In Los Angeles there is apparently still a law on the books that makes licking toads illegal, while in the city of Walnut, Calif., there is a law that reads “No man or boy shall dress as a girl or woman without a permit from the sheriff, except for the purpose of amusement, show or drama.”
These laws probably came about much in the way that a bill sponsored by Texas Rep. Tom Moore of Waco in 1971 got passed. His bill commended Albert DeSalvo of Massachusetts “for his noted activities and unconventional techniques involving population control and applied psychology.”
The point Moore was trying to make was that his fellow lawmakers often didn’t read or understand the bills and resolutions they signed. He made his point quite nicely because DeSalvo was more commonly known as The Boston Strangler, a serial killer responsible for the murders of 13 women between 1962 and 1964.
Last week I saw an interesting piece of legislation get passed by the House that I suspect was equally misunderstood by the lawmakers: This bill was the so-called Spy Act, which defines civil penalties of up to $3 million for spyware distributors.
The Spy Act was sponsored by Rep. Mary Bono (R-Calif.), who, according to a story in the Massachusetts Institute of Technology’s Technology Review, sponsored the Spy Act after “she discovered spyware on her own computer.”
Allow me a small digression here, but doesn’t that seem a little strange? Given the myriad problems we face in our society that really need addressing, such as healthcare, pollution and crime, doesn’t launching a legal jihad on spyware sort of imply that Bono has a surprising amount of time on her hands?
Anyway, the problem with the Spy Act is that it is going to be about as successful in reducing spyware as the CAN-SPAM Act has been in reducing spam, which is to say, hardly at all.
Behind this problem are three factors that would make it extremely difficult, if not impossible, for spyware legislation to do its intended job:
The first is that, despite the fancy wording in the act it doesn’t cover all of the possibilities of how spyware can act and what it might do. This means that interpretations of the law’s applicability will make it hard to get cases to court and even harder to get convictions.
The second reason is spyware is hard to identify even if you have a good definition of what it does. To some, a particular piece of spyware might be useful, while to others it might cripple their systems. Spyware is rather like pornography: terribly hard to define but each of us knows it when we see it.
The third problem is that, according to the act, the responsibility for enforcement of the civil violations lies with the Federal Trade Commission (FTC). According to the Technology Review story, the FTC “has stated that existing laws adequately address the deceptive business practices underlying spyware.”
If that is the case, then why haven’t we seen the FTC prosecute the likes of WhenU and Claria (nee Gator)? Because the FTC doesn’t have the resources to adequately deal with the really important stuff, let alone something as relatively obscure and complex as spyware.
Let’s not forget that such a bill will not go unchallenged by the spyware vendors. In April WhenU managed to get a temporary injunction delaying enforcement of Utah’s anti-spyware law. You should consider that a taste of things to come.
The fact is that laws for controlling inappropriate and unethical uses of technology are always framed after the problem has mutated into wildly different forms and the issues are rarely understood by the lawmakers who sign them off anyway. Want to cure the spyware problem? The answers lie in technology rather than in laws that are as sensible as banning toad licking.
Legal opinions to backspin@gibbs.com.
