One of the key elements appears to be defining spyware based on the consent of the computer owner rather than the computer user. If a law is enacted which claims that the user must have knowledge of and consent to such monitoring then products designed to monitor employee activity on company-owned computers or for parents to monitor the actions of their children while using the computer would also be outlawed. Further, many users and owners do actually have knowledge of and gave consent for such activity, they just didn’t stop to read the EULA before clicking “yes” to accept its terms and move on with installing the freeware program they downloaded.
The legality of burying unscrupulous or plain illegal actions within the gibberish and legalese in an EULA is a whole separate issue which should also be handled at some point. Companies have a right to define the relationship and the bounds under which the user agrees to use the software, but knowing that nobody actually reads the EULA it seems exceptionally underhanded to slide things in that users obviously wouldn’t agree to if they knew about it. On the other hand, that doesn’t excuse users from agreeing to binding legal documents without reading what they are agreeing to first. We’ll cover that another time though.
The Business Software Alliance which includes Microsoft and Hewlett-Packard among others supports creating a law that targets illegal activities such as collecting information on users or hijacking their Web browsers, but without infringing on legitimate marketing or business practices commonly used by many companies. It seems that all parties are pretty much in agreement regarding spyware and the desire to eliminate spying on computers without the owner’s knowledge. The issues now seem to center around finding the right wording to make the illegal stuff illegal without making legitimate software and actions illegal with it.
UPDATE: As of Friday, June 25 the United States House of Representatives Energy and Commerce Committee approved the SPY ACT Act in a vote of 45-4. It will now move out of committee and to consideration on the House floor. For more information see this article on Yahoo Anti-Spyware Bill Moves To House Floor