Coddling Spies: Why the Law Doesn’t Adequately Address Computer Spyware

Consumers and businesses have attempted to use the common law of torts as well as federal statutes like the Computer Fraud and Abuse Act, the Stored Wire and Electronic Communications and Transactional Records Act, and the Wiretap Act to address the expanding problem of spyware. Spyware, which consists of software applications inserted into another\u27s computer to report a user\u27s activity to an outsider, is as innocuous as tracking purchases or as sinister as stealing trade secrets or an individual\u27s identity. Existing law does not address spyware adequately because authorization language, buried in click-through boilerplate, renders much of current law useless. Congress must act to make spyware companies disclose their intentions with conspicuous and clearly-stated warnings

The Legal Status of Spyware

This Article examines the legal status of Spyware under federal and common law in the United States of America. The Authors begin with a technical overview of Spyware technology, which covers Spyware\u27s functionality, methods of dispersion, and classification. The Authors then analyze the treatment of Spyware under the Computer Fraud and Abuse Act, the Stored Communications Act, the Wiretap Act, and under general tort claims of trespass to chattels, invasion of privacy, and intrusion upon seclusion. The Authors conclude that none of the aformentioned causes of action provide an adequate remedy at law for Spyware victims. Moreover, the Authors note that even if an adequate cause of action were to exist, Spyware developers could avoid civil litigation by operating solely within Spyware friendly jurisdictions. The Authors speculate that an appropriate solution would be for the legislature to require all Spyware programs to contain multi-click End User License Agreements. Not only would this approach protect consumers by enabling them to make informed decisions and creating an effective cause of action against Spyware distributors, it would also help the Spyware industry as a whole by legitimizing commercially viable Spyware programs

The Legal Status of Spyware

This Article examines the legal status of Spyware under federal and common law in the United States of America. The Authors begin with a technical overview of Spyware technology, which covers Spyware\u27s functionality, methods of dispersion, and classification. The Authors then analyze the treatment of Spyware under the Computer Fraud and Abuse Act, the Stored Communications Act, the Wiretap Act, and under general tort claims of trespass to chattels, invasion of privacy, and intrusion upon seclusion. The Authors conclude that none of the aformentioned causes of action provide an adequate remedy at law for Spyware victims. Moreover, the Authors note that even if an adequate cause of action were to exist, Spyware developers could avoid civil litigation by operating solely within Spyware friendly jurisdictions. The Authors speculate that an appropriate solution would be for the legislature to require all Spyware programs to contain multi-click End User License Agreements. Not only would this approach protect consumers by enabling them to make informed decisions and creating an effective cause of action against Spyware distributors, it would also help the Spyware industry as a whole by legitimizing commercially viable Spyware programs