California Anti-Spyware Bills Pass Committee

Two California anti-spyware bills won committee approval Tuesday, one in the Senate and one in the Assembly.

Concern about the spyware [define] issue is growing, and consumers are pressuring lawmakers to take action. A recent study found the average computer houses roughly 28 items of monitoring software, unbeknownst to the user, according to Internet service provider EarthLink and Webroot Software.

SB 1436, introduced by Sen. Kevin Murray, D-Los Angeles, was approved by the Senate’s Judiciary Committee Tuesday. The bill would provide for a $1000 fine for installing spyware on a California computer without giving the recipient notice. It will next be considered by the full Senate.

AB 2787, introduced by Assemblyman Tim Leslie, R-Tahoe City, gained approval from the Assembly’s Judiciary Committee Tuesday. The bill will face the full Assembly before the end of May, a Leslie aide said.

Assemblyman Leslie’s bill would prohibit hijacking, surreptitious surveillance and inhibiting termination of a program.

The legislation would prohibit the use of a user’s computer without the user’s consent via the download of an unauthorized program. It would also bar software designed to foil consumers’ attempts to uninstall it. Finally, it would bar any practice where an individual intrusively and surreptitiously collects data about a user unrelated to the purpose of the software.

The bill would also provide that the consumer can take the perpetrators to court if the prohibitions are violated, according to a Leslie aide. “They can sue for damages under the state’s laws governing unfair business practices,” the aide said.

The aide said he does not think the bill will face legal challenges if it ends up as law. “We’ve been working with the industry and they like the direction we’re going. We are having an open dialogue, that’s a positive thing,” he said.

Utah’s recently passed anti-spyware law is currently being challenged by adware maker WhenU. The company is alleging that the statute is unconstitutional and limits companies’ rights to commercial speech.

Similar to Assemblyman Leslie’s bill, Sen. Murray’s bill, SB 1436, would make it possible for individuals to sue if violations occur. Unlike Leslie’s bill, SB 1436 names a specific sum, $1,000. The amount is subject to reduction by a court for specified reasons. The bill would also provide for attorney’s fees and costs to be paid to the prevailing plaintiff in such suits.

SB 1436 would make it unlawful to install spyware on a California computer without notice to the owner. The notice consists of telling the recipient that the computer software contains spyware, and what the spyware does (for example, collects personal information).

The bill defines “spyware” as “an executable program placed on your computer without your knowledge that monitors your actions or takes your personal information and reports it to a third party,” according to a Murray aide.

The aide said that some work would probably be done on the definition, which did not meet with the approval of some industry groups present at the hearing.

Both bills provide a good starting place for discussion of the issue, according to Ray Everett-Church, chief privacy officer of TurnTide.

“If lawmakers use these bills as the starting point they can come up with legislation that would indeed help the consumer and permit legitimate businesses to provide ad-supported products and services,” said Everett-Church. “Both bills highlight a clear and valid concern lawmakers have that consumers are being assaulted by spyware.”

Other lawmakers are taking action based on these concerns. 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.

The Federal Trade Commission is also examining the matter. The FTC held an April hearing in Washington, D.C. focusing on adware and spyware. The goal of the hearing, “Monitoring Software on Your PC: Spyware, Adware, and Other Software,” was to initiate a dialogue on the subject and move toward possible solutions.

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