Commentary

We're From Washington, and We're Here to Help - Spyware Legislation Is Coming

If your organization cares about the future of eCommerce and/or interactive advertising, make sure you or someone on your team is watching what's going on here in your nation's capital.

In case you missed it, Congressman Joe Barton of Texas introduced last week HR 29 which looks to be a strong signal of what Spyware legislation will look like. And while there is time to work through its ins and outs, most experts think some law will be passed this year.

Do not under estimate both the zeal and the fear that this bill is generating on Capitol Hill. The zeal is based in large part on extraordinary voter support for last year's do-not-call legislation -- "protecting privacy" of any stripe has hero-making potential written all over it. The fear means that few members of Congress are eagerly willing to weed into the details, because an assault on ANY bill called a "spyware" bill is like attacking your constituent's mother.

We've all had our browser gummed up from some annoying, hard-to-remove, unsolicited piece of software, so what could be wrong with a law to kill it?

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Well, to speak in vintage, even presidential, Washingtonianese, it all depends on what you mean by "it."

There is a spectrum that ranges from the very good, to the very bad, to the somewhere in between in the technology that brings us spyware, notes Christine Varney, a partner at a top D.C. law firm, Hogan and Hartson, and one of the town's leading authorities on privacy. And these distinctions are all but lost in the current legislation.

We all know "The Bad" -- keystroke logging, browser hijacking, and other malicious or surreptitious actions imposed upon the individual with no warning or choice. These, according to Varney, are probably already illegal from current laws and regulations.

We all love "The Good" -- think IM, online banking (Intuit and check writing), Dell Computer and its remote diagnostics. These all require downloadable software that you want in order to enhance and even enable functionality.

The middle brings us smack into the adware debate with folks like Claria and When U. Folks like free software, and if they are willing to take ads in exchange for it, perhaps a consumer should have that choice. Publishers continue to be extremely concerned about ads, not their own, being dumped in and around their site experiences. This is certainly a reasonable consumer choice and copyright debate, but has far less to do with privacy per se.

The middle also raises the question of third-party cookies - the essence of interactive advertising, and certainly for progressively better targeting. Are "good" cookies a wonderful way to help consumers, or are they spyware?

The problem is that the legislation treats the whole spectrum the same. "Congress is mixed up in all three behaviors, when in fact what we're talking about is the same software. And this bill is aiming at the technology and not the behavior," notes Varney. Language in the bill focuses on broad "use of this technology," not making any distinction between the good, the bad, and the middle.

One can empathize with the complexities here, as the obvious "fixes" often bring problems of their own. At one level, it sounds good to order that any software should be easily uninstalled if the consumer wants out. But this is more complicated than it seems, and may be more business/consumer issues than legislative ones. Uninstall a Microsoft browser and you can crash the operating system. Intuit is made up of multiple pieces, uninstalling any one or more of which can corrupt the broader system. The legislation requires "clear and conspicuous notice" for any third-party cookies, which again, may seem reasonable on the surface, but impractical for all the eCommerce and useful advertising out there.

Players are beginning to mobilize on the distinctions here, but the onus they are under is great. High-flying Internet companies versus apple pie, who would you bet on?

There is going to be a lot of noise on this bill, but some law is likely coming. Don't get caught unawares. Now is the time to rally patient, thoughtful education on the clear distinctions. Privacy and technological efficacy and efficiency are not mutually exclusive in these new worlds, in fact they go hand in hand.

"Make things as simple as possible," Einstein once said, "but never too simple." If those of us who know better sit on our hands, "too simple" is inevitable.

And the cost to users and the benefits they garner from eCommerce and interactive advertising could not be higher.

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