New accusations about “spyware” were leveled Friday — this time Netscape
Communications finds itself at the center of the controversy.
A class action lawsuit filed June 30th in a federal court in New York
accuses Netscape and its parent company America
Online Inc. (NYSE:AOL) of
electronically
eavesdropping on
communications between website operators and the visitors who download files
from them.
At issue is SmartDownload, a file transfer utility bundled with the Netscape
Navigator browser that gives
users the ability to pause and resume downloads, among other features.
The complaint was filed on behalf of lead plaintiff Christopher Specht, a
photographer who operates the lawphoto.com web site. It alleges that
SmartDownload transmits back to Netscape the name and location of any filed
transferred using Smartdownload, along with a unique identifier. It does all
this, according to attorneys representing the class, without knowledge or
permission of the webmaster or browser user, and that constitutes a
violation of both the Computer Fraud and Misuse Act and the Electronic
Communications Privacy Act.
“His electronic communications are being intercepted surreptitiously, and
it’s an invasion of his privacy. It may be incremental, and it may not be as
egregious as others, but it’s an invasion of his right to have his
information held private,” said Joshua Rubin, an attorney with Abbey Gardy
and Squitieri in New York which is handling the case.
Rubin said members of the proposed class consist of any U.S. web site that
offers .zip files or .exe files for download, a number he estimated to be in
the tens of thousands. End-users of SmartDownload, which potentially number
in the millions, are not part of the class.
Netscape officials were not available for comment. But according to a list
of frequently asked questions at the Netscape site, the back-channel
information transmission appears to be part of a feature the company calls
SmartDownload Profiling and is designed to enable Netscape to send
customized information about a file the user is downloading. According to
the FAQ, not only is the uploaded information not saved, but the
feature can also be disabled through the advanced set-up button on the
SmartDownload program.
Recently, RealNetworks (NASDAQ:RNWK)
faced similar criticism
although not a lawsuit for a utility called Download Demon. The program
comes bundled with the full versions of the RealPlayer 7 and Real Player
Plus 7 and sends data about file transfers back to RealNetworks. The company
has denied the information gathering is a violation of users’ privacy.
Netscape’s SmartDownload is not on the list of “Known Spyware” maintained
by Steve Gibson, developer of a tool called OptOut.
Plaintiff’s attorneys want a jury trial, an injunction against AOL-Netscape,
as well as statutory damages of $100 per day or $10,000 per user, whichever
is greater.
