Utah has already made it illegal (although a state court has struck downthis law as unconstitutional). Even though the Federal Trade Commissionhas concluded that new regulation of spyware is unnecessary, the U.S.Congress is moving forward with its own regulation which would preemptstate laws such as Utah’s. Meanwhile, Internet users are bombarded withads trying to sell them technologies that purport to detect and eliminatespyware which may (or may not) have been installed on their computers whenthey signed up for a product or service on the Internet.
Is spyware the latest form of malware, along with viruses, worms, spam, andfile-sharing of illicit content? Or are technologies embedded in users’computer systems that monitor certain functions and offer updates,services, or ads for products users might want an engine of e-commerce thatshould remain unregulated and indeed encouraged? How does and how shouldthe law define “spyware”? What kind of notice and consent should berequired before installation of such software is permitted? Whatobligations (if any) do makers of spyware or users of spyware have as tocollection and transmission of personally identifiable information? Aresome forms of spyware surveillance unlawful, even criminal? Does spywaremake user computers more insecure? What intellectual property rights (ifany) are implicated by spyware that serves ads to users of websites thathave their own ads to offer? Should states or the federal governmentregulate spyware, or is effective regulation impossible given the globalnature of the Internet and the ease with which off-shore servers canprovide havens?
These are among the questions that will be addressed at the ninth annualconference, co-sponsored by the Berkeley Center for Law and Technology andthe Berkeley Technology Law Journal.