Spyware: Background and Policy Issues for Congress

Spyware: Background and
Policy Issues for Congress
Updated November 25, 2008
Patricia Moloney Figliola
Specialist in Telecommunications and Internet Policy
Resources, Science, and Industry Division

Spyware: Background and Policy Issues for Congress
The term “spyware” generally refers to any software that is downloaded onto a
computer without the owner’s or user’s knowledge. Spyware may collect
information about a computer user’s activities and transmit that information to
someone else. It may change computer settings, or cause “pop-up” advertisements
to appear (in that context, it is called “adware”). Spyware may redirect a Web
browser to a site different from what the user intended to visit, or change the user’s
home page. A type of spyware called “keylogging” software records individual
keystrokes, even if the author modifies or deletes what was written, or if the
characters do not appear on the monitor. Thus, passwords, credit card numbers, and
other personally identifiable information may be captured and relayed to
unauthorized recipients.
Some of these software programs have legitimate applications the computer user
wants. They obtain the moniker “spyware” when they are installed surreptitiously,
or perform additional functions of which the user is unaware. Users typically do not
realize that spyware is on their computer. They may have unknowingly downloaded
it from the Internet by clicking within a website, or it might have been included in an
attachment to an electronic mail message (e-mail) or embedded in other software.
The Federal Trade Commission (FTC) issued a consumer alert on spyware in
October 2004. It provided a list of warning signs that might indicate that a computer
is infected with spyware, and advice on what to do if it is.
Several states have passed spyware laws, but there is no specific federal law.
Thus far, two bills have been introduced in the House of Representatives (H.R. 964
and H.R. 1525) and one has been introduced in the Senate (S. 1625). Both of the
House bills have been reported and referred to the Senate. The Senate bill was
referred to committee and no further action has been taken.
Note: This report was originally written by Marcia S. Smith; the author
acknowledges her contribution to CRS coverage of this issue area.

Background ......................................................1
FTC Advice to Consumers ..........................................3
State Laws.......................................................4
Legislative Action — 110th Congress..................................5
H.R. 964 — Securely Protect Yourself Against Cyber Trespass Act......5
H.R. 1525 — Internet Spyware Prevention Act.......................5
S. 1625 — Counter Spy Act......................................6
Additional Reading................................................7
Appendix: Bills in the 108th and 109th Congresses........................8

109th Congress................................................8th

108 Congress................................................8

Spyware: Background and Policy Issues for
Congress is debating whether to enact new legislation to deal with the growing
problem of “spyware.” The Anti-Spyware Coalition (ASC)1 defines spyware as
“technologies deployed without appropriate user consent and/or implemented in ways
that impair user control over (1) material changes that affect their user experience,
privacy, or system security; (2) use of their system resources, including what
programs are installed on their computers; and/or (3) collection, use, and distribution2
of their personal or other sensitive information.
The main issue for Congress is whether to enact new legislation specifically
addressing spyware, or to rely on industry self-regulation and enforcement actions by
the Federal Trade Commission (FTC) and the Department of Justice under existing
law. Opponents of new legislation argue that industry self-regulation and
enforcement of existing laws are sufficient. They worry that further legislation could
have unintended consequences that, for example, limit the development of new
technologies that could have beneficial uses. Supporters of new legislation believe
that current laws are inadequate, as evidenced by the growth in spyware incidents.
Advocates of legislation want specific laws to stop spyware. For example, they
want software providers to be required to obtain the consent of an authorized user of
a computer (“opt-in”) before any software is downloaded onto that computer.
Skeptics contend that spyware is difficult to define and consequently legislation
could have unintended consequences, and that legislation is likely to be ineffective.
One argument is that the “bad actors” are not likely to obey any opt-in requirement,
but are difficult to locate and prosecute. Also, some are overseas and not subject to
U.S. law. Other arguments are that one member of a household (a child, for
example) might unwittingly opt-in to spyware that others in the family would know

1 The ASC is dedicated to building a consensus about definitions and best practices in the
debate surrounding spyware and other potentially unwanted technologies. Composed of anti-
spyware software companies, academics, and consumer groups, the ASC seeks to bring
together a diverse array of perspective on the problem of controlling spyware and other
potentially unwanted technologies. It’s members include AOL, Cyber Security Industry
Alliance, McAfee, Microsoft, SurfControl, US Coalition Against Unsolicited Commercial
Email, and Yahoo. A complete list of the group’s members is available online at
[http://www.antispywar ecoalition.org/ about/index.htm] .
2 For examples of different types of spyware, see [http://www.antispywarecoalition.org/
documents/DefinitionsJ une292006.htm] .

to decline, or that users might not read through a lengthy licensing agreement to
ascertain precisely what they are accepting.
In many ways, the debate over how to cope with spyware parallels the
controversy that led to unsolicited commercial electronic mail (“spam”) legislation.3
Whether to enact a new law, or rely on enforcement of existing law and industry self-
regulation, were the cornerstones of that debate as well. Congress chose to pass the
CAN-SPAM Act (P.L. 108-187). Questions remain about that law’s effectiveness
(see CRS Report RL31953). Such reports fuel the argument that spyware legislation
similarly cannot stop the threat. In the case of spam, FTC officials emphasized that
consumers should not expect any legislation to solve the spam problem — that
consumer education and technological advancements also are needed. The same is
true for spyware.
Software programs that include spyware may be sold or available for free
(“freeware”). They may be on a disk or other media, downloaded from the Internet,
or downloaded when opening an attachment to an electronic mail (e-mail) message.
Typically, users have no knowledge that spyware is on their computers. Because the
spyware is resident on the computer’s hard drive, it can generate pop-up ads, for
example, even when the computer is not connected to the Internet.
One example of spyware is software products that include, as part of the
software itself, a method by which information is collected about the use of the
computer on which the software is installed, such as Web browsing habits. Some of
these products may collect personally identifiable information (PII). When the
computer is connected to the Internet, the software periodically relays the information
back to another party, such as the software manufacturer or a marketing company.
Another oft-cited example of spyware is “adware,” which may cause advertisements
to suddenly appear on the user’s monitor — called “pop-up” ads. In some cases, the
adware uses information that the software obtained by tracking a user’s Web
browsing habits to determine shopping preferences, for example. Some adware
companies, however, insist that adware is not necessarily spyware, because the user
may have permitted it to be downloaded onto the computer because it provides
desirable benefits.
Spyware also can refer to “keylogging” software that records a person’s
keystrokes. All typed information thus can be obtained by another party, even if the
author modifies or deletes what was written, or if the characters do not appear on the
monitor (such as when entering a password). Commercial key logging software has
been available for some time.4 In the context of the spyware debate, the concern is

3 See CRS Report RL31953, “Spam”: An Overview of Issues Concerning Commercial
Electronic Mail, by Marcia S. Smith.
4 The existence of keylogging software was publicly highlighted in 2001 when the FBI, with
a search warrant, installed such software on a suspect’s computer, allowing them to obtain
his password for an encryption program he used, and thereby evidence. Some privacy
advocates argued that wiretapping authority should have been obtained, but the judge, after
reviewing classified information about how the software works, ruled in favor of the FBI.

that such software can record credit card numbers and other personally identifiable
information that consumers type when using Internet-based shopping and financial
services, and transmit that information to someone else. Thus it could contribute to
identity theft.5
Spyware remains difficult to define, however, in spite of the work done by
groups such as the ASC and government agencies such as the Federal Trade
Commission (FTC).6 As discussed below, this lack of agreement is often cited by
opponents of legislation as a reason not to legislate. Opponents of anti-spyware
legislation argue that without a widely agreed-upon definition, legislation could have
unintended consequences, banning current or future technologies and activities that,
in fact, could be beneficial. Some of these software applications, including adware
and keylogging software, do, in fact, have legitimate uses. The question is whether
the user has given consent for it to be installed.
An October 2007 report on spyware law enforcement by the Center for
Democracy and Technology (CDT) summarizes active and resolved spyware cases
at the federal and state levels.7 Additionally, the FTC maintains its own list of cases.8
FTC Advice to Consumers
The FTC has consumer information on spyware that includes a link to file a9
complaint with the commission through its “OnGuard Online website. The FTC has
also issued a consumer alert about spyware that lists warning signs that might10
indicate a computer is infected with spyware. The FTC alert listed the following

4 (...continued)
Press reports also indicate that the FBI is developing a “Magic Lantern” program that
performs a similar task, but can be installed on a subject’s computer remotely by
surreptitiously including it in an e-mail message, for example.
5 For more on identity theft, see CRS Report RS22082, Identity Theft: The Internet
Connection, by Marcia S. Smith; and CRS Report RL31919, Remedies Available to Victims
of Identity Theft, by Angie A. Welborn.
6 The FTC has a spyware information page on its website, [http://www.ftc.gov/spyware].
Further, a report from the FTC’s April 2004 workshop on spyware is available online at
[http://www.ftc.gov/os/2005/03/050307spywarerpt.pdf]. This report contains a discussion
on the difficulties of defining spyware.
7 The full report is available online at [http://www.cdt.org/privacy/spyware/


8 Available online at [http://www.ftc.gov/bcp/edu/microsites/spyware/law_enfor.htm].
9 Available online at [http://onguardonline.gov/spyware.html].
10 Available online at [http://www.ftc.gov/bcp/conline/pubs/alerts/spywarealrt.htm].

!a barrage of pop-up ads
!a hijacked browser — that is, a browser that takes you to sites other
than those you type into the address box
!a sudden or repeated change in your computer’s Internet home page
!new and unexpected toolbars
!new and unexpected icons on the system tray at the bottom of your
computer screen
!keys that don’t work (for example, the “Tab” key that might not
work when you try to move to the next field in a Web form)
!random error messages
!sluggish or downright slow performance when opening programs or
saving files.
The FTC alert also offered preventive actions consumers can take:
!update your operating system and Web browser software
!download free software only from sites you know and trust
!don’t install any software without knowing exactly what it is
!minimize “drive-by” downloads by ensuring that your browser’s
security setting is high enough to detect unauthorized downloads
!don’t click on any links within pop-up windows
!don’t click on links in spam that claim to offer anti-spyware software
!install a personal firewall to stop uninvited users from accessing
your computer.
Finally, the FTC alert advised consumers who think their computers are infected
to get an anti-spyware program from a vendor they know and trust; set it to scan on
a regular basis, at startup and at least once a week; and delete any software programs
detected by the anti-spyware program that the consumer does not want.
Reviews of some of the commercially available anti-spyware programs are
available in magazines such as PC World and Consumer Reports
[http://www.pcworld.com/howto/article/0,aid,118215,00.asp] or at Spyware Warrior
[ h ttp://www.spywarewarrior.com] .
State Laws
In March 2004, Utah became the first state to enact spyware legislation
(although a preliminary injunction prevented it from taking effect, and the Utah
legislature passed a new law in 2005 amending the 2004 act).11 According to the
National Conference of State Legislatures, during 2007, at least 14 states considered

11 WhenU, an adware company, filed suit against the Utah law on constitutional grounds.
(WhenU’s President and CEO, Avi Naider, testified to the Senate Commerce Committee’s
Subcommittee on Communications about spyware in March 2004. The Third Judicial
District Court in Salt Lake City, Utah granted a preliminary injunction on June 22, 2004,
preventing the law from taking effect. See Judge Grants NY Pop-Up Company Preliminary
Injunction Against Spyware Law. Associated Press, June 23, 2004, 06:06 (via Factiva).

spyware legislation and two enacted/adopted anti-spyware legislation: Arkansas and
Virginia. 12
Legislative Action — 110th Congress
During the 110th Congress, two bills have been introduced in the House of
Representatives and one bill has been introduced in the Senate; the House has held
two hearings.
H.R. 964 — Securely Protect Yourself Against Cyber
Trespass Act
The “SPY ACT” was introduced by Representative Towns on February 8, 2007,
and a hearing on it was held by the Committee on Energy and Commerce
Subcommittee on Commerce, Trade and Consumer Protection on March 15, 2007.13
This bill would make it unlawful to engage in unfair or deceptive acts or practices to
take unsolicited control of computer, modify computer settings, collect personally
identifiable information, induce the owner or authorized user of the computer to
disclose personally identifiable information, induce the unsolicited installation of
computer software, and/or remove or disable a security, anti-spyware, or anti-virus
technology. This bill would also require the FTC to submit two reports to Congress.
The first report would be on the use of cookies in the delivery or display of
advertising; the second would be on the extent to which information collection
programs were installed and in use at the time of enactment.
H.R. 964 was reported by the House Committee on Energy and Commerce on
May 24, 2007,14 and referred to the Senate Committee on Commerce, Science, and
Transportation on June 7, 2007. No further action has been taken.
H.R. 1525 — Internet Spyware Prevention Act
The “I-SPY” Act was introduced by Representative Lofgren on March 14, 2007,
and a hearing on it was held by the Committee on the Judiciary Subcommittee on
Crime, Terrorism, and Homeland Security on May 1, 2007.15 This bill would amend

12 The 2007 report is available online at [http://www.ncsl.org/programs/lis/spyware07.htm].
Links to the reports for 2004, 2005, and 2006 are available on the 2007 report page.
Additional information is available online at [http://www.benedelman.org/spyware/
13 Information on this hearing, including a list of witnesses, witness testimony, and a link to
the hearing broadcast archive are available online at [http://energycommerce.house.gov/
14 H. Rep. 110-169. Available online at [http://www.congress.gov/cgi-lis/cpquery/
15 Information on this hearing, including a list of witnesses, witness testimony, and a link to
the hearing webcast are available online at [http://judiciary.house.gov/

the federal criminal code to impose a fine and/or prison term of up to five years for
intentionally accessing a protected computer16 without appropriate authorization by
causing a computer program or code to be copied onto the protected computer and
intentionally using that program or code in furtherance of another federal criminal
offense. The bill would impose a fine and/or prison term of up to two years if the
unauthorized access was for the purpose of——
!intentionally obtaining or transmitting personal information17 with
intent to defraud or injure a person or cause damage to a protected
!intentionally impairing the security protection of a protected
computer with the intent to defraud or injure a person or damage
such computer.
H.R. 1525 was reported by House Committee on the Judiciary, where it was
reported on May 21, 2007,18 and then referred to the Senate Committee on the
Judiciary on May 23, 2007. No further action has been taken.
S. 1625 — Counter Spy Act
The Counter Spy Act was introduced by Senator Pryor on June14, 2007. This
bill would prohibits unauthorized installation on a protected19 computer of “software
that takes control of the computer, modifies the computer’s settings, or prevents the
user’s efforts to block installation of, disable, or uninstall software.” It also would
prohibit the installation of “software that collects sensitive personal information
without first providing clear and conspicuous disclosure. . . and obtaining the user’s
consent. Additionally, S. 1625 would prohibit installation of software that “causes
advertising windows to appear (popularly known as adware) unless: (1) the source
is clear and instructions are provided for uninstalling the software; or (2) the
advertisements are displayed only when the user uses the software author’s or
publisher’s website or online service.”
This bill was referred to the Senate Committee on Commerce, Science, and
Transportation on June 14, 2007, and a hearing was held on June, 11, 2008.

15 (...continued)
Hearings .aspx?ID=170].
16 A protected computer is defined in this bill as “a computer exclusively for the use of a
financial institution or the U.S. government
17 For example, a Social Security number or other government-issued identification number,
a bank or credit card number, or an associated password or access code.
18 H. Rep. 110-169. Available online at [http://www.congress.gov/cgi-lis/cpquery/
19 A protected computer is defined in this bill as “ a computer used in interstate or foreign
commerce or communication.”

Additional Reading
Federal Trade Commission “Microsite” on Spyware [Web page]. Available
online at [http://www.ftc.gov/bcp/edu/microsites/spyware/index.html].
Anti-Spyware Coalition [Web page]. Available online at
[ h ttp://www.antispywarecoalition.org] .
Center for Democracy and Technology, Spyware Enforcement [Report], October

2007. Available online at [http://www.cdt.org/privacy/spyware/

20071015SpywareEnforcement.pdf] .

Webroot, State of Spyware Report — Q2 2006 [Report]. Available online at
[ h ttp://www.webroot.com/pdf/2006-q2-sos-US.pdf] .
Pew Internet & American Life Project, Spyware: The Threat of Unwanted
Software Programs is Changing the Way People Use the Internet [Report], July 2005.
Available online at [http://www.pewinternet.org/pdfs/PIP_Spyware_Report_July_


Federal Trade Commission, Monitoring Software on Your PC: Spyware,
Adware, and Other Software, March 2005 [Report]. Available online at
[http://www.ftc.gov/os/2005/03/050307spywarerpt.pdf]. The workshop agenda,
transcript, panelist presentations, and public comments received by the Commission
are available online at [http://www.ftc.gov/bcp/workshops/spyware/index.htm].

Appendix: Bills in the 108th and 109th Congresses
109th Congress
Two bills passed the House on May 23, 2005 — H.R. 29 (Bono) and H.R. 744
(Goodlatte) — both of which were very similar to legislation that passed the House
in the 108th Congress.
Three bills were introduced in the Senate — S. 687 (Burns), which is similar to
legislation that was considered in 2004, but did not reach the floor (S. 2145); S. 1004
(Allen); and S. 1608 (Smith). S. 687 and S. 1608 were ordered reported from the
Senate Commerce Committee in 2005. At the markup that favorably reported S. 687,
the committee rejected Senator Allen’s attempt to substitute the language of his bill
(S. 1004) for the text of S. 687. S. 687 was placed on the Senate Legislative
Calendar under general Orders, Calendar no. 467, on June 12, 2006. S. 1608 was
referred to the House Committee on Energy and Commerce Subcommittee on
Commerce, Trade, and Consumer Protection, on April 19, 2006.
108th Congress
The House passed two spyware bills in the 108th Congress — H.R. 2929 and
H.R. 4661. The Senate Commerce Committee reported S. 2145 (Burns), amended,
December 9, 2004 (S.Rept. 108-424). None of these bills cleared that Congress.
The Senate Commerce, Science, and Transportation Committee’s Subcommittee
on Communications held a hearing on spyware on March 23, 2004. The House
Energy and Commerce’s Subcommittee on Telecommunications and the Internet held
a hearing on April 29, 2004. The House passed two spyware bills (H.R. 2929 and
H.R. 4661) and the Senate Commerce Committee reported S. 2145, but there was no
further action.