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2 Shidler J. L. Com. & Tech. 1 (2005-2006)

handle is hein.journals/washjolta2 and id is 1 raw text is: Corporate & Commercial Cite as: Andrew T. Braff, Defining Spyware: Necessary or Dangerous, 2 Shidler J. L. Corn. &Tech. 1 (Aug. 12, 2005), at <http://www.Ictjournal.washington.edu/Vol2/aOO1Braff.html> DEFINING SPYWARE: NECESSARY OR DANGEROUS By Andrew T. Braffl © 2005 Andrew T. Braff Abstract State legislation attempting to define and proscribe spyware has been criticized for either being under-inclusive or over-inclusive. This article provides an overview of the technology that is commonly considered spyware and examines the potential effects of attempting to legislatively define and curtail spyware as a specific technology. It concludes that a more appropriate method to regulate spyware would focus on prohibiting conduct associated with placing monitoring software on a computer and enforcing existing law regarding such conduct. Table of Contents Introduction Overview of Technology Defining Spyware to Prohibit the Technology Prohibiting Conduct Legislative Restraint in Favor of Existing Law Conclusion INTRODUCTION <1> Studies show that as many as 90 percent of Internet-enabled U.S. home computers are infected with an average of 26 spyware programs.2 Most users are unaware of the presence of such monitoring programs3 until the computer begins malfunctioning or a 'dialer' program hijacks their modem, resulting in exorbitant phone bills.4 Other victims of 'keystroke loggers'- software monitoring information entered onto a personal computer-learn their privacy has been compromised after the damage is done.- <2> A solution to the spyware epidemic that does not prohibit beneficial technologies or turn the Internet into a maze of disclaimers, notices, and end user license agreements (EULAs) has proven elusive. Aside from bills in two states, L attempts to legislate a solution to spyware in 2004 temporarily stalled as states

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