Under the Computer Fraud and Abuse Act, it is illegal and constitutes a criminal offense to access a computer without permission or authorization from its owner or user. This is the only local legislation consumers have to stand on in their fight against spyware.

Unfortunately, its provisions are so easily contested by spyware makers. Users can only site prima facie evidence that they never authorized any installation of the offending spyware. But clearly ,the fact that so few spyware authors faced prosecution, criminally indicting spyware makers still has a long way to go. Most of these makers operate blatantly as there are no specific laws against spyware development and installation.

Spyware producers hide behind the end-user license agreement or EULA that come with downloaded software that may contain spyware. It is argued that merely clicking “ok” on the EULA gives outright consent for the spyware installation. But it is doubtful anyone reads these EULAs and its “clickwrap” provisions.

Some states like Washington and Iowa have laws that make spyware makers criminally liable for installing software that alters browser configurations, disables computer security and monitors PC usages without the owner’s consent. In 2005, US Lawmakers introduced the Internet Spyware Prevention Act that should stem spyware development with imprisonment for their makers. It is hoped that the bill will make it as a law soon enough.

There have been successful litigations against spyware makers. In 2005, Intermix Media, Inc. settled $7.5 million and ceased to distribute spyware after a civil suit was lodged by Governor Eliot Spitzer of the state of New York. The famous suit against Claria for hijacking advertisements from legitimate companies was settled out of court in 2002.

It is still a gray area if advertisers can be liable for using spyware to display ads on unsuspecting users. Some merchants do have advertisers who subcontract with spyware makers to do online advertisements and get paid by the number of “clicks” on their banner ads. But some companies like Dell Computer have made it their policy not to deal with advertising agencies that have similar spyware subcontracts.

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