New Bill Targets Spyware Profits

UPDATED: U.S. Sen. George Allen (R-Va.) wants the federal government to seize the
profits of companies and individuals secretly installing spyware on
computers. He’s also seeking significantly higher civil and criminal
penalties for those trafficking spyware.

Unlike other anti-spyware bills before Congress that focus on creating new
laws to combat spyware, Allen’s new bill beefs up the authority of the
Federal Trade Commission (FTC) to prosecute spyware intrusions.

“Federal officials believe that they already have adequate authority under
existing statutes to prosecute spyware purveyors,” Allen said. “Law
enforcement is not stymied by the lack of federal jurisdiction, but rather
from the lack of overall resources.”

Allen said the government’s current authority to prosecute spyware hustlers
falls under the Federal Trade Commission Act and the Computer Fraud and
Abuse Act. Since, he claims, the authority is already there, “Congress must
focus its efforts on providing adequate resources and penalties to combat
the problem.”

Although a copy of the bill is not yet available, Allen said the legislation
also calls for “disgorgement” of profits made on illegal spyware activity.

“In other words, get after the ill-gotten gains of these criminals,” he
said. “The proceeds can be used to actually fund further prosecutions.”

Allen also threw a sharp elbow at pop-up adware firms that are fighting current efforts requiring them to obtain a user’s consent before installing their trafficking software.

“Every legitimate business associated with the Internet has a clear interest
in eliminating spyware,” he said. “In fact, false and misleading practices
associated with spyware threaten consumer confidence and harm the Internet
as a viable medium for communications and electronic commerce.”

More than a year ago, the FTC told Congress
the solution to spyware is more likely to be found in better technology
solutions and intensive consumer education than in either state or federal

In November, FTC Commissioner Orson Swindle again questioned the need for new laws.

“Our experience at the Department of Justice and at the FTC is that
[current] law is adequate,” Swindle said. “Most, if not all, spyware is
executed under a deceptive cloud. If people are deceived, it’s a deceptive

The House ignored the FTC’s position, passing two anti-spyware bills last
year, but neither measure came to a vote in the Senate. This year, new
anti-spyware legislation is pending a floor vote in the House while the
Senate begins hearings on the matter.

“All of us can agree that under no circumstances is it acceptable to
deceptively monitor a consumer’s activities online,” Allen said Wednesday.
“I prefer market-driven solutions, but I believe Congress can take an active

According to Allen, his legislation will also provide the FTC with authority
to share and coordinate information with foreign law enforcement officials
in order to “bring cases and prosecute international spyware purveyors.”

A study conducted in October 2004 by America Online and the National Cyber
Security Alliance found that some type of spyware program was loaded on
approximately 80 percent of the surveyed computers.

Allen noted that the survey showed that the average infected computer had
more than 90 spyware programs on it.

“Since spyware violators are not limited to state or national borders to
perpetrate their illegal activity — the legislation will set a national
standard for the unfair and deceptive practices associated with spyware,”
Allen said.

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