Three Strikes and Spyware Is Out? Anti-Spyware Bill to Be Given Another At-Bat

Posted by Joe Addiego

Another version of the Securely Protect Yourself Against Cyber Trespass Act, aka the Spy Act (H.R.964), has been drafted and is set to make its rounds through the House. This version of the Spy Act is the third time such a law has been circulated. The first two times, they passed the House but were not approved by the Senate.

The current Spy Act would make it unlawful for any person who is not the owner of a protected computer to take control of that computer, modify its settings, collect personally identifiable information via keystroke logging, inducing the computer’s owner to divulge personally identifiable information or to install software on that computer (without providing an option to decline the installation), and to remove anti-spyware technology from that computer, among other things. The Act also would make it unlawful to collect various types of personal information without the owner’s consent, which must be provided on an opt-in basis. The use of cookies is exempted from the Act.

The Spy Act grants the Federal Trade Commission with enforcement authority, and monetary penalties can be as high as $3 million for each intentional violation of the Act. Further, the Act is intended to preempt all state and local laws that regulate spyware.

The applicability of the Act is delayed for 12 months after its enactment, and it also contains a grandfather clause that excepts from its reach any “information collection program installed on a protected computer before the effective date” of the Act.

The current Spy Act has garnered bi-partisan support, and prior versions were backed by several major high-tech giants, but it is by no means an automatic home run that the new Spy Act will be passed into law. Portions of the Act have met with criticism from certain online advertisers, who claiming that the Act goes beyond just battle spyware by imposing overly onerous notice and consent requirements and opt-in procedures that “may unnecessarily limit business interaction with customers.”

The current status of the Spy Act is that it has been referred to the House Committee on Energy and Commerce.