Mercifully, it appears the out-going Congress adjourned without passing a spyware law. Unlike its work with the Can Spam Act, at least in the spyware arena the 108th Congress did no harm.
Unmercifully, it appears the next Congress is likely to pick up the spyware ball right where the old Congress left it. And that means they're going to have to deal with the very tricky issue of how adware companies give notice to their "customers" about what is being installed on their computers.
Self-professed adware companies like Claria/Gator, WhenU, and the even shadier DirectRevenue claim not to be in the spyware business because users consent to install their pop-up ad serving software installed. Of course, that consent is based on the users supposedly having read the adware vendor's hard-to-find, hard-to-read, hard-to-comprehend End User License Agreement. In reality, of course, most adware customer-victims don't even know the EULA is there, much less read it, which is a big reason why the spyware plague has gotten out of hand.
The great danger with spyware legislation is that it can easily wind up endorsing the EULA approach for notice and consent to adware. That's what California's new supposed anti-spyware law does, to the point that Claria happily endorsed it. The political problem comes from the fact that it's not just the adware companies that get nervous when legislators start talking about requirements for real notice and informed consent. As we know, there are a lot of companies in the high tech sphere that like to use the EULA fine print to hide the true nature of the deal they're offering customers.
So will Congress do any better than California did at mandating honest adware notice? One of the bills that was under consideration in Congress before it adjourned at least took a step in the right direction. It would have required adware vendors display a notice saying: "This program will collect information about Web pages you access and will use that information to display advertising on your computer. Do you accept?' But while even that was much too blunt for the tastes of the direct marketing lobby, I fear it does not quite make what the adware folks are up to clear enough. So, just to be helpful, allow me to propose my own version of an honest adware notice:
"Warning: This program will display innumerable pop-up ads over content you might wish to see. It will watch what you do on the Internet and report that information to people of questionable motives. It might automatically download additional software from other parties that will also display ads and/or collect information about you. Installing this program will thus inevitably degrade the performance of your computer until it's a useless piece of garbage. Do you agree, bozo?"
Well, maybe it needs works, but you get the idea. Let's just hope our new Congress does as well.
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10:20:47 AM 
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