A challenge to the constitutionality of Utah's new anti-spyware law got over its first hurdle, with a judge here handing down a temporary injunction against the law taking effect.
WhenU.com, a New York-based adware maker whose product is itself a target of lawsuits, sued Utah in April to challenge the new law. Chief executive Avi Naider called the temporary injunction an important decision for the whole Internet advertising industry.
"Spyware is a problem, and we want to put an end to it," Naider told reporters. "WhenU supports anti-spyware legislation at the federal level, but Utah's act unfortunately impairs legitimate online advertising as well."
WhenU sued in April to stop the law, a month after it was used in an infringement suit. 1-800-Contacts sued Coastal Contacts in March, accusing Coastal Contacts of using WhenU and other adware to send ads that infringe on some of the company's trademarks.
Internet Alliance executive director Emily Hackett said her group was thrilled over the temporary injunction. The group, whose members include Microsoft, America Online, and eBay, had opposed earlier drafts of the Utah law and questioned aloud, when WhenU first sued, whether Utah was trying to regulate a certain technology all the way, as opposed to regulating how it was used.
"I think it was brilliant," Hackett told AVNOnline.com about the temporary injunction order. "We expected there would be serious constitutional questions about the bill, [questions such as] freedom of speech, interstate commerce, and the Utah bill is written very broadly and to us clearly includes legal activity."
Hackett had earlier said spyware and popups are not innately bad softwares, and she maintained that position after the temporary injunction. "If you need an update on your software, for a security program, a popup will appear saying updates are available," she said. "So if you have a contractual agreement with a software company that wants to alert you and they want to up date you for free, a popup is the way generally you get that information."
But Hackett and Internet Alliance believe that is something entirely different from malicious programmers using softwares to take over Websites or computers. "We believe that, if someone uses software to take over somebody's Website or computer, and give them information that they don't want, and they do it secretly, then that is fraud," Hackett said. "And that's already illegal. The activity that Utah is after is already illegal. It would be better served by enforcing current law than creating a new law that raises these questions, which are going to be expensive to answer."
She emphasized, however, that Internet Alliance might believe WhenU isn't always practicing their business "the way we might want them to, but if they're doing what they say they're doing – getting permission, not collecting personal information, not taking over someone's Website or computer," then they've done nothing wrong.
Utah was the first state to pass an anti-spyware/adware law. The law prohibits companies from installing programs that report user actions online, send personal data to other companies, or throws up popup ads without user consent. Exemptions include ads sent up by standard HTML or Java, and the ordinary cookies used to personalize Web pages.
Spyware and adware are usually bundled unobtrusively with other softwares and are often difficult if not impossible to uncover and uninstall. Their prevalence and effects are such that a number of anti-spyware and adware software programs – including and especially Spybot Search and Destroy and Ad-Aware – are being offered free and getting heavy download action from various tech Websites.
