Commentary: As most of us know, spyware is something that is hard to define. As Justice Potter Stewart said in the famous Supreme Court opinion, Jacobellis v. Ohio, 378 U.S. 184 (1964), “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it . . . .” He was referring to obscenity, but he could just as easily have been discussing spyware.

Perhaps a reasonable definition would be a program that allows a third party to monitor another’s computer activities. As one might imagine, since most people have an expectation of privacy in their own computer operations, when a third party surreptitiously monitors that usage, lawsuits inevitably follow.

However, those lawsuits are not always successful. In Zango v. Kaspersky, Lab, Inc., No. C07-0807 (W.D. Wash. August 28, 2007), a lawsuit was brought against a company that manufactured software that had inserted spyware on another’s system. The Court ruled in favor of the software manufacturer. It based its holding on Section 230(c)(2)(b) of the Communications Decency Act based on a determination that the software manufacturer was an “access software provider” and that it had provided a means to restrict the utility of the spyware. Similarly, in Zango v. PC Tools Pty. Ltd., 494 F. Supp. 2d 1189 (W.D. Wash. 2007), the Court concluded that the spyware was a legitimate tool to prevent illegal downloading.

On the other hand, there are certainly other lawsuits in which the spyware claim has been successful. One notable example is Kerins v. Intermix Media, Inc., No. 05-4408 (C.D. Cal. 2006) in which California state law was the basis for the Court’s ruling that the claims could proceed. But, it is important to keep in mind that California has numerous state laws that are specifically applicable to Internet and computer related acts. Many of these provisions do not have counterparts in other states. It would therefore not be surprising to see a claim that failed elsewhere succeed under California law.

The law of spyware is constantly evolving. Only time will tell whether current law provides sufficient remedies to those adversely affected by it.

Comments/Questions: ljm@gdnlaw.com

© 2008 Nissenbaum Law Group, LLC