Court Allows CyberSpy To Resume Selling Spyware

cyberspy softwareA federal district court in Florida has ruled that a spyware purveyor may resume sales of its keystroke logging software.

With the ruling, judge Gregory Presnell reversed an injunction issued earlier last month that completely banned sales of the program. Now, the vendor-- CyberSpy Software of Orlando, Fla.--may sell its keystroke logging programs, but can no longer market them by telling consumers that they can be installed without users' knowledge.

CyberSpy takes the position that people may lawfully install whatever software they wish--including spyware--on computers they own, even if other people use the machines. The company says that its clients tend to be parents who want to monitor their children's computer activity or employers who want to keep tabs on their workers.

Presnell appeared to partially accept CyberSpy's reasoning, holding that parents' use of the software might be legitimate. Nonetheless, he wrote, stealth installations were potentially harmful. "It may be necessary in some circumstances to install the monitoring software remotely," he wrote. "But the clandestine remote installation of RemoteSpy on the computer of an unrelated person is fraught with potential abuse."

Despite the critical language, Presnell's order only limits CyberSpy's marketing efforts, while paving the way for buyers to purchase the product and install it without informing users.

CyberSpy has asked the court to dismiss the Federal Trade Commission's complaint, arguing that there is nothing unfair or deceptive about its product. The company also alleges that there is no evidence that its product has been used to harm anyone economically. "Commercial monitoring software products, such as the target product, are not used in the real world to commit identity theft," the company wrote in court papers.

The FTC brought legal proceedings against CyberSpy and sought an injunction after the advocacy group Electronic Privacy Information Center filed a complaint with the agency against the company.

The FTC's complaint alleged that CyberSpy instructed clients how to mask the spyware program as an e-mail attachment. When recipients clicked on it, the program allegedly installed itself in the background and then recorded all keystrokes.

Marc Rotenberg, executive director of EPIC, said the organization believes such keylogging software should be taken off the market. He also indicated that the privacy concerns are broader than fears about identity theft. "In many circumstances keylogger software may violate federal and state computer crime law. It may also violate common law privacy torts," he said.

Rotenberg added that even if the computers themselves are owned by people other than the users, such as employers, they should still notify users about the existence of surveillance software.

Spyware has drawn the attention of online ad executives, partly because of a concern that consumers' fears about identity theft could dissuade them from using the Web. Earlier this year, those concerns spurred the Interactive Advertising Bureau to praise Congress for passing legislation that makes it easier to prosecute some computer fraud cases.

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