I-SPY and SPY Act have passed Congress, but some experts believe the bills miss the heart of the problem - and leave those who fight against adware/spwyare at risk

On Monday, May 23, 2005 Congress passed two separate bills designed to take the spy out of spyware. The first bill, the Internet Spyware Prevention Act of 2005 (I-SPY) imposes stiffer jail sentences and multi-million-dollar fines for those convicted of distributing spyware. The second bill, Securely Protect Yourself Against Cyber Trespass Act (SPY Act) also imposes stiffer penalties upon conviction, but it goes a step further and imposes stricter policies regarding opt-in notices and consent agreements.

Adware at the heart of the problem
However well-intentioned these bills may be, some feel they don't reach far enough.

On May 11, 2005, Ari Schwartz, Associate Director of the Center for Democracy and Technology, testified before the Senate Commerce Committee regarding the problem of adware and spyware. According to Schwartz, "the heart of this problem is the affiliate-marketing business model by which many advertising applications ("adware") are spread." Warning that the "potential of the Internet will be substantially harmed if the current spyware epidemic continues", Schwartz asserted that "the affiliate issue has become a central aspect of the spyware epidemic." According to the CDT, "Finding ways to effectively reform affiliate relationships will remove a linchpin of spyware purveyors' operations." Read Schwartz's full testimony here)

Microsoft weights in on issue
The CDT is not the only powerhouse calling for a rewrite. Microsoft has asked the Senate to step up to the plate and address the problem of frivolous lawsuits used to force anti-spyware vendors from detecting certain adware programs. In a May 23rd statement regarding the passage of these bills, Jack Krumholtz, Managing Director of Federal Government Affairs for Microsoft states, "In its current form, these bills leave companies that are responding to consumer demand for strong anti-spyware tools vulnerable to frivolous lawsuits brought by the very companies responsible for the proliferation of spyware and other deceptive software. We are hopeful that the Senate will include in its bill a provision to prevent those who traffic in spyware from suing companies like Microsoft to keep them from providing these valuable consumer protections." (Read Microsoft's full statement here

Forced censorship
Anti-spyware vendors may not be the only ones who need protection from adware and spyware vendors. As noted spyware expert Ben Edelman explains on his website, "Those who make spyware detection / removal software, or who otherwise write about spyware, have come to receive threats from the companies they detect, remove, and write about." (Read Edelman's index of these threats)

One such victim, Cloudeight, has publicly posted the threatening letters they've received from Hotbar, an Israeli-owned company that develops advertising supported software, commonly referred to as adware. Though the topic is serious, one can't help but chuckle at the humor Cloudeight interjected in their rebuttal letter to Hotbar. In that rebuttal, Cloudeight states, "We got a letter from you last July 2004 asking us to "Cease and Decease" (which we interpreted as Cease and Desist, since telling one to cease and die is not appropriate)."

Cloudeight has also issued a call-to-arms (a definite must read) in which they provide chilling insight into the end effect of these threats. According to Cloudeight, "If we are gagged by threats from Internet bullies, then others like us will be gagged as well. And, after a time, the real truth will be hard to separate from the lies and misrepresentations. And, you the consumer, will forfeit the opportunity of making informed decisions. If all you have to go on is the advertising hype and misrepresentations of spyware/adware/malware companies, how many more computers will be ruined? How many more adware/spyware/malware programs will be developed to harvest your browsing habits and sell you to the highest bidder? And, more importantly, how will YOU separate the wheat from the chaff if you are only allowed to hear one side of the story?"

Indeed.

Disclaimer: It should be noted that the author of this article has also received correspondence from Hotbar objecting to her designation of Hotbar as adware.