• by Wendy Davis  @wendyndavis, February 17, 2005

A U.S. House of Representatives subcommittee Wednesday approved an amendment to pending anti-spyware bill H.R. 29 that explicitly excludes all cookies from the requirement that companies obtain permission from consumers before downloading software onto their computers.

The amendment, proposed by Rep. Cliff Stearns (R-Fla.), explicitly states that cookies and other text or data files won't be considered "software." Stearns heads The Subcommittee on Commerce, Trade and Consumer Protection, of the Committee on Energy and Commerce; the bill, as amended, now will go to the full committee for approval.

Introduced by Congresswoman Mary Bono (R-Calif.) in January, the so-called "Spy Act" (Securely Protect Yourself Against Cyber Trespass Act) requires companies to obtain consent from consumers before installing software on their computers. The original proposal also exempted cookies from the consent requirement, but defined them more narrowly than many in the ad industry would have liked. Bono's press secretary earlier told OnlineMediaDaily that the bill would likely be revised to make clear that all cookies are excluded.

Online advertising companies hold that requiring them to ask consumers for permission to install cookies would potentially hurt their business--because, if consumers refused, the companies wouldn't be able to target their ads. Currently, some online marketers use cookies to determine how many times viewers have seen certain ads--so they don't continually send the same ad to the same viewer. Some businesses that rely on behavioral targeting also rely on cookies to track consumers across a variety of Web sites, and then serve ads based on which sites the consumer has visited.

The Online Publishers Association, which supported excluding cookies from the bill, approved of the amendment, said President Michael Zimbalist. "Our position is that cookies are not spyware, and the act should fully exclude them," said Zimbalist. He added that he doesn't anticipate that the law will have much of an impact on legitimate online advertisers, assuming the amendment goes through.