Gaining unauthorized access to a computer is illegal, under computer crime laws such as the United States Computer Fraud and Abuse Act. Since the owners of computers infected with spyware generally claim that they never authorized the installation, a prima facie reading would suggest that the promulgation of spyware would count as a criminal act. Law enforcement has often pursued the authors of other malware programs, such as viruses. Nonetheless, few prosecutions of writers of spyware have occurred, and many such producers operate openly as aboveboard businesses. Some have, however, faced lawsuits.

Spyware producers primarily argue in defense of the legality of their acts that, contrary to the users’ claims, users do in fact give consent to the installation of their spyware. Spyware that comes bundled with shareware applications may appear, for instance, described in the legalese text of an end-user license agreement (EULA). Many users habitually ignore these purported contracts, but spyware companies such as Claria claim that these demonstrate that users have consented to the installation of their software.

Despite the ubiquity of EULAs and of clickwrap agreements, relatively little case law has resulted from their use. It has been established in most common law jurisdictions that a clickwrap agreements can be a binding contract in certain circumstances. This does not however mean that every clickwrap agreement is a contract or that every term in a clickwrap contract is enforceable. It seems highly likely that many of the purported contract terms presented in clickwrap agreements would be dismissed in most jurisdictions as being contrary to public policy. Many spyware clickwrap agreements appear intentionally ambiguous and excessive in length, with key contract terms made inconspicuous. These are all grounds on which similar agreements have been rejected as contracts of adhesion.

Nor can a contract possibly exist in the case of spyware installed by surreptitious means, such as in a drive-by download where the user receives no opportunity to either agree to or refuse the contract terms.

Some jurisdictions, including the U.S. states of Iowa [1] and Washington [2], have passed laws criminalizing some forms of spyware. Such laws make it illegal for anyone other than the owner or operator of a computer to install software that alters Web-browser settings, monitors keystrokes, or disables computer-security software.

New York Attorney General Eliot Spitzer has pursued spyware companies for fraudulent installation of software. [9] In a suit brought in 2005 by Spitzer, the California firm Intermix Media, Inc. ended up settling by agreeing to pay $7.5 million and to stop distributing spyware. Intermix’s spyware spread via drive-by download, and deliberately installed itself in ways that made it difficult to remove. ^[1]

Another spyware behavior has attracted lawsuits: the replacement of Web advertisements. In June 2002, a number of large Web publishers sued Claria for replacing advertisements, but settled out of court. Other spyware apart from Claria’s also replaces advertisements, thus diverting revenue from the ad-bearing Web site to the spyware author.

One legal issue not yet pursued involves whether courts can hold advertisers responsible for spyware which displays their ads. In many cases, the companies whose advertisements appear in spyware pop-ups do not directly do business with the spyware firm. Rather, the advertised company contracts with an advertising agency, which in turn contracts with an online subcontractor who gets paid by the number of “impressions” or appearances of the advertisement. Some major firms such as Dell Computer and Mercedes-Benz have “fired” advertising agencies which have run their ads in spyware. ^[2]

In a sort of turnabout, a few spyware companies have threatened websites which have posted descriptions of their products. In 2003, Gator (now known as Claria) filed suit against the website PC Pitstop for describing the Gator program as “spyware”. ^[3] PC Pitstop settled, agreeing not to use the word “spyware”, but continues to publish descriptions of the harmful behavior of the Gator/Claria software. [3]

References

1. ↑ Gormley, Michael. “Intermix Media Inc. says it is settling spyware lawsuit with N.Y. attorney general“. Yahoo! News. June 15, 2005.
2. ↑ Gormley, Michael. “Major advertisers caught in spyware net“. Business Week. June 24, 2005.
3. ↑ Festa, Paul. “See you later, anti-Gators?“. News.com. October 22, 2003.

This guide is licensed under the GNU Free Documentation License. It uses material from the Wikipedia.

The California legislature found that spam cost United States organizations alone more than $10 billion in 2004, including lost productivity and the additional equipment, software, and manpower needed to combat the problem.

Spam’s direct effects include the consumption of computer and network resources, and the cost in human time and attention of dismissing unwanted messages. In addition, spam has costs stemming from the kinds of spam messages sent, from the ways spammers send them, and from the arms race between spammers and those who try to stop or control spam. In addition, there are the opportunity cost of those who forgo the use of spam-afflicted systems. There are the direct costs, as well as the indirect costs borne by the victims – both those related to the spamming itself, and to other crimes that usually accompany it, such as financial theft, identity theft, data and intellectual property theft, virus and other malware infection, child pornography, fraud, and deceptive marketing.

The methods of spammers are likewise costly. Because spamming contravenes the vast majority of ISPs’ acceptable-use policies, most spammers have for many years gone to some trouble to conceal the origins of their spam. E-mail, Usenet, and instant-message spam are often sent through insecure proxy servers belonging to unwilling third parties. Spammers frequently use false names, addresses, phone numbers, and other contact information to set up “disposable” accounts at various Internet service providers. In some cases, they have used falsified or stolen credit card numbers to pay for these accounts. This allows them to quickly move from one account to the next as each one is discovered and shut down by the host ISPs.

The costs of spam also include the collateral costs of the struggle between spammers and the administrators and users of the media threatened by spamming. See [1].

Many users are bothered by spam because it impinges upon the amount of time they spend reading their e-mail. Many also find the content of spam frequently offensive, in that pornography is one of the most frequently advertised products. Spammers send their spam largely indiscriminately, so pornographic ads may show up in a work place e-mail inbox—or a child’s, the latter of which is illegal in many jurisdictions. Recently, there has been a noticeable increase in spam advertising websites that contain child pornography.

Some spammers argue that most of these costs could potentially be alleviated by having spammers reimburse ISPs and individuals for their material. There are two problems with this logic: first, the rate of reimbursement they could credibly budget is not nearly high enough to pay the direct costs; and second, the human cost (lost mail, lost time, and lost opportunities) is basically unrecoverable.

E-mail spam exemplifies a tragedy of the commons: spammers use resources (both physical and human), without bearing the entire cost of those resources. In fact, spammers commonly do not bear the cost at all. This raises the costs for everyone. In some ways spam is even a potential threat to the entire e-mail system, as operated in the past.

Since e-mail is so cheap to send, a tiny number of spammers can saturate the Internet with junk mail. Although only a tiny percentage of their targets are motivated to purchase their products (or fall victim to their scams), the low cost sometimes provides a sufficient conversion rate to keep spamming alive. Furthermore, even though spam appears not to be economically viable as a way for a reputable company to do business, it suffices for professional spammers to convince a tiny proportion of gullible advertisers that it is viable for those spammers to stay in business. Finally, new spammers go into business every day, and the low costs allow a single spammer to do a lot of harm before finally realizing that the business is not profitable.

Some companies and groups “rank” spammers; spammers who make the news are sometimes referred to by these rankings (Spamhaus’ “TOP 10 spam service ISPs”, The 10 Worst ROKSO Spammers ). The necessary secretiveness of the operations makes uncertainty about how they actually determine “how bad” a spammer is unavoidable. Also, spammers may target different networks to different extents, depending on how successful they are at attacking the target. Thus considerable resources are employed to actually measure the amount of spam generated by a single person or group. For example, victims that use common antispam hardware, software or services provide opportunities for such tracking. Nevertheless, such rankings should be taken with a grain of salt.

To better understand the cost of spam to an organization, MX Logic Email Defense has posted a cost of spam calculator on their website.

Continuously updated statistics from postini track the ebb and flow of e-mail abuse without ranking spammers.

This guide is licensed under the GNU Free Documentation License. It uses material from the Wikipedia.