A Look At The Law: Can The Government Have An Impact On Spyware?

The Can-Spam law, which has been in effect for a year, hasn't had much success in squelching unsolicited E-mail.

George V. Hulme, Contributor

January 14, 2005

2 Min Read

The Can-Spam law, which has been in effect for a year, hasn't had much success in squelching unsolicited E-mail. Earlier this month, MX Logic Inc., a messaging security firm that monitors compliance with the anti-spam legislation, reported that for 2004, an average of just 3% of unsolicited E-mail complied with the legislation's requirements, which range from legitimate return addresses to a way to opt out of further messages. Legal experts and business-technology professionals say they hope that laws aimed at reducing adware and spyware will fare somewhat better.

The states are on the move in crafting anti-spyware legislation. Last March, then Utah Gov. Olene Walker signed into law the Spyware Control Act, which bans the installation of spyware without the user's consent. At the start of this year, a similar law went into effect in California that enforces a $1,000 penalty per violation. As the 109th Congress convened this month, Rep. Mary Bono, R-Calif., also reintroduced her anti-spyware bill that includes civil fines up to $3 million for violators.

"Think about if you've installed spyware on 1,000 or 100,000 systems," says Michael Overly, a technology attorney with law firm Foley & Lardner. Fines such as those included as part of the California law are "a big threat if you are a company with real assets."

Still, Overly notes the new laws aren't entirely necessary. The federal Computer Fraud and Abuse Act already makes it illegal for unauthorized system intrusions, he says. Other legal experts point out that Title 5 of the Federal Trade Commission Act enables the FTC to chase down anyone conducting deceptive trade practices, and the Electronic Communications Privacy Act also could be used to squash those who send out spyware.

Despite the apparent toothlessness of the Can-Spam law, IT executives haven't given up hope that government actions can have an impact on that problem. Seventy-nine percent of 400 business-technology professionals surveyed in the InformationWeek Research study want the federal government to take a more active role in controlling spam. That may or may not help. "The vast majority of people sending spam will continue whether it's legal or not," Overly says. "The underlying problem is that enforcement would take a tremendous amount of resources. The fact remains that if you engage in sending spam, you likely will never be prosecuted."

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About the Author(s)

George V. Hulme


An award winning writer and journalist, for more than 20 years George Hulme has written about business, technology, and IT security topics. He currently freelances for a wide range of publications, and is security blogger at InformationWeek.com.

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