe (94389) on Wednesday June 23, 2004 @10:26AM (#9506892)
    Does a person have a first amendment right to post bills all over your house? Does a person have a right to dump notices all over your front lawn?

    No?

    Then what right does anyone have to do the same thing electronically?

  • It must be the right of WhenU (in the form of their software) to talk to WhenU (in the form of their master server) about you (the fool who doesn't RTF Licence Agreement)...
  • Ultimate example of (Score:3, Interesting)

    by MobyDisk (75490) on Wednesday June 23, 2004 @10:56AM (#9507184) Homepage
    I see two cases here:

    1) If the malware/spyware does not tell you what it does, then you have a fraud case. No need for additional laws here.
    2) If the malware/spyware does tell you, and you do not pay attention to the agreement, then it is the users fault.

    The problem is with #2. Is it realistic to expect users to read these long contracts? Maybe, maybe not. Since normal everyday software now includes EULAs, people are used to ignoring them. THIS is what needs to be decided -- is it legal to bury this information in a multi-page EULA?

    But I have a quick solution! Users should refuse to install applications that have EULAs. If every mom and pop called Microsoft or Dell or HP or Symantec when they saw an EULA, EULAs would be gone. *poof*

    Unfortunately, this is where the consumers become sheep. They don't like malware, but they don't want to stand up to Microsoft either. So they have dug themselves a hole, and now they want the government to dig them out.
  • by Perl-Pusher (555592) on Wednesday June 23, 2004 @11:20AM (#9507454)
    Then send him emails detailing his computer use. He has already said you have the right. Just include the little devil in an email. After you have sent him his "report", have it timed to pop-up dialog boxes reminding him of his decision.
  • Anti-Spyware Proxy (Score:3, Interesting)

    by cavac (640390) on Wednesday June 23, 2004 @01:28PM (#9509206) Homepage
    I know, there are already some Anti-Spyware proxies out there, but... ..why not write a proxy that mangles the data before sending it out, anyway - that is, it is sending nicely formated random junk.

    For the usual stuff like doubleclick it could for example generate nice, useless cookies with random ID's. For all the install-stuff it could just screw up the content a bit.

    This would give those bastards the traffic they asked for but without the option to put it to commercial use :-)

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