Spyware legislation epidemic
The National Conference of State Legislatures has a terrific roundup of current state spyware bills. After spending some time wandering the virtual state halls, my head is spinning. Many, many state bills have been introduced in the last couple of weeks.
Most importantly for spyware legislation afficionados, Utah is trying again [pdf]. You rmember Utah. They passed a bill that was declared violative of the dormant Commerce Clause back in June 2004. The new 2005 bill has the following slender support from legislative counsel:
Legislative Review Note
as of 1-28-05 11:31 AM
Based on a limited legal review, this legislation has not been determined to have a high probability of being held unconstitutional.
I'm sure that makes everyone in the Utah legislature feel reassured.
Back to the substance, though. The new Utah draft says that it is illegal to display a pop-up ad “by means of spyware” in response to a specific trademark or URL. Spyware is defined broadly to mean software that collects information about a site at the time a user is looking at the site. (The software will be living in a computer in Utah, acc. to the draft bill, so as to avoid any possible commerce clause issues. Yup.)
This is para-trademark. We know that mere prompting of ads (or search results) in response to keyword use of a trademark does not create consumer confusion. But apparently if you do this using “spyware,” you're sunk. At least in Utah.
For reasons I've given before, I don't think this legislative approach makes sense. This Utah bill is an example of the cure perhaps being worse than the disease — the scope of the magic power of a trademark is being extended by a non-trademark piece of legislation. And, of course, it won't work.
I'm going to write a book about What Ben Franklin Would Do Online. In the case of spyware, he wouldn't recommend legislation – he'd create a volunteer spyware brigade.
[And if he did recommend legislation, he'd get a stronger vote of confidence from his lawyer than the Utah bill commanded.]