Here's one spyware solution: Sue the bastards

Can you sue the spyware problem out of existence? The Collins Law Firm in Naperville, IL is giving it a try. In March it filed a class action suit against Direct Revenue LLC, a provider of “free advertising-supported software.” In September a Judge gave its approval for the lawsuit to go forward. It then filed a similar suit against 180 Solutions Inc., purveyor of adware-supported tools such as 180search Assistant and Zango.

“What we saw were a lot of people coming to us and telling us about all the problems they were having with unwanted software,” says David Fish, attorney at the law firm. “We did an investigation and found that a lot of the causes were against a lot of the companies that we sued.” The next step, says Fish will be to “ask the court to allow millions of American computer owners to join together in a class action lawsuit.”

Will suing stop the problem? I doubt it. While Collins Law can go after the big players in the adware market, the shadier distributors of adware and spyware are a different breed. Those outfits are best targeted by law enforcement, not through civil actions. “Unfortunately a lot of them are hard to track down,” Fish admits. And lawyers will be disinclined to go after targets that don’t have deep pockets.

Some good may have come of all this, however. Negative publicity may already be forcing high-profile players to clean up their business models. “We believe that we’ve already accomplished a lot. We’re starting to see many in the adware and spyware industry starting to change their practices,” Fish says.

Indeed, 180 Solutions recently announced a new version of its client software that supposedly blocks unauthorized installations of the product. It also plans to transition its distributors to the new search product called S3. And on September 27th, Direct Revenue announced plans to rein in third-party affiliates who distribute its products and go through its own “distribution partners.” While Collins Law claims credit for these developments, pressure had in fact been mounting on adware vendors to clean up their collective act for some time. Regardless, Fish says more must be done. “We think its important to have a federal injunction behind these changes to make sure that a year from now the companies don’t go back to their old ways,” he says.

One issue with adware and spyware is just how you define it. Some users will willingly put up with adware in exchange for the free software provided. And they should be able to do so. So how does Fish define acceptable adware versus actionable spyware activity? “To me the bottom line is people shouldn’t have to have files on their machine they don’t want there. Whether they call it adware or spyware people should have the right to control their property.” That broad definition is tricky and brings in issues of disclosure and intent. If it were that easy, the Anti-Spyware Coalition wouldn’t be struggling with its own definition.

Fish hopes to enlist both consumers and small businesses in the class action lawsuit. “We’ve been contacted by lots of businesses who have had their operations crippled for several days where they can’t do sales because of spyware,” he says.

For the enterprise, however, the concern remains unwanted software in general and eliminating circumstances where the user unknowingly downloads spyware. Large enterprise software vendors such as Microsoft will also increasingly play a role in pressuring adware companies to change their business practices (See my previous blog entry,  Microsoft and the spyware conundrum and Plugging the Windows Hole, a sidebar to this week’s cover story on spyware). For more on how enterprises are addressing the spyware problem, see Spy Stoppers Fight Back.


Copyright © 2005 IDG Communications, Inc.

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