Congress Takes a Stab at ‘Spyware’

Software designed to steal computer users’ personal data is gaining more attention from Congress even as top consumer protection officials in the Bush administration say it is too early for the government to step in and deal with it.

Rep. Jay Inslee (D-Wash.) plans to introduce a bill that would outlaw “spyware” programs designed to record Web browsing habits and collect personal data such as credit card and Social Security numbers. A House subcommittee, meanwhile, quizzed Federal Trade Commission officials this morning on their continued opposition to spyware legislation.

Inslee’s bill would prohibit the installation of programs that hijack Internet connections or cause infected computers to dial expensive phone numbers such as 1-900 adult services.

The bill would punish violators with up to five years in jail for the first offense and 10 years in jail for the second.

Third Spyware Bill

It is the third spyware bill to be introduced in Congress this year, reflecting lawmakers’ concerns about computer programs that are fueling a nationwide identity theft crisis. Instead of focusing on banning certain kinds of software, Inslee said in an interview that his proposal would target people who act with bad intent. “If we focus on preventing certain behaviors instead of trying to ban programs, we will be much more helpful to privacy,” he said.

FTC officials, meanwhile, say that the technology industry should lead the way in defining the spyware problem and devise a solution for it before the government gets involved.

The FTC and executives at companies such as Microsoft Corp. say that too broad a bill targeting spyware could accidentally criminalize legitimate software programs. They also insist that existing fraud and identity theft laws can be used to punish spyware purveyors.

“I think legislation is too soon. It is too hard to define the category and too easy to sweep in a lot of stuff that is useful or benign,” said Howard Beales, the FTC’s consumer protection chief, at today’s hearing. “A lot of the bad things we heard about are pretty clearly already illegal.”

Pernicious Intrusive Activity

House Energy and Commerce Committee Chairman Joe Barton (R-Texas) said that another spyware bill, sponsored by Rep. Mary Bono (R-Calif.), would win widespread approval from Republicans and Democrats in his committee in spite of the FTC’s stance.

“There is no more pernicious intrusive activity going on on the Internet today than [spyware]. It is a cancer on the Internet,” Barton said.

Computers are often infected with spyware when users download “free” software like digital music file-sharing programs or free games, electronic greeting cards and instant messaging buddy icons.

There are hundreds of kinds of spyware programs, some of them annoying and some of them dangerous. Less invasive programs known as “adware” come bundled with free programs and do little more than sprinkle computer monitors with pop-up advertising. Companies that distribute adware usually allow users to disable the ads in return for buying the software that they downloaded.

More aggressive forms of adware and spyware often install themselves without the computer user’s knowledge. Much like a virus, spyware can be difficult for a non-technologically savvy user to remove and it frequently saps the victim’s computer processing power and Internet connection speed.

Adware Distributors

In a survey released earlier this month by Internet service provider Earthlink and privacy firm Webroot Software, the companies found close to 30 million spyware programs on more than 1 million computers in a three-month period — nearly 28 programs for every computer.

Inslee’s bill would require adware distributors to get the computer user’s consent before downloading. Many companies bury the consent notice in lengthy user agreements, small typefaces or confusing user interfaces. His bill also would require companies to provide tools for people to easily remove the programs from their computers.

So far, only Utah has passed a law banning spyware. Inslee’s proposal would cancel out state and local spyware laws.

Ari Schwartz, associate director of the Center for Democracy and Technology, said that he would prefer to see Congress pass a bill that would more broadly protect people’s privacy online.

As for spyware, he said, “A lot of this stuff is already illegal and we want action under existing law.”

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