AP: N.Y. Co. Challenges Spyware Control Act

Adware firm WhenU made its opening arguments to a federal judge in Utah yesterday in its bid to get a new Utah anti-spyware law thrown out. It said the recent Utah law was "arbitrary and Draconian" and not even in the purview of the state, as the U.S. Constitution assigns interstate commerce issues to the federal government. Utah's attorney responded by saying the law was reasonably targeted at companies that often trick users into unknowingly installing ad software that interrupts online transactions. He threw in an argument that some ad software has a malevolent intent and can be used to steal users' identities. The hearings continue today.

The law was created in part at the behest of two Utah firms, Overstock.com and 1-800 Contacts, that decided that suing WhenU in federal court would not prove as effective as having their state tailor a law to improve the odds of their success and the potential penalties they could impose. It did not take much instigation, though, for state legislators to run with the idea, seeing that voters everywhere had a growing anger toward ad clutter, spam and, in particular, pop-up ads.

Similar laws have been proposed in many other states, but most of those other bills deal with the more fraudulent aspects of spyware - software that surreptitiously installs itself and does things the user has not approved - versus making illegal any form of adware. At issue in the Utah case is whether or not one state can pass such a law and thereby force the entire country to abide by its policies, as any firm doing business on the Internet could find itself sued. The adware-versus-spyware issue of whether or not ads can be properly targeted against competitor's sites when users have given adware companies permission to do so, will likely be decided in other litigation.