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A turn in the antispyware war?

Center for Democracy and Technology's Ari Schwartz says the import of a recent ruling should be a boon to the global antispyware community.

    In a case that threatened to undermine the effectiveness of antispyware technology, a federal court last month sided with consumers when it ruled that companies can't be sued for providing Internet users with effective tools to protect themselves against online threats.

    The case pitted Kaspersky Lab--which offers a range of antispyware and antivirus tools--against notorious adware distributor Zango.

    A ruling in favor of Zango would have had wide-ranging negative impact, not just for Kaspersky, but for all antispyware developers, and, in turn, for the millions of consumers who rely on those companies to keep their computers free of unwanted, often malicious programs.

    Thankfully, U.S. District Court Judge John Coughenour sided with Kaspersky, holding that the Communications Decency Act immunized the company against Zango's claims and giving users of antispyware software the comfort of knowing that their antispyware software can alert them about the potential risks of all questionable software.

    Although the law protects consumers' rights to determine what goes on their own computers, it is antispyware and antivirus technologies that allow consumers to enforce those rights.

    It's difficult to overstate the importance of this ruling. A Consumer Reports study suggests that spyware will cost consumers $1.7 billion this year alone. At its best, unwanted adware/spyware is a persistent nuisance that saps vital computer resources, and at its worst it is a debilitating threat that can crash systems, open security holes and rob victims of their identities.

    The good news is that the damage from spyware is down from $2.6 billion in 2006 due mostly to the growth of the antispyware industry and law enforcement action--including the Federal Trade Commission's recent $4 million settlement with Zango.

    The global antispyware community--a group that includes security companies, consumer advocates, legislators and government agencies--has mounted a multipronged attack that includes lawsuits, novel legislative approaches and the aggressive enforcement of consumer protection laws. But the single most important factor in getting the spyware threat under control has been the profusion of powerful, effective technologies designed to help users protect themselves against online threats.

    Although the law protects consumers' rights to determine what goes on their own computers, it is antispyware and antivirus technologies that allow consumers to enforce those rights.

    Zango's lawsuit was a gambit intended to strike at the very heart of that essential resource.

    The danger of the Zango suit and others like it is that deep-pocketed adware distributors (in 2004 Zango was named to Inc. magazine's list of the 500 fastest-growing private companies) will be able to use legal intimidation to bully antispyware distributors into hobbling the tools they provide for consumers. Judge Coughenour's ruling is an important step toward putting a stop to that approach by making it clear that antispyware software makers

    • Qualify for liability protections as interactive computer service providers under law because they allow users to choose to connect to a remote server to retrieve new definitions files

    • May subjectively and according to their own criteria label material objectionable

    • Do not have to follow a "good faith" standard when labeling software objectionable

    While this ruling suggests that antispyware companies have a lot of latitude in flagging software, the industry has recognized that users expect that antispyware companies must do due diligence in their decision-making. In fact, under the auspices of the Anti-Spyware Coalition, the antispyware industry has developed its own set of voluntary self-regulatory working reports that define spyware; set out objective criteria for flagging unwanted software, and lay out an approach that lets antispyware companies quickly and equitably resolve disputes with other software makers.

    User empowerment is the best response we have to emerging Internet threats. The more control consumers have over their own computers, the less likely they are to fall victim to the unceasing flood of scams and exploits that menace the global Internet.

    If we are going to continue to win the battle against spyware, legislators and the courts must continue to defend a robust, competitive marketplace for user empowerment tools.