Freedom to Tinker

The Utah state legislature has passed an anti-spyware bill, which now awaits the governor’s signature or veto. The bill is opposed by a large coalition of infotech companies, including Amazon, AOL, AT&T, eBay, Microsoft, Verizon, and Yahoo.

The bill bans the installation of spyware on a user’s computer. The core of the bill is its definition of “spyware”, which includes both ordinary spyware (which captures information about the user and/or his browsing habits, and sends that information back to the spyware distributor) and adware (which displays uninvited popup ads on a user’s computer, based on what the user is doing). Leaving aside the adware parts of the definition, we’re left with this:

(4) Except as provided in Subsection (5), “spyware” means software residing on a computer that:

(a) monitors the computer’s usage;
(b) (i) sends information about the computer’s usage to a remote computer or server; or [adware stuff omitted]; and
(c) does not:

(i) obtain the consent of the user, at the time of, or after installation of the software but before the software does any of the actions described in Subsection (4)(b):

(A) to a license agreement:

(I) presented in full; and
(II) written in plain language;

(B) to a notice of the collection of each specific type of information to be transmitted as a result of the software installation; [adware stuff omitted]
and

(ii) provide a method:

(A) by which a user may quickly and easily disable and remove the software from the user’s computer;
(B) that does not have other effects on the non-affiliated parts of the user’s computer; and
(C) that uses obvious, standard, usual, and ordinary methods for removal of computer software.

(5) Notwithstanding Subsection (4), “spyware” does not include:

(a) software designed and installed solely to diagnose or resolve technical difficulties;
(b) software or data that solely report to an Internet website information previously stored by the Internet website on the user’s computer, including:

(i) cookies;
(ii) HTML code; or
(iii) Java Scripts; or

(c) an operating system.

Since all spyware is banned, this amounts to a requirement that programs that meet the criteria of 4(a) and 4(b) (except those exempted by 5), must avoid 4(c) by obtaining user consent and providing a suitable removal facility.

The bill’s opponents claim the definition is overbroad and would cover many legitimate software services. If they’re right, it seems to me that the notice-and-consent requirement would be more of a burden than the removability requirement, since nearly all legitimate software is removable, either by itself or as part of a larger package in which it is embedded.

I have not seen specific examples of legitimate software that would be affected. A letter being circulated by opponents refers generically to “a host of important and beneficial Internet communication software”, that gather and communicate data that “may include information necessary to provide upgrade computer security, to protect against hacker attacks, to provide interactivity on web sites, to provide software patches, to improve Internet browser performance, or enhance search capabilities”. Can anybody think of a specific example, in which it would be burdensome to obtain the required consent or to provide the required removal facility?

[Opponents also argue that the bill’s adware language is overbroad. That in itself may be enough to oppose the bill; but I won’t discuss that aspect of the bill here.]

The report of a preliminary investigation into the Senate file pilfering has been released (in two parts) by Senate Sergeant-at-Arms Bill Pickle.

The report mostly confirms what was reported previously: many files on the shared server were unprotected, so that anybody who knew how could get them; a clerk working for the Republican staff, under the direction of a senior Republican staffer, accessed more than 4,000 of the Democrats’ files; and some of the juiciest files were leaked to the press, probably by the aforementioned Republican staffer.

The report also contradicts some claims made previously. It is clear from the report that the availability of the files was not widely known. The report also shows that the people making the accesses worked to cover their tracks, both during and after the time when the accesses occurred. It also appears that the Republican staff member who oversaw the accesses made false statements to the investigators.

I wrote before that it wasn’t clear whether the accesses violated the Computer Fraud and Abuse Act (CFAA). The key question in applying the CFAA to these facts was whether the staffers were “entitled to” access the particular files they downloaded; and the answer to that question depends on the rules and practices of the Senate.

The issue still isn’t clear-cut, but the facts recounted in the report tend to tip the balance toward violation of the CFAA. The accessors’ efforts to cover their tracks, both during and after the accesses, are revealing. And the report tells how the clerk, on initially discovering the files were accessible, took a pile of printed-out opposition files to one of his supervisors, who shredded the files and “admonished [the clerk] not to use the … documents”. These facts, plus the apparent false statements made to the investigators, tend to support the argument that the clerk and the staffer knew that the accesses were improper.

The report makes no recommendation for or against a referral of the CFAA matter to the Justice Department. That decision is in the hands of the Senators.

There seems to be an active rivalry between the authors of competing computer viruses, with back-and-forth insults included in the textual comments within each virus, according to a Mike Musgrove story in today’s Washington Post.

Witty repartee it’s not: “Bagle – you are a looser!!!” But one does worry about what will come next, if the loosers decide to escalate from a war of words to an e-war. If that happens, the next step will be new virus versions that try to inoculate victims’ machines against rival viruses. And don’t expect the kind of clean, surgical inoculation you get from a good antivirus product, but a crude rewiring of the victims’ software configuration, causing all sorts of trouble.

In the worst (but unlikely) case, this could escalate into a full-on game of distributed core wars, with rampaging malware armies clashing in the computers of people foolish enough to click on the wrong attachments.

Let’s hope this doesn’t happen. And let’s all remember to update our antivirus software and be very suspicious of email attachments.