By Lesley Fair

Some get their foot in the door through trickery, hiding their evil intentions behind a veneer of legitimacy.  Others sneak in by stealth, silently exploiting an unlocked entrance.  However they gain entry, spyware programs cost consumers billions of dollars each year and erode confidence in new marketing media.  Why should this concern honest businesses?  Because once burned by the latest scam, consumers are twice shy about shopping online or making a purchase from an unfamiliar seller.

Spyware − harmful software downloaded onto computers without consumers’ consent, including a clear explanation of what’s involved − gives fraudsters the “in” they need to serve up incessant pop-up ads, snoop around sensitive files, and capture personal information.  The Federal Trade Commission (FTC), the nation’s consumer protection agency, has taken a tough law enforcement line against spyware.  Of course, no reputable marketer would want its good name sullied by any association with spyware.  But savvy advertisers can glean helpful guidance from the key principles illustrated by the FTC’s anti-spyware cases.

• Consumers’ computers are their personal property, not an advertiser’s.  Internet businesses are not free to help themselves to the resources of a consumer’s computer.  Thus, it’s illegal to download spyware to users’ computers without their knowledge and consent.  Ignoring this commonsense proposition can be costly, as the multi-million dollar remedies in recent FTC cases make clear.
• Disclose the details.  Many companies offer their customers handy utility programs or other beneficial software.  But the onus is on the marketer to make sure material terms and conditions are explained up front.  If the disclosure of information is necessary to prevent a promotion from being deceptive, the disclosure must be clear and conspicuous.  In traditional media, it’s well established that fine-print footnotes, fleeting superscripts, and fast-paced radio disclaimers won’t do the trick.  Similarly, as recent FTC lawsuits demonstrate, burying material information in an End User Licensing Agreement or on an obscure hyperlink will not shield an online marketer from liability.  Therefore, companies interested in staying on the right side of the law – and out of the enforcement headlines – should take care to disclose the details up front.
• Undoing what’s done.  Once a program is installed, make it easy for consumers to disable it.  In two recent cases, the FTC alleged that companies provided advertising programs that monitored consumers’ Internet use and displayed frequent targeted pop-ups – over 6.9 billion by one defendant alone.  According to the FTC, the companies deliberately made these programs difficult for consumers to identify, locate, and remove from their computers, thus thwarting their efforts to end the intrusive pop-ups.  The result?  A total of $4.5 million in financial remedies, tough injunctive provisions, and specific requirements to ensure that consumers can undelete unwanted programs easily.

For more on educating consumers about the dangers of spyware, visit www.OnGuardOnline.gov.

Lesley Fair is an attorney in the FTC’s Bureau of Consumer Protection.