• by Mark Naples , February 4, 2005

It was reported in Thursday's MediaPost and elsewhere that the so-called Spyware Bill, which resided in the Senate during the last Congress as House Resolution (HR) 2929 and will likely enter the Senate as Senate Bill (SB) some other number, is not expected to contain any provisions intended to regulate or otherwise restrict the use of cookies as it exits in the House.

That would be good news to most in our industry, especially the publishers and ad serving companies who would likely have to make substantial changes to their disclosure practices, if not their business models, should cookies be punitively regulated against. But, as with the Super Bowl this Sunday, I'm going to withhold all predictions and watch the game instead.

Why would I throw cold water on this? Think about it this way - we're only a few plays into the second quarter of this game. And the real game-breakers (the Senate) haven't even taken the field yet.

While it's true that the press secretary from the House sponsor's office [Rep. Mary Bono (R-CA)], has reported that the House Committee on Energy and Commerce is currently rewriting the bill to exempt all cookies, it's also true that there are many layers and players involved with any bill in Congress, especially such a populist one as this.

Rep. Bono introduced HR 2929 for consumers afflicted with computer problems created by drive-by spyware vendors in mind. At least that is what has been her office's company line. Committee Chair Joe Barton (R-TX) is the man who is in charge of this bill until it leaves the House for the Senate, and Rep. Barton angrily announced to a packed hearing chamber last year, that he is going to make the Spyware Bill law with or without the help of other lawmakers.

Targeting the companies who drop software on unwitting users' hard drives is the sort of thing that gets a Congress member's name in the evening news - not to mention it can help one become regarded as a populist on Capitol Hill.

So Rep. Bono and others worked to expand the bill. The version that passed the House last year by an enormous margin, as MediaPost's Wendy Davis reported yesterday, required consumers to affirmatively opt-in to receive cookies that track behavior across more than one site, while excepting cookies installed by individual sites, for subscriptions, and other purposes.

Between rich media companies, remnant ad servers, behavioral targeting, and other tactics, some sites may have as many as seven different redirects at work on a typical day's user sessions. Imagine what a new opt-in for each of these would mean for otherwise legitimate online businesses. This is why I issued a clarion call last summer to everyone in our industry to get involved with fighting this bill, and informing lawmakers.

In an effort to make HR 2929 appear as consumer-friendly as possible, House Energy and Commerce staff may have overstepped while forgetting about the bill's original targets. But Rep. Barton wants very much to have something that looks like HR 2929 pass into the Senate and have a fighting chance to become law. Look for what comes out of committee markup to look far less punitive than what went in, and not just with regard to cookies.

Remember, it was not the companies that provide an opportunity for opt-in that was in Rep Bono's crosshairs originally. It was the companies with names you've never heard before. I wrote about some of these last year and I even mentioned a few of these companies by name, only to be threatened with legal action. Gotta hate being right.

The Senate is far less interested in anything so populist as regulation of a growing industry. But, this game is far too early to predict, and the bill is weeks away from even getting across the Capitol from the House of Representatives to the Senate. Stay tuned - it may be many years before something so directly relevant and impactful to our industry happens in D.C. again.