|
House Spyware
Bill Modified, Advances
WASHINGTON INTERNET DAILY
JUNE 18, 2004
A House bill aimed at cracking down on spyware cleared a House Commerce
subcommittee Thurs., with full Committee Chmn. Barton (R-Tex.) repeating his vow
to press it through the House. HR-2929 by Reps. Bono (R-Cal.) and Towns (D-N.Y.)
has been the subject of extensive negotiations over the last several months,
particularly following a recent hearing in the House Commerce Subcommittee on
Commerce. Subcommittee Chmn. Stearns (R-Fla.) at a markup Thurs. offered a
substitute amendment resulting from those negotiations, and while it cleared the
subcommittee without debate or objections, some members said they believe the
bill still needs work before it clears the full committee.
HR-2929 would require any software about to be downloaded onto one's computer to
come with explicit warnings about its nature and ability to track one's
information, as well as require an opt-in approach before it was downloaded.
This is a significant legislative departure from past Internet-related
legislation such as the CAN-SPAM Act, which operates on an opt-out basis. In
addition, the software would have to be easily disabled. Software makers have
expressed concern that the bill could make impossible everything from security
patch updates to adult content filtering, while privacy advocates have called
for legislation targeting privacy violations, rather than a definition of
spyware.
"While we have wrestled with numerous and thoughtful definitions" of spyware,
Stearns said, what's indisputable is that a computer user should have the right
to safeguard that computer. He said the revised bill -- negotiated by Stearns
and Subcommittee ranking Democrat Schakowsky
(Ill.), Barton and full Committee ranking Democrat Dingell (Mich.), as well as
Bono and Towns -- takes steps to ensure spyware won't be installed and "provides
permanent eviction for guests that never leave." Stearns noted the bill now
prohibits specific "unfair and deceptive practices" such as keystroke logging
and remote-controlled denial-of-service attacks. It also allows the FTC to
pursue triple damages for each violation, up to 33,000 per violation, or up to 3
million for certain violations. "The key to any successful piece of legislation
is enforcement," Stearns said.
Schakowsky said the bipartisan
negotiations were so open that she would endorse the bill's move to full
committee even though she isn't completely satisfied yet. She wants more work
done on penalties, and wants more assurance the bill isn't too broad.
Schakowsky and Rep. McCarthy (D-Mo.)
both were pleased the bill allows state attorneys gen. to bring cases, and
Schakowsky said "I appreciate that
the bill does not undermine private right-of-action" against spyware operators.
The House Commerce Committee leadership vigorously opposed inclusion of private
right-of-action in last year's spam bill, and its inclusion in the spyware bill
is another congressional shift.
Bono cited a new study by EarthLink and Webroot Software that examined nearly
421,000 computers and found spyware on 1/3 of them. Subcommittee members praised
Bono for aggressively pushing her legislation, including her chief Democratic
cosponsor, Towns. Towns also praised Barton, noting at the spyware hearing the
chairman "said he would move Heaven and Earth to move this legislation. Well, I
understand from staff that Earth has been moved and Heaven is on standby." Like
Schakowsky, he said he wanted to
ensure that the legislation isn't overbroad: "I do not think anyone wants to
pass legislation that stifles legitimate software." Towns said he believed the
substitute bill found the right balance, but noted revisions were done so
quickly "to meet the congressional schedule" and allow it to become law this
year that some changes haven't received outside comment. While open to further
changes, however, Towns said "it is not my intention to support changes that
would undermine the underlying concerns of the bill," namely protecting
individuals' computers and privacy.
Barton continued to be bullish on the bill's chances, even with the limited time
left in an election-year Congress in which appropriations bills remain
unresolved. He vowed to mark it up soon in full committee. Barton cited
bipartisan cooperation on the committee and "excellent cooperation with
stakeholders" for believing the bill could "soon go to the [House] floor, and
sometime this year become law." Senate Communications Subcommittee Chmn. Burns
(R-Mont.) also has a spyware bill, and has been working with software and
privacy experts on a proper spyware definition before marking up his bill at
subcommittee. In a rush to move spam legislation last fall, the House dropped
its effort to move its own legislation and adopted the Senate bill after
negotiating some revisions with the Senate. Barton implied a reverse process
could occur with spyware. Several House members Thurs. referred to a growing
backlash among consumers against spyware and the increasing cost it has on
productivity; a similar backlash sped spam legislation to passage last Dec.
after years of languishing in House and Senate committees.
Congress also was motivated to move spam legislation last year by the passage of
state anti-spam laws, particularly one in Cal. that would have become law this
year if not preempted by CAN-SPAM. Utah enacted a new law earlier this year
against spyware that's opposed by both software and privacy interests as
overbroad; that law is being challenged in court. The Cal. legislature is
advancing spyware legislation. -- Patrick Ross
|
|