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Legal issues[ edit ]

Criminal law[ edit ]

Unauthorized access to a computer is illegal under computer crime laws, such as the U.S. Computer Fraud and Abuse Act , the U.K.'s Computer Misuse Act , and similar laws in other countries. Since owners of computers infected with spyware generally claim that they never authorized the installation, a prima facie reading would suggest that the promulgation of spyware would count as a criminal act. Law enforcement has often pursued the authors of other malware, particularly viruses. However, few spyware developers have been prosecuted, and many operate openly as strictly legitimate businesses, though some have faced lawsuits. [68] [69]

Spyware producers argue that, contrary to the users' claims, users do in fact give consent to installations. Spyware that comes bundled with shareware applications may be described in the legalese text of an end-user license agreement (EULA). Many users habitually ignore these purported contracts, but spyware companies such as Claria say these demonstrate that users have consented.

Despite the ubiquity of EULAs agreements, under which a single click can be taken as consent to the entire text, relatively little caselaw has resulted from their use. It has been established in most common law jurisdictions that this type of agreement can be a binding contract in certain circumstances. [70] This does not, however, mean that every such agreement is a contract, or that every term in one is enforceable.

Some jurisdictions, including the U.S. states of Iowa [71] and Washington , [72] have passed laws criminalizing some forms of spyware. Such laws make it illegal for anyone other than the owner or operator of a computer to install software that alters Web-browser settings, monitors keystrokes, or disables computer-security software.

In the United States, lawmakers introduced a bill in 2005 entitled the Internet Spyware Prevention Act , which would imprison creators of spyware. [73]

Administrative sanctions[ edit ]

US FTC actions[ edit ]

The US Federal Trade Commission has sued Internet marketing organizations under the " unfairness doctrine " [74] to make them stop infecting consumers' PCs with spyware. In one case, that against Seismic Entertainment Productions, the FTC accused the defendants of developing a program that seized control of PCs nationwide, infected them with spyware and other malicious software, bombarded them with a barrage of pop-up advertising for Seismic's clients, exposed the PCs to security risks, and caused them to malfunction. Seismic then offered to sell the victims an "antispyware" program to fix the computers, and stop the popups and other problems that Seismic had caused. On November 21, 2006, a settlement was entered in federal court under which a .75 million judgment was imposed in one case and .86 million in another, but the defendants were insolvent [75]

In a second case, brought against CyberSpy Software LLC, the FTC charged that CyberSpy marketed and sold "RemoteSpy" keylogger spyware to clients who would then secretly monitor unsuspecting consumers' computers. According to the FTC , Cyberspy touted RemoteSpy as a "100% undetectable" way to "Spy on Anyone. From Anywhere." The FTC has obtained a temporary order prohibiting the defendants from selling the software and disconnecting from the Internet any of their servers that collect, store, or provide access to information that this software has gathered. The case is still in its preliminary stages. A complaint filed by the Electronic Privacy Information Center (EPIC) brought the RemoteSpy software to the FTC's attention. [76]

Netherlands OPTA[ edit ]

An administrative fine, the first of its kind in Europe, has been issued by the Independent Authority of Posts and Telecommunications (OPTA) from the Netherlands. It applied fines in total value of Euro 1,000,000 for infecting 22 million computers. The spyware concerned is called DollarRevenue. The law articles that have been violated are art. 4.1 of the Decision on universal service providers and on the interests of end users; the fines have been issued based on art. 15.4 taken together with art. 15.10 of the Dutch telecommunications law. [77]

Civil law[ edit ]

Former New York State Attorney General and former Governor of New York Eliot Spitzer has pursued spyware companies for fraudulent installation of software. [78] In a suit brought in 2005 by Spitzer, the California firm Intermix Media, Inc. ended up settling, by agreeing to pay US.5 million and to stop distributing spyware. [79]

The hijacking of Web advertisements has also led to litigation. In June 2002, a number of large Web publishers sued Claria for replacing advertisements, but settled out of court.

Courts have not yet had to decide whether advertisers can be held liable for spyware that displays their ads. In many cases, the companies whose advertisements appear in spyware pop-ups do not directly do business with the spyware firm. Rather, they have contracted with an advertising agency , which in turn contracts with an online subcontractor who gets paid by the number of "impressions" or appearances of the advertisement. Some major firms such as Dell Computer and Mercedes-Benz have sacked advertising agencies that have run their ads in spyware. [80]

Libel suits by spyware developers[ edit ]

Litigation has gone both ways. Since "spyware" has become a common pejorative , some makers have filed libel and defamation actions when their products have been so described. In 2003, Gator (now known as Claria) filed suit against the website PC Pitstop for describing its program as "spyware". [81] PC Pitstop settled, agreeing not to use the word "spyware", but continues to describe harm caused by the Gator/Claria software. [82] As a result, other anti-spyware and anti-virus companies have also used other terms such as "potentially unwanted programs" or greyware to denote these products.

WebcamGate[ edit ]

Main article: Robbins v. Lower Merion School District

In the 2010 WebcamGate case, plaintiffs charged two suburban Philadelphia high schools secretly spied on students by surreptitiously and remotely activating webcams embedded in school-issued laptops the students were using at home, and therefore infringed on their privacy rights. The school loaded each student's computer with LANrev 's remote activation tracking software. This included the now-discontinued "TheftTrack". While TheftTrack was not enabled by default on the software, the program allowed the school district to elect to activate it, and to choose which of the TheftTrack surveillance options the school wanted to enable. [83]

TheftTrack allowed school district employees to secretly remotely activate the webcam embedded in the student's laptop, above the laptop's screen. That allowed school officials to secretly take photos through the webcam, of whatever was in front of it and in its line of sight, and send the photos to the school's server. The LANrev software disabled the webcams for all other uses ( e.g. , students were unable to use Photo Booth or video chat ), so most students mistakenly believed their webcams did not work at all. In addition to webcam surveillance, TheftTrack allowed school officials to take screenshots, and send them to the school's server. In addition, LANrev allowed school officials to take snapshots of instant messages, web browsing, music playlists, and written compositions. The schools admitted to secretly snapping over 66,000 webshots and screenshots , including webcam shots of students in their bedrooms. [83] [84] [85]

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