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Spyware law may see some changes

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The state's new spyware control law, the subject of a constitutionality lawsuit and criticism from some in industry, may undergo some fine-tuning.

The Legislature's Public Utilities and Technology Interim Committee will consider changes this summer to HB323, the Spyware Control Act, the committee's House chairman and the bill's sponsor, Rep. Stephen Urquhart, R-St. George, said Wednesday.

The act, passed by the Legislature during the 2004 general session, is designed to cut down on spyware by making it illegal to create or install the software, which monitors Internet activity and sends that information elsewhere, usually without the user being aware of it or consenting to it. The law also seeks to curb deceptive look-alike pop-up advertising on the Internet and calls for penalties of $10,000 per violation.

Urquhart told the interim committee Wednesday that several companies have suggested small changes to the act, and the lawsuit "may necessitate wholesale changes to it."

The suit was filed in 3rd District Court by New York-based WhenU.com, which contends the act violates parts of the U.S. and state constitutions.

"Public awareness is just starting to ramp up," Urquhart said about spyware. "I would bet by the end of summer it will be greater than it is right now. . . . This dialogue is a subset of overall Internet privacy."

He also called spyware "really an insidious problem. It's just being downloaded at an incredible rate, and consumers don't know that."

Much of the act deals with disclosure, and Urquhart demonstrated Wednesday what he considers reasonable and unreasonable disclosure. The WhenU disclosure is displayed in a small window and requires a person to "page down" 44 times, he said. "It's like asking someone to read legalese through a straw," he said.

But the Google toolbar disclosure is much better, he said, noting that at the top of one page it states, "Please read this carefully. It's not the usual yada yada."

"We're locked in an arms race here," Urquhart said. "Companies are dumping this onto people's computers faster than they're being educated to drop it off."

Pete Ashdown, founder of Salt Lake-based Internet service provider XMission, said customers' computers often are overloaded with spyware, slowing down normal computer activities.

"Spyware is a nuisance to us," said Ashdown, whose company has 20,000 accounts in Utah. "It does not rank as high as a nuisance as spam does, but certainly it is present, and I would classify it as somewhere around the virus and worms category."

Many times, the spyware has piggybacked onto downloaded software to change the look of a cursor, add games or add elements to a search bar, he said. Some of the software is useful, he said, "but also tracks what you're doing . . . gathering research in order to sell that demographic."

Internet auction site company eBay is concerned that the act's requirement that data-mining activities be easily removable may affect the company's fraud-detection software. Urquhart said he agrees that the fraud-detection software is a benefit to users and said he would work on resolving that issue.

While Urquhart noted that several computing companies opposed to the act were invited to Wednesday's meeting but did not attend, Jay Magure, director of legislative affairs for 1-800 Contacts Inc., said many major companies are discussing the issues and will speak to the committee later.

Draper-based 1-800 Contacts has been involved in lawsuits with WhenU and at least two other companies that have placed pop-up ads from 1-800 Contacts' competitors over the company's Web site, making them appear as if the offers came from 1-800 Contacts.

E-mail: bwallace@desnews.com