Now that Congress's spam debate has subsided, all eyes are on spyware. In the past month, a number of states have either passed anti-spyware laws or introduced anti-spyware legislation. Congress even introduced a bill addressing the issue.
If you think spyware has nothing to do with your email marketing efforts, think again. Many of these bills could have a dramatic impact on email campaigns.
The same problem with nailing down an accepted definition for spam affects spyware. You know it when you see it, yet industry and legislators have a hard time defining it. Broadly, spyware is a software program that transmits information from a computer over the Internet to another computer without the user's knowledge.
Unfortunately, many of the new spyware bills cover other unethical Internet practices. These may or may not relate to software applications.
Rather than come up with a strict definition for spyware (we don't have one for spam), we can reverse-engineer a definition by explaining what spyware isn't:
The Spyware Debate Isn't About Spyware
Legislators aren't concerned software programs on your computer send information to a host computer. Such programs have been on your computer since the first time you turned it on. The root of the debate is the perennial issue email marketing faces: permission.
I commend legislators for defending consumer rights against misleading software downloads. Such software can drain computer resources and potentially invade consumer privacy by collecting and transmitting personally identifiable information that could lead to identity theft. Identity theft is quickly becoming the bane of Internet use. Any application that allows its proliferation should be quickly stopped.
The title of the recently introduced federal bill, Controlling Invasive and Unauthorized Software Act, demonstrates legislators are focused on elements of notice and choice, not spyware alone.
Utah Anti-Spam Law Déjà Vu
With a new federal law preempting commercial elements of state email laws, we can look back at the deluge of Utah's anti-spam lawsuits and sigh in relief. Yet Utah is the first state to enact an anti-spyware law.
Utah's Spyware Control Act has three key elements that may affect email marketing:
Here's the déjà vu part: There's a private right of action for any Web site registrant or trademark owner to enforce this law. In other words, the same law firms that targeted legitimate emailers with Utah's anti-spam law may soon target legitimate emailers under this law.
Preemption Is Only Part of the Issue
After years of political wrangling, the email industry finally convinced legislators commercial elements of state email laws needed preemption. We may be obliged go down a similar path with a federal spyware law. Preemption is only part of the problem.
The bigger issue is permission-related. The pending law may again open a vigorous debate over opt-in versus opt-out. This typically ends in stalemates or spillovers from other pending laws.
The biggest concern the email industry faces with a spyware law isn't spyware at all. Rather, it's a reemerging debate surrounding overall online privacy, or even a multichannel privacy law that could affect the entire marketing industry.
The solution is not a No-Spyware Registry, but rather a specific review of the most threatening and fraudulent uses of spyware, coupled with bolstering the Federal Trade Commission's (FTC's) resources to track and enforce fraudulent cases.
How will spyware affect your email marketing efforts? Send me your thoughts.
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Ben Isaacson is the privacy and compliance leader for Experian, overseeing Internet and advanced technology privacy and compliance affairs across Experian Marketing Services products including CheetahMail, Digital Advertising Services, and Hitwise. Mr. Isaacson's previous roles include serving as the executive director of the Association for Interactive Marketing (AIM), a former DMA subsidiary. He regularly blogs at EmailResponsibly.com.
March 19, 2014