The bad news is that currently there are no real laws against
adwars or spyware as of yet. Unethical adverstising practices
and scammers effect both consumers and business owners in a variety
of ways, wheither it be user tracking, misleading ads, spamming,
unfair competition or web traffic stealing.
There are a number of contibuting factors that allowed the current
state of affairs to exist.
The distributors and makers of these types of adware programs
(better known as spyware) have been able to "legally"
install their spyware programs on users computers with the use
of their often overlooked "terms of agreement". These
"terms of agreement" can appear during or after the
installation process of a software product which a user might
have downloaded from the Internet. (Many downloadable software
products come "bundled" with a wide variety of spyware/adware
programs.)
Their legal position is that you "agreed" based on
their various terms, including permission to gather your personal
information. Currently, whenever a user clicks "I agree"
it is considered a signed contract under the E-Sign Act (The E-sign
act was originally designed to allow e-commerce to blossom on
the Internet.) which is a legally binding agreement which the
courts have so far upheld combined with UCITA - Uniform Computer
Information Transactions Act. UCITA
dramatically shifts the balance of existing contract law in favor
of software vendors when they contract with businesses and consumers
and poses a number of serious legal drawbacks for consumers. Combine
these two with the current weak FTC regulations regarding privacy
policies and you will see how these adware and spyware
marketing companies have been able to fall between the legal cracks
in the system. For
more information on the limitations of E-sign,
UCITA and limitations of Privacy Statements see our help menu.
Many times these "terms of use" or "terms of
agreement" contracts are written in lengthy legal terms which
are hard for a reader to understand if they ever take the time
to read them (most people do not bother) and can also reference
additional "terms of use agreements" which might be
located on a web site. Almost every web site that does business
on the internet has a "terms of agreement" or "privacy
policy" which again are often written in extensive legalize
which to the average user can be misleading or misunderstood.
These "terms of use", "terms of agreement"
and "privacy statements" are the legal shield that adware
and spyware programs use to "protect" their right to
spy on you. For more information see the following articles from
GigaLaw:
Are
Web Site "Terms and Conditions" Enforceable?
http://www.gigalaw.com/articles/2001-all/isenberg-2001-07-all.html
Contracting
Via the Click
http://www.gigalaw.com/articles/2000-all/grossman-2000-02a-all.html
What
is the Uniform Computer Information Transactions Act
http://www.gigalaw.com/articles/2000-all/uhlfelder-2000-12-all.html
Software marketing companies like Gator have been able to fall
back on these "terms of use" agreements to win several
legal battles. Gator's Web site says its ads are legal and reach
only customers who agreed to accept ads in exchange for free software.
In fact recently a federal judge has given the OK for a software
maker to deliver ads that pop up over Web sites, including those
owned by rivals of the advertiser. The court's ruling is a first
in a controversial sector of online advertising, and it could
influence lawsuits involving a better-known ad-software, or "adware,"
company, Gator, which, like WhenU.com, develops an Internet "helper"
applications that often comes bundled with popular free software
such as peer-to-peer applications.
Unfortunately what
the court did not understand is that
many of these adware programs (including WhenU) use ActiveX controls
to download thier software onto consumers computers and although
many ActiveX installations will often provide an alert that a
download is about to take place there is little explaination about
what is being installed and many novice computer users will often
choose "yes" thinking that browser is merely installing
a plugin that is needed to display content on the web site. Furthermore,
many ActiveX installations can also take place quietly in the
background with out a users knowledge if they do not have their
security settings set high enough to display an alert message.
This legal ruling has deep implications to web site owners and
needs to be challenged since many of these ad serving programs
are in fact installed on users computers with out their full knowledge
sometime by ActiveX installers. http://netscape.com.com/2100-1104-5072663.html.
The good news, yes there are laws and regulations out there which
might protect us against spammers and these unethical marketing
programs if we can ever get the right doors opened. Currently,
only the states of Washington & California have strong anti-spamming
laws and more stringent laws to protect consumer privacy. (Unfortunately,
both Washington's & California's laws are being challenged
in the courts.)
Although there are many new privacy laws pending within the United
States focusing on different aspects of consumer privacy, they
often get "watered down" due to the outspoken lobbing
of big businesses that are able to profit from the amassing and
exploitation of our personal information. Since there are no clear
or unformed laws nationally or state by state (let alone globally)
that prohibit or consistently limit these types of "tracking"
and "informational gathering" behavior they can continue
to do so.
To make it worse, as technology has advanced so to has the aggressiveness
of these programs leaving our slow moving legal system in the
dust with little understanding of what the technology is capable
of. On the bright side there are a number of "privacy advocates"
trying desperately to stem the tide of our eroding privacy but
they can not fight the battle alone. These laws will continue
to get "watered down" until we - the general public
- start to speak out loud enough to get our elected officials
to hear us.
Which is why we hope
that our readers will take the time to contact their elected officials
to voice their outrage and demand stronger privacy laws.
We are not lawyers, and of course neither are you, but a little
education never hurt any body! We have done some research and
uncovered agreat deal of information and a number of articles
which are both educational and relevant. We do need a few lawyers
on our team to fully shift through all the legal "mumbo jumbo"
and help us put togeather a working class action or anti trust
law suit against Gator's and eZula's unethical advertising practices.
Do we have any takers out there in the legal area to help us out???
Pending New Legislations
Spyware Targeted at Congressional Hearing
By John P. Mello Jr.
TechNewsWorld
November 20, 2003
A bill to take the "spy" out of spyware got a public
hearing before a Congressional subcommittee Wednesday.
"You're starting to see some very sophisticated capabilities
built into these things," Ken Sokol, senior product manager
at Clearswift, told TechNewsWorld. "Some spyware will sit
there and monitor what you're doing at your computer or steal
sensitive information about you or your customers."
Until now, spyware has been seen as primarily a consumer problem,
but Clearswift issued a white paper on the eve of the Congressional
hearing suggesting the malware will create serious trouble for
businesses, too.
"[Programs that] have been marketed and sold as corporate
security devices and parental control software for kids are finding
their way into the hands of hackers and criminals [who aim to]
remotely [take] control of a victim's PC to facilitate industrial
espionage," Clearswift Threatlab manager Pete Simpson said
in a statement.
http://www.technewsworld.com/perl/story/32206.html
Please contact your representative
to support this new legislation
Bono Introduces Spyware Legislation
July 30, 2003
By Roy Mark
U.S. Rep. Mary Bono (R.-Calif.) has introduced legislation requiring
companies using "spyware" to inform computer users of
their intent to install the invasive software and to obtain permission
before loading it onto a computer. Spyware allows companies and
individuals to monitor Internet activities and sometimes makes
it possible to gather personally identifiable information.
Bono said H.R. 2929, the Safeguard Against Privacy Invasions Act
(SPI), makes users aware of the technology before they install
it on their computers. "The SPI Act helps consumers make
more informed decisions about the types of tracking devices they
are loading onto their PCs," Bono said. The bill is co-sponsored
by Representative Edolphus Towns (D-10-NY), who said this legislation
has important implications for the privacy of Internet users.
http://dc.internet.com/news/article.php/2242311
Please contact your representative
to support this new legislation
http://www.marybono.com/Feedback/Feedback.cfm :: Mary Bono
http://www.cnn.com/ALLPOLITICS/CA/bios/H/413.html
:: Edolphus Towns
P2P companies may face new scrutiny
Last modified: July 25, 2003, 3:44 PM PDT
By Lisa M. Bowman
Staff Writer, CNET News.com
A bill introduced Thursday in Congress would require file-swapping
companies to get parental permission before allowing minors to
use their services.
The bill, called the Protecting Children from Peer-to-Peer Pornography
(P4) Act and sponsored by Reps. Joe Pitts, R-Pa., and Chris John,
D-La., would require the Federal Trade Commission to regulate
peer-to-peer networks and take steps to ensure that children aren't
accidentally coming across porn.
The bill's sponsors said as many as 40 percent of all files traded
on the networks are porn.
"Our legislation gives parents the tools they need to protect
their children from pornography and threats to privacy posed by
peer-to-peer file-trading networks," Pitts said in a statement.
"By working together to protect children, we are building
a broad and bipartisan coalition."
http://news.com.com/2100-1025-5055426.html?tag=nl
Please contact your representative
to support this new legislation
Congress cracks down on P2P porn
Last modified: March 12, 2003, 5:30 PM PST
By Declan McCullagh
Staff Writer, CNET News.com
The U.S. Congress is targeting peer-to-peer networks again--and
this time politicians aren't fretting over music and software
piracy. Searching for words such as "preteen," "underage"
and "incest" on the Kazaa network resulted in a slew
of images that qualify as child pornography, the General Accounting
Office said in a 37-page report, one of two obtained by CNET News.com.
The second report, prepared by staff from the House Government
Reform Committee, concluded that current blocking technology has
"no, or limited, ability to block access to pornography via
file-sharing programs."
http://news.com.com/2100-1028_3-992371.html?tag=st_rn
Below are some resources for consumers and business owners.
Guide to Internet
Legislation PDF
Legal Issues & Articles
Anti Trust Laws
Are these new forms of advertising violating the the Lanham
Act which specifically prohibits the false designation of goods
in interstate commerce and causing CONFUSION IN THE MARKET PLACE.
Section 43(a) of the Lanham Act of 1946, 15 U.S.C. 1125
a) misappropriation
b) passing off
c) trademark infringement
d) invasion of right of publicity
e) false advertising
f) likelihood of causing consumer confusion
g) unauthorized commercial endorsements
FEDERAL TRADE COMMISSION
The Federal trade commission is a tremendous resource of information
below are links to several relevant sections.
THE GOALS OF COMPETITION LAW
Anti Trust Primer
Monopolies
FTC General Advertising Policies
Here are several excerpted relevant sections:
Disclaimers
Children
On line privacy
Advertising and Marketing on the Internet:
The Rules of the Road
Each State in the US has different laws regarding spam. In
addition, the laws from country to country vary. For information
regarding the laws in your area review the follwing links.
US STATE SPAM LAWS
EUROPEAN SPAM LAWS
NON-EUROPEAN SPAM LAWS
For additional information on spam legislations see:
http://www.spamlaws.com/
1. FTC Consumer Alert -
FTC Names Its Dirty Dozen: 12 Scams Most Likely to Arrive Via
Bulk email
http://www.ftc.gov/bcp/conline/pubs/alerts/doznalrt.htm
2. Report to the Federal Trade Commision of the Ad-Hoc Working
Group
on Unsolicited Commercial Mail.
http://www.cdt.org/spam/
3. This spam complaint primer spells it all out as it is and
offers a sample complaint covering every important aspect of
reporting spam to get spammers' accounts and
web sites terminated. http://combat.uxn.com/tracing.html
4. The all-time classic to report spam to is the not-for-profit
Mail Abuse Prevention System LLC. http://mail-abuse.org/
5. The Network Abuse Clearinghouse is a complaint service that
will forward your spam complaints to the culprits flooding your
mail box. http://www.abuse.net/
For more information see our Spam
reporting page.which includes information and links several
state laws.
Each state and country has their own laws & regulations
for spam abuses. See the full list of Spam Laws in our Consumers section
Privacy
State of Current Law
First there was CDA, which begat COPA which begat a whole slew
of Acts: COPPA, CIPA, and CPPA, not to mention all the individual
laws at the state and local level. So what exactly are all these
strange acronyms and what are they intended to do? Here is a
brief introduction to the network of laws that affect children
on the Internet.
http://students.washington.edu/cganders/regulations.htm
U.N. group to combat online child porn
Last modified: February 25, 2000, 9:30 AM PST
By Paul Festa
Staff Writer, CNET News.com
With legislation to protect minors from online sexual predators
stalled in the courts, a United Nations-led Internet child protection
effort is attracting attention from top U.S. technology companies,
law enforcement agencies and educational institutions.
http://news.com.com/2100-1023_3-237310.html
Analyzing the Supreme Court's Opinion on the Child Online Protection
Act
http://www.gigalaw.com/articles/2002-all/isenberg-2002-05-all.html
Government Can't Protect Kids from Porn -- But Parents Can
http://www.cato.org/dailys/05-21-02.html
CIPA Internet Porn Law Tossed
http://www.isp-planet.com/news/2002/pa_020603.html
Consumer Internet Privacy Protection Act of 1997
http://www.epic.org/privacy/internet/hr_98.html
HR 313 IH (106th Congress).
Consumer Internet Privacy Protection Act of 1999
http://www.techlawjournal.com/cong106/privacy
The Gramm-Leach-Bliley Act
Privacy of Consumer Financial Information
This is a downloadable PDF File
Summary of the Consumer
Online
Privacy and Disclosure
Act H.R. 347
This is a downloadable PDF File
Information Privacy/Information Property
by Jessica Litman
STANFORD LAW REVIEW - This is a lengthy and in depth examination
of the legal merits of viewing personal information as property.
This is a downloadable PDF File
Consumer Internet Privacy Enhancement Act.
http://www.techlawjournal.com/cong107/privacy
HR 237 IH, Consumer Internet Privacy Enhancement Act.
Sponsor: Rep. Anna Eshoo (D-CA).
Date Introduced: January 20, 2001.
Source: Library of Congress.
Consumer Internet Privacy Enhancement
Act
(Introduced in the
Senate)
This is a downloadable PDF File
http://www.techlawjournal.com/privacy
(January 24, 2001) Reps. Eshoo and Cannon introduced an online
privacy bill in the House. It would prevent a commercial web
site operator from collecting personally identifiable information
from users of the web site unless it first gives notice of what
information is collected and how it will be used, and gives
the users the opportunity to limit the use of that information.
Spyware Control & Privacy Protection Act of 2001
The Spyware Control and Privacy Protection Act would uncloak
so-called spyware programs that use encrypted codes to monitor
the activities of unsuspecting computer users and share the
personal information with advertisers, telemarketers or other
businesses. Senator Edwards proposed the bill in 2000, but Congress
failed to act on it before finishing business late last year.
(Still Pending)
http://www.hipaadvisory.com/news/
http://www.hipaadvisory.com/news/
http://www.senate.gov/~edwards/press
Spyware Control
and Privacy Protection Act of 2001
(Introduced in the Senate)
This is a downloadable PDF File
To Find out more information about up commiing legislation
check out the following:
http://www.practicalprivacy.org/nbcpe/
FEDERAL PRIVACY BILLS
For legislative status of the following bills, please check
the Bill Chronology Report.
Find out about new legislation that will impact on privacy
& the internet.
http://www.cdt.org/legislation/107th/privacy/
Survey Finds Children Willing to Give Out Private Family Data
Online
Seventy-five percent of children are willing to disclose private
family information online in exchange for goods and services,
according to a new report released by eMarketer.
http://www.ecommercetimes.com/perl/story/?id=6942
Advertising
FTC General Advertising Policies
Here are several excerpted relevant sections:
Disclaimers
Children
Final
Report of the COPA Commission
The
Legal Challenge to the Child Online Protection Act
On line privacy
What can my company do if a competitor is running an ad that
I think is deceptive?
You can:
* Explore your legal options under federal and state statutes
that protect businesses from unfair competition. For example,
the Lanham Act gives companies the right to sue their competitors
for making deceptive claims in ads.
* File a complaint with the National Advertising Division (NAD)
of the Council of Better Business Bureaus, if your competitor's
ad is running nationally or regionally. The NAD is a private,
self-regulatory group affiliated with the BBB. It investigates
allegations of deceptive advertising and gives advertisers a
mechanism for resolving disputes voluntarily.
Filing a Complaint or Inquiry with NAD
No special form is needed to bring advertising to NAD's attention,
but it is helpful to remember the following:
1. Put the query or complaint in writing;
2. Enclose originals or photocopies of newspaper or magazine
ads. If the advertising was on radio or television, be specific
about the name of the product and company, the claims at issue,
and where and when the advertsement appeared;
2. Mail your letter and supporting materials to:
The Director National Advertising Division
Council of Better Business Bureaus
845 Third Avenue New York, NY 10022
Your letter will be promptly acknowledged and you will be
informed of NAD's action. If a formal investigation is conducted,
you will be provided with a copy of the NAD's decision.
* Call your local BBB or file an online complaint with the Better
Business Bureau if the ad is local. Many BBBs have procedures
for resolving disputes between businesses. For more information
on the BBB advertising policies see http://www.bbb.org/advertising/
* Contact your state Attorney General's Office or your city,
county, or state Office of Consumer Affairs. To get their phone
numbers, check your telephone directory.
Pending and Up Comming Legislations
Court to Hear Case on Web Porn
By Charles Lane
Source: Washington Post
Date: October 15, 2003
Law to Protect Children Is Stalled by First Amendment Issues
The Supreme Court announced yesterday that it will decide whether
a 1998 law designed to shield children from Internet pornography
violates the First Amendment, propelling a six-year-old legal
battle over free speech in cyberspace into what might be a conclusive
phase.
The Child Online Protection Act (COPA), passed by Congress and
signed by President Bill Clinton, makes it a crime for a commercial
Web site to put material that is "harmful to minors"
where children younger than 17 can gain access to it, unless the
site has made a good faith effort to screen out all but adult
users.
COPA has never taken effect, however, because
opponents led by the American Civil Liberties Union (ACLU) challenged
it in court, winning judicial orders that blocked its enforcement
on the ground that it would force Web publishers to give up some
of their constitutional rights to communicate adult material to
adults.
http://www.crime-research.org/eng/news/2003/10/Mess1501.html
Minn. Bill Considers Internet Privacy
Posted on Fri, May. 17, 2002
PATRICK HOWE Associated Press Writer ST. PAUL (AP) -
Minnesota would become the first state to give Internet users
control over whether their service providers disclose or sell
their personal information under a bill headed to the House and
Senate for final votes. Under the bill, service providers would
have to tell Minnesota consumers whenever they plan to disclose
information such as the Web sites a person has visited, their
e-mail or home addresses or telephone numbers. They would also
have to say what the information would be used for. A second part
of the bill follows the lead of about 30 other states that have
adopted rules to try to control unwanted e-mail. It would require
companies sending unsolicited advertisements to include the letters
"ADV" in the subject line of e-mails - "ADV-ADULT"
for material of a sexual nature - to make it easier to filter
out.
http://www.siliconvalley.com/
Spam, Privacy Bills Head to Senate Floor
May 17, 2002
By Christopher Saunders
Two controversial bills aimed at curbing spam and beefing up consumer
online privacy protections are set to proceed to the Senate for
debate, after being approved Friday morning by the Senate Commerce
Committee. As a result of a unanimous Committee vote, the latest
version of S. 630, "Controlling the Assault of Non-Solicited
Pornography and Marketing Act," or CAN-SPAM, has come closer
to becoming law than any other bill aimed at curbing unsolicited
commercial e-mail. At the same time, a divided Committee also
approved S. 2201, "The Online Personal Privacy Act,"
the approval of which initially had been challenged by Republicans.
But an agreement by the bill's sponsor, Sen. Ernest "Fritz"
Hollings (D-S.C.), to support CAN-SPAM evidently lent the bill
enough bi-partisan support to continue.
http://www.internetnews.com/IAR/article.php/12_1140761
Congressman set to introduce Web privacy bill
Posted on Mon, May. 06, 2002 WASHINGTON (Reuters) - A U.S. lawmaker
said Monday that he would introduce this week a long-awaited consumer
privacy bill covering Internet commerce. Florida Republican Rep.
Cliff Stearns said he would introduce the measure Wednesday, nearly
nine months after releasing an outline of what the bill would
contain. ``Congress needs to address the American people's concern
with the online and offline collection and use of personal information,''
Stearns said in a statement.
http://www.philly.com/mld/philly/business/technology/3210263.htm
Online privacy bill under attack
04/26/2002 Updated 10:36 AMET WASHINGTON (AP) Senate effort to
limit what businesses can do with information they collect from
customers online is under attack from Internet companies, and
is receiving only tepid support from consumer advocates. The proposed
online privacy legislation, introduced last week by Sen. Ernest
Hollings, D-S.C., who chairs the Senate Commerce Committee, would
require businesses to tell visitors to their Web sites what information
is being gathered about them and how it will be used. Online businesses
would then have to get consumers' permission before sharing with
third parties sensitive information such as bank accounts, medical
information, political or religious affiliation or Social Security
numbers. Anyone who finds sensitive data was misused and can prove
harm can sue for up to $5,000 for each use of the information.
http://www.usatoday.com/life/cyber/tech/2002/04/26/online-privacy.htm
Hollings Online Privacy Bill Amended and Sent to Senate
Floor
On May 17, 2002, the Senate Commerce, Science and Transportation
Committee voted 15-8 to report the Online Personal Privacy Protection
Act of 2002 (S.2201)to the Senate. Before proceeding with the
mark-up, Senator Fritz Hollings, the bills original sponsor,
submitted a Managers Amendment making several substantive changes
to the bill. Even with these changes, described below, the bill
would still impose burdensome notice and collection obligations
on online service providers and operators of commercial websites
(providers) for all personally identifiable information.
http://www.crblaw.com/newsarticle.asp?year=2002&file=Hollingsbill.html
Additional Resources for Legal Information:
(Also Check out our Legal News Archive)
Dot Com Disclosures
Children's Online Privacy Protection Rule
Children's Advertising Review Unit
(CARU) of the Council of Better Business Bureau
Ethics and Computers
This site has a lot of information on the legal ethical aspects
Anti-Competitive -Antitrust Laws
INTRODUCTION TO TRADEMARKS
Antitrust Guidelines for the Licensing
of Intellectual Property
How Famous is Famous --
THE FEDERAL TRADEMARK ANTI-DILUTION ACT
www mulimedia law
This little sites offers articles and a handbook
Antitrust Guidelines for the Licensing
of Intellectual Property
Legal information on computer fraud &
abuse act of 1986
This site is also full of legal information - lots of links
Two Additional Resources for up todate Legal/Privacy
Information
http://www.privacyexchange.org
http://www.privacy.org
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