WhenU Sues Utah over Spyware Law

  |  April 15, 2004   |  Comments

The adware firm seeks to strike down Utah's anti-spyware statute in a move that could affect other efforts to regulate such software.

Adware maker WhenU has filed suit against Utah alleging that the state's new anti-spyware statute is unconstitutional and limits companies' rights to commercial speech.

In the case, filed this week in the Third Judicial District Court in Salt Lake County, WhenU seeks a declaration that Utah's Spyware Control Act violates the U.S. and Utah Constitutions. It also seeks a temporary restraining order preventing the law from being implemented.

WhenU is arguing that the Act regulates interstate commerce -- a right reserved for the federal government in the constitution. WhenU also says the law limits companies' rights to commercial speech.

The recently passed Act, slated to go into effect May 3, prohibits the installation of spyware on a person's computer. It also makes it illegal to "use a context based triggering mechanism to display an advertisement that partially or wholly covers or obscures paid advertising or other content on an Internet Web site in a way that interferes with a user's ability to view the Internet Web site."

The Act would effectively make software by WhenU, along with that by rival Claria, illegal. Both make applications that track online behavior and use that behavioral information to target ads, which pop up while users are surfing Web sites.

"If the injunction is successful, whatever logic led to an injunction would lead to other states and possibly action on the federal level. It will be discussed on the federal level when decisions are made whether to pass the federal bill," said R. Bruce Dickson, an attorney with Paul, Hastings, Janofsky & Walker in Washington, D.C.

The issue is already taking an important place on the federal stage. U.S. Sens. Conrad Burns and Barbara Boxer recently introduced legislation to prohibit spyware, adware and other intrusive software. The proposed act, known as SPYBLOCK, would make it illegal to install software on a user's computer without notice and consent. Additionally, the Federal Trade Commission is holding a workshop on the issue next week.

WhenU is no stranger to legal action. It has both won and lost cases involving its pop-up ads. One of its ongoing legal opponents is online contact lens merchant 1-800 Contacts Inc. In the Utah lawsuit, WhenU claims that lobbying by Draper, Utah-based 1-800 Contacts spurred legislators to pass the Act.

ClickZ Live Chicago Learn Digital Marketing Insights From Leading Brands!
ClickZ Live Chicago (Nov 3-6) will deliver over 50 sessions across 10 individual tracks, including Data-Driven Marketing, Social, Mobile, Display, Search and Email. Check out the full agenda, or register and attend one of the best ClickZ events yet!

ABOUT THE AUTHOR

Janis Mara

COMMENTSCommenting policy

comments powered by Disqus

ClickZ Today is our #1 newsletter.
Get a daily dose of digital marketing.

COMMENTS

UPCOMING EVENTS

UPCOMING TRAINING

Featured White Papers

Google My Business Listings Demystified

Google My Business Listings Demystified
To help brands control how they appear online, Google has developed a new offering: Google My Business Locations. This whitepaper helps marketers understand how to use this powerful new tool.

5 Ways to Personalize Beyond the Subject Line

5 Ways to Personalize Beyond the Subject Line
82 percent of shoppers say they would buy more items from a brand if the emails they sent were more personalized. This white paper offer five tactics that will personalize your email beyond the subject line and drive real business growth.

WEBINARS

Resources

Jobs

    • Executive Assistant
      Executive Assistant (Agora Inc. ) - BaltimoreAgora Inc., an international publishing company, located in the Mt. Vernon district of Baltimore, MD...
    • Paid Search Specialist
      Paid Search Specialist (Boathouse, Inc.) - Waltham  Boathouse is looking for a Paid Search Specialist to work as a part of the Digital Acquisition...
    • Paid Search / Search Engine Marketing (SEM, PPC) Specialist
      Paid Search / Search Engine Marketing (SEM, PPC) Specialist (HeBS Digital) - New YorkJOB TITLE:     Paid Search / Search Engine Marketing...