You may wonder why the topic of "mousetraps" begins with a discussion about the Federal Trade Commission. Read on, and you will see.
If you are not aware of this, the Federal Trade Commission is a sort of fourth branch of government. It is neither Judicial, Executive, nor Legislative, although it has the properties of all three. Comparably organized bodies include the Federal Communications Commission and the Securities and Exchange Commission.
The FTC operates under the control of five commissioners, each of which is nominated by the President and confirmed by the Senate. They serve staggered seven-year terms, and no more than three commissioners can be of the same political party at any given time. The idea is that the FTC will be a non-partisan body that effectively accomplishes its objectives without political overtones. But whoever heard of anything in Washington which is "non-political"?
The FTC was chartered to enforce a variety of Federal anti-trust and consumer-protection laws. Relevant here is the component involving consumer protection, where the FTC is charged with enforcing the likes of credit reporting laws, labeling laws and fair-debt-collection laws. Its centerpiece, however, is the Federal Trade Commission Act, which is designed to prevent unfair methods of competition and other unfair or deceptive acts which might injure consumers. Make no mistake about the fact that the FTC wields a broad arsenal of legal weapons against activities which it believes are "unfair," "deceptive" and/or "injurious to consumers." These are extraordinarily vague, the result of which is that the terms "unfair," "deceptive" and "injurious to consumers" tend to mean whatever the FTC wants them to mean.
The FTC has been battling against mail-order scams, for example, almost since they were first contrived. Typical of its activities is that it regularly swoops down on deceptive contest schemes.
The FTC also has its trade regulation rules, which spell out more specifically what the Commission thinks is fair and what it thinks is not fair. If the FTC thinks something is unfair and you disagree, be prepared to spend a ton of money on lawyers.
You probably already know what is coming next. The Federal Trade Commission, in response to what obviously it viewed as a "Wild Wild West" environment on the Internet, has created its own Internet department of sorts. Specifically, the Commission's "Internet Lab" was established to provide the FTC's lawyers and investigators "with hi-tech tools to investigate hi-tech consumer problems." It trumpets its ability to "capture Web sites that come and go quickly" and to "provide FTC staff with the necessary equipment to preserve evidence for presentation in court." These folks are serious!
The Commission has the power to bring lawsuits to undo what the Commission finds to be an unfair or deceptive trade practice, seeking money damages and orders stopping such practices. One of its recent filings, FTC v. Pereira, is of particular interest to the readers of this publication.
According to the complaint, what the defendants there did was to make unauthorized copies of Web pages which were created by unrelated third parties - "hijacking" of the pages, in FTC parlance, and called "page-jacking" in the popular press. The defendants then allegedly posted copies of these Web pages on their own computer services. The search engines, of course, then found all of these mis-located Web pages, and diverted traffic to them. This, of course, generated profitable "traffic."
Now, it does not take a wizard to figure out that such a practice must be illegal. To begin with, copying the Web pages violated the Web masters' copyright interests. Then, when the copied pages were posted on the computer services operated by the defendants, that obviously infringed the trademarks of the victims, because trademarks identify the source of goods or services and these identified the wrong source.
The next thing that the defendants were accused of doing wrong was to create a system where, if a surfer selected the search engine's hit on the imitation site, the surfer would be catapulted from the stolen Web page to an adult site. No credit card, no password, no nothing - straight to the adult site. An example cited in the complaint alleged that someone searching for children's medieval books was sidetracked by the defendant to an adult site.
And this was no small-scale operation, at least according to the allegations in the complaint. Indeed, the complaint alleges that the defendants "hijacked" millions of pages from Web sites "containing information about pies (www.atariz.com/pies.htm); folk music (www.atariz.com/Y03.htm); cars (www.atariz.com/suite.html), (www.atariz.com/TTcoupe.html); movie reviews (www.atariz.com/spCityOfAngels.htm); business classifieds (www.atariz.com/pga0051.html); Web businesses (www.atariz. com/grlogin.htm); sports information (www.atariz.com/pol_ind. Htm); astronomy (www.atariz.com/stareye.html); and non-profit organizations (www.atariz.com/inlgo.html). You don't have to be a lawyer to know that, if anything is an "unfair trade practice," this has to be it. And the key, of course, is the allegation that the whole point of this was to generate traffic in order to shore up advertising revenues on the part of the defendants' sites. But while this may all be interesting, it is not the point of this article.
Of far greater significance to those who operate adult sites is that the complaint goes on to allege - apparently as an independent unfair trade practice and irrespective of any of the other allegations - that the defendants "impeded consumers' ability to exit its adult sites, and by redirecting consumers to other adult sites, and by throwing a seemingly unending cascade of sexual images at them." The memorandum filed by the FTC explains:
"Normally, the 'Back' button on an Internet browser returns the user to the previously visited Web page, but defendant ... disables the Back button so that consumers cannot return to the search engine results page and make another selection. Defendant... further traps consumers by altering the functioning of the 'close it' ('X') button located at the top right corner of the Internet browser screen. Normally this feature allows consumers to exit their browsers and leave the Internet entirely. Instead, when consumers attempt to use this button to exit, defendant... sends them to additional adult sites or serves up additional images forcing consumers to view additional sexually explicit material and advertisements. Thus, by manipulating the functioning of these browser commands, defendant... is able to override consumers' attempts to escape from defendant's... adult sites, and makes consumers' viewing of defendant's... adult sites' images and advertisements unavoidable."
"Mousetrapping", the FTC calls this. And the way these guys allegedly did this, it is unimaginable that there could be a justification for it.
Now, Java scripts - which is where mousetrapping comes from - are everywhere, as we all know. Even some government Web sites have pop-out Java scripts (parenthetically, however, none were apparent on the FTC's Web site). So, where is the line to be drawn?
There are two important things to be learned from all of this. First, the Federal Trade Commission is getting into the Internet business in a very meaningful way. The shenanigans alleged to have been committed by the folks discussed above, incidentally, were mostly off-shore - way off-shore. That did not slow the Commission down one bit! Rather, the Commission claims that it is working with foreign governments to enforce its injunctions elsewhere, as well.
Second, this all raises the question of the extent to which Java scripts will be labeled as "unfair competition." Like most, this area of the law is not developing as quickly as the Internet is expanding. Certainly this will not be the last article on this topic.
