Expert users may be able to distinguish genuine Windows dialog boxes from Zango's fake ones, but hurried and novice users could easily be duped, Edelman said.
Federal Trade Commission spokesperson Claudia Bourne Farrell said that agency investigations were not public and declined to comment on Zango's compliance with its settlement agreement. She did state however that, "the agency enforces its orders."
Zango's response in the past to Edelman's allegations has been to impugn the motives of the messenger. "There are people, and I won't identify anyone specifically, but if you look at the loud detractors of us in particular -- not of the space, because spyware is a problem -- but the loud detractors of Zango, most of them, if not all of them, have a direct financial benefit to continue to churn out fear about us and about this space," said Smith in November. "Whether they're selling software or consulting services, they have a direct financial incentive to make us look bad."
And that remains the company's position. "Ben does have a financial incentive here," said McGraw. "He purports to be an independent academic but he does benefit commercial from reports like this. It's not unnoticed by us that as a paid consultant in litigation against Zango, he uses this in order to garner extra fees from his client base."
Zango too has a financial incentive here, as can be inferred from its decision to sue security company PC Tools Limited, which makes a program called Spyware Doctor that uninstalls Zango's software.
In June, Zango lost the first round in that case when the judge denied Zango's application for a temporary restraining order. The judge said it was unlikely Zango would prevail in its allegations of tortious interference, trade libel, or violations of the Washington Consumers Protection Act. The judge considered PC Tools classification of Zango's software as something to be removed to be reasonable "given Zango's past conduct" and other companies' assessment of Zango's software.
Zango paid $3 million as part of its FTC settlement. The company has taken in at least $40 million in venture capital, not to mention revenue from the 6.9 billion ads the FTC said last November that Zango had served.
Some at the FTC see such fines as insufficient. In a letter of dissent to a $1.5 million settlement the FTC reached with another adware company, DirectRevenue LLC, FTC commissioner Jon Leibowitz lamented the inadequacy of the penalty. "[T]he $1.5 million in monetary relief that the Commission obtained as part of the consent order is a disappointment because it apparently leaves DirectRevenue's owners lining their pockets with more than $20 million from a business model based on deceit," he said.