Is Anti-Spyware Legislation Congress's Killer App In 2006?

But a closer look reveals that states, Congress and the Federal Trade Commission have not yet reached a consensus on what spyware is and how best to address enforcement. State anti-spyware laws, such as those in California and Texas, protect different groups of computer users, define spyware violations differently, and impose dissimilar remedies and enforcement mechanisms. As of this writing, competing U.S. House and Senate spyware bills are crafted differently than state laws and do not agree with one another on activities included as spyware violations, provisions for notice to computer owners, and penalties. Further, House and Senate versions do not uniformly provide for express pre-emption. Moreover, the shortened term of an election year makes it less certain that Congress will tackle spyware legislation. At the same time, the FTC has successfully brought several spyware cases, without specific federal legislation, and recent statements make it clear that the FTC is seeking, at most, the authority from Congress to pursue civil penalties in spyware cases.

These factors strongly suggest that even if Congress does act on spyware this year, the legislation is likely to offer an incomplete solution to computer users and, for legitimate online behavioral advertisers, to leave substantial litigation questions unaddressed.