Congress And The FTC At Odds Over Controlling Spyware

by Glen Shapiro, LawAndTax-News.com, New York

04 May 2004

The Federal Trade Commission concluded after a workshop on the spyware problem last week that education rather than legislation was the way forward - but Joe Barton (R-Texas), Chairman of the House Energy and Commerce Committee, disagrees, saying his Committee will support legislation.

Spyware, which is often confused with adware, generally refers to any software that covertly gathers user information through the user's Internet connection without his or her knowledge, sometimes for advertising purposes. Most forms of adware, however, are installed with the user's knowledge.

Rep. Barton criticized the Federal Trade Commission (FTC) at a hearing of the House Subcommittee on Commerce, Trade and Consumer Protection. on Thursday for not doing enough to halt the spread of spyware. Howard Beales, the FTC's director of consumer protection, told the Committee: "I think it is very difficult at this time to draw a line around what is spyware and what is not," while Commissioner Mozelle Thompson added, "I think targeted legislation here at this time will be very difficult, if not impossible to define."

Joe Barton contradicted them, saying: "Unless I'm totally mistaken, when we get ready to move this bill, all but a handful of the members of this committee are going to be supportive of it. I'm not a software expert, but I can count votes on my committee. I would encourage the federal officials at this table to work with us on how to clarify the language that helps you enforce the law, instead of defending something that is not defendable."

Bills have already been introduced both in the House and the Senate. HR 2929, the Safeguard Against Privacy Invasion Act requires that consumers be given a "clear and conspicuous notice" prior to downloading any software, and requires that third parties disclose their identity to the consumer along with their street address and a valid return e-mail address as well as specifically revealing their intent to collect and use the consumer's information.

The FTC, for its part, has asked leading players such as Microsoft, America Online and Earthlink to produce a set of best practices for the use of adware, including disclosure statements to consumers regarding what they are about to download.

Recommended