Coddling Spies: Why the Law Doesn’t Adequately Address Computer Spyware

By: Alan F. Blakley, Daniel B. Garrie & Matthew J. Armstrong

Consumers and businesses have attempted to use the common law of torts as well as federal statutes like the Computer Fraud and Abuse Act, the Stored Wire and Electronic Communications and Transactional Records Act, and the Wiretap Act to address the expanding problem of spyware. Spyware, which consists of software applications inserted into another’s computer to report a user’s activity to an outsider, is as innocuous as tracking purchases or as sinister as stealing trade secrets or an individual’s identity. Existing law does not address spyware adequately because authorization language, buried in “click-through” boilerplate, renders much of current law useless. Congress must act to make spyware companies disclose their intentions with conspicuous and clearly-stated warnings.

Cite: 2005 Duke L. & Tech. Rev. 0025