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New York Company Challenges Utah's Spyware Law

WhenU.com, which delivers pop-up ads, says the law violates its free-speech rights and has asked a judge to block enforcement pending resolution of a constitutional challenge.
SALT LAKE CITY (AP) -- A New York company that delivers Internet pop-up ads has asked a judge to block enforcement of Utah's new anti-spyware law pending resolution of a constitutional challenge.

WhenU.com Inc. claims the law, which took effect last month, is "arbitrary and Draconian" and violates its free-speech rights.

WhenU lawyers told 3rd District Judge Joseph Fratto Jr. on Thursday that regulation of advertising on the Internet is a matter of interstate commerce subject to federal, not state, jurisdiction.

But an attorney representing the state, Blake Miller, said the Utah Legislature had a role in trying to prohibit interruptions to online transactions.

WhenU provides users with free software like games and screen savers. The software comes with a separate program, SaveNow, that tracks Web traffic and matches a user's surfing habits with particular advertisers.

Ads "pop up" when there's a match. For example, a consumer browsing a travel site might be offered deals on hotels or rental cars, though that travel site has nothing to do with the ads.

The Spyware Control Act, passed earlier this year, makes it illegal to create or install computer software that monitors Internet activity and sends the information elsewhere, usually without the user being aware of it or consenting to it.

Miller said computer users often are tricked into accepting bait software, or are not fully informed of how it will affect their computer. The state contends that some spyware has malevolent intent and may be used to steal computer users' identities.

WhenU maintains its advertising software, which is used by 21 million people each month, is only installed on computers with users' consent and does not gather private information.

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