Spyware is the scourge of desktop computing. Yes, computer worms and viruses cause billions of dollars in damage every year. But spyware-programs that either record your actions for later retrieval or that automatically report on your actions over the Internet-combines commerce and deception in ways that most of us find morally repugnant.
Worms and viruses are obviously up to no good: these programs are written by miscreants and released into the wild for no purpose other than wreaking havoc. But most spyware is authored by law-abiding companies, which trick people into installing the programs onto their own computers. Some spyware is also sold for the explicit purpose of helping spouses to spy on their partners, parents to spy on their children, and employers to spy on their workers. Such programs cause computers to betray the trust of their users.
Until now, the computer industry has focused on technical means to control the plague of spyware. Search-and-destroy programs such as Ad-Aware will scan your computer for known spyware, tracking cookies, and other items that might compromise your privacy. Once identified, the offending items can be quarantined or destroyed. Firewall programs like ZoneAlarm takes a different approach: they don’t stop the spyware from collecting data, but they prevent the programs from transmitting your personal information out over the Internet.
But there is another way to fight spyware-an approach that would work because the authors are legitimate organizations. Congress could pass legislation requiring that software distributed in the United States come with product labels that would reveal to consumers specific functions built into the programs. Such legislation would likely have the same kind of pro-consumer results as the Pure Food and Drug Act of 1906-the legislation that is responsible for today’s labels on food and drugs.
The Art of Deception
Mandatory software labeling is a good idea because the fundamental problem with spyware is not the data collection itself, but the act of deception. Indeed, many of the things that spyware does are done also by non-spyware programs. Google’s Toolbar for Internet Explorer, for example, reports back to Google which website you are looking at so that the toolbar can display the site’s “page rank.” But Google goes out of its way to disclose this feature-when you install the program, Google makes you decide whether you want to have your data sent back or not. “Please read this carefully,” says the Toolbar’s license agreement, “it’s not the usual yada yada.”
Spyware, on the other hand, goes out of its way to hide its true purpose. One spyware program claims to automatically set your computer’s clock from the atomic clock operated by the U.S. Naval Observatory. Another program displays weather reports customized for your area. Alas, both of these programs also display pop-up advertisements when you go to particular websites. (Some software vendors insist that programs that only display advertisements are not spyware, per se, but rather something called adware, because they display advertisements. Most users don’t care about this distinction.)
Some of these programs hide themselves by not displaying icons when they run and even removing themselves from the list of programs that are running on your computer. I’ve heard of programs that list themselves in the Microsoft Windows Add/Remove control panel-but when you go to remove them, they don’t actually remove themselves, they just make themselves invisible. Sneaky.
Yet despite this duplicity, most spyware and adware programs aren’t breaking any U.S. law. That’s because many of these programs disclose what they do and then get the user’s explicit consent. They do this with something that’s called a click-wrap license agreement-one of those boxes full of legal mumbo-jumbo that appears when you install a program or run it for the first time. The text more-or-less spells out all of the covert tricks that these hostile programs might play on your system. Of course, hardly anybody reads these agreements. Nevertheless, the agreements effectively shield purveyors of spyware and adware from liability. After all, you can’t claim that the spyware was monitoring your actions without your permission if you gave the program permission by clicking on that “I agree” button.
Uniform standards for labeling software wouldn’t replace the need for license agreements, but they would make it harder for companies to bury a program’s functions. Such legislation-call it the Pure Software Act of 2006-would call for the Federal Trade Commission to establish standards for the mandatory labeling of all computer programs that are distributed within the United States. A labeling requirement would force makers of spyware to reveal their program’s hidden features.
The Historical Precedent
As I hinted above, we’ve been down this road before. The Pure Food and Drug Act of 1906 was passed by Congress to deal with a remarkably similar set of deceptive business practices. The problem back in 1906 was foods and drugs that were sold with misleading labels, or without labels at all.
The 1906 Act required that every drug sold in the United States be delivered to the consumer in a package that states the strength, quality, and purity of the drug if they differed from accepted standards. The dose of the drug had to be clearly printed on the outside of the package. A number of ingredients that tended to accompany nineteenth century patent medicines-substances like alcohol, codeine, and cannabis-had to be clearly disclosed as well.
In the case of food, the Act required that labels explicitly mention any artificial colors and flavors-after 1906, you couldn’t sell something called “orange soda” unless it had flavoring that came from genuine oranges. Otherwise you were selling “imitation” or “artificial” orange soda. And every bottle, box, and bag of food needed to clearly indicate the precise weight of the food that was inside the container.
The Pure Food and Drug Act was successful for many reasons. Forcing manufacturers to disclose what was in their products allowed consumers to avoid products that contained things they didn’t want to ingest. For example, many of the snake-oil tonics distributed at the end of the nineteenth century contained significant doses of addictive drugs like codeine or cocaine. Forcing to disclose these drugs on the product’s label, along with a warning that said “may be habit forming,” made it possible for consumers to make informed decisions. Labeling also empowered scientists and eventually consumer groups to check the product makers’ claims. Mandatory labeling put pressure on manufacturers to remove the most objectionable ingredients-a process that continues to this day. Finally, the labels provided additional evidence to lawmakers that was used to justify the crafting of additional legislation.
The parallels between nineteenth century adulterated food products and twenty-first century adulterated software is uncanny. Just as some tonics claimed to do one thing (like grow hair) when they actually did another (made the user intoxicated and chemically dependent on codeine), today we have software that claims to do one thing (set the time of your PC) and actually does another thing (displays ads when you visit particular websites).
So what would a Pure Software Act look like? Judging from 1906 legislation, the best results are likely to come from requiring labels that would directly address the issue of deception. The new law would therefore require that software identify itself as such: no more hidden programs that silently install themselves and then run without any visible evidence. The Pure Software Act would make it illegal for programs to run without revealing themselves though the standard means used by the host operating system. And the Act would require that programs have an “uninstall” feature-or else make it very plain that they do not.
Documenting a program’s installation and providing for its removal is just the start. The Pure Software Act would require that the Federal Trade Commission identify specific practices of software that would have to be explicitly revealed when the programs are distributed and run. Instead of letting companies hide the features of their software with obscurely written legalese buried in click-through license agreements, the legislation would require that the disclosure be made in the form of easy-to-understand icons that could be clicked on for additional information. Clicking on the icon would bring up further explanatory text-perhaps from a website maintained by the Federal Trade Commission. The icons could also be displayed in other places. Under Windows, for example, the Task Manager and the Add/Remove control panel could both display the mandated behavior icons alongside the program’s application icon.
A Modest Proposal
To make my proposal more concrete, I’ve come up with a list of program behaviors that would have to be disclosed, and some representative icons. These icons (created by TechnologyReview.com senior graphic designer Matthew Bouchard) are just samples to illustrate the concept. Actual government-mandated icons would be developed by a team of professionals with expertise in human computer interface, tested on focus groups, and put up for public comment. But these icons are useful to convey the general idea and to start discussion.
Rules of Engagement
With the icons would come rules for their use. For instance, many of today’s click-through license agreements say that the user implicitly agrees to any changes in the license agreement unless those changes are “substantive.” But what is substantive? Once a label regime was in place, a substantive change could be legally defined as a change that results in a change of icons-for example, if a self-updating program downloaded a remote-control feature. The law could then require that this sort of change would require new consent on the part of the user.
One tension inherent with any labeling regime is in deciding what gets put on the label and what gets left out. The more information required on the label, the more expensive it will be to produce, and the less likely that consumers would be to actually pay attention to the information. Any regulatory body implementing this policy will need to avoid icon creep-having 23 different icons on each piece of software won’t serve the needs of consumers, it will just cause confusion.
Another tension is between voluntary and mandatory labeling. I think that mandatory is the way to go. We’re living in a voluntary regime today: Google has done a great job explaining what the Google Toolbar does, but other companies are not so forthcoming. Nearly 100 years’ experience with The Pure Food and Drug Act of 1906 shows that labeling requirements need not be onerous, but they do need to be mandatory-otherwise the good companies label and the bad companies don’t. What’s needed now is to extend this principle to the world of software.
I’ve been discussing this proposal for software labeling for several months with associates in Cambridge. At Harvard Law School, Jonathan Zittrain offered very helpful comments; at MIT’s Computer Science and Artificial Intelligence Laboratory, I had useful discussions and comments with my thesis advisors, Rob Miller and David Clark, and with my fellow student, Steven Bauer.
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