WASHINGTON -- Anti-spyware legislation in the U.S. House of Representatives inched closer to reality Wednesday as the Subcommittee on Commerce, Trade and Consumer Protection approved the bill, which now goes to the full Commerce Committee for a vote.
But in a significant development, subcommittee chairman Clifford Stearns (R-Florida) attached an amendment that would exempt software cookies, including third-party cookies, from the spyware definitions covered by the bill. It would also exempt embedded ads on web pages from the bill's requirements that online ads (often pop-ups that appear without a site's sanction) include identifying information so consumers can find and remove the software causing them. The idea is that a consumer would already know that an embedded ad came from the site in question.
Internet and software companies sought those changes out of worry that the original bill, sponsored by Rep. Mary Bono (R-California), potentially could have nabbed good actors as well as bad actors in its overall dragnet. Bono said the newly amended bill is now "sensitive to legitimate business models."
The bill, HR29 or the Spy Act, aims to prevent spyware purveyors from hijacking a homepage or tracking users' keystrokes. It also requires that spyware programs be easily identifiable and removable, and allows for the collection of personal information only after express consent from users. The bill exponentially increases fines against abusers as well, authorizing the Federal Trade Commission to fine violators up to $3 million per infraction.
The changes approved Wednesday should help the legislation's passage in the full committee, which is expected to mark up the bill in the next couple of weeks.
Commerce Committee chairman Joe Barton (R-Texas) has already hinted that he will seek even more changes, noting that Stearns' amendment fixes only "some" problems with the bill. He didn't specify what other issues need to be addressed but invited technology interests to voice any outstanding concerns before the markup.
"We will continue an open process and it will be mindful of legitimate business concerns as the bill moves to full committee markup and on to the House floor," Barton said.
In offering his amendment, Stearns said he was trying to strike a balance to root out malicious spyware "while providing some additional clarity for those engaged in legitimate businesses and commerce in the online marketplace."
Some technology interests had complained that the original bill might wrongly penalize software used for security or authentication purposes or for parental monitoring of children's internet activity, among other legitimate uses.
Stearns' amendment also strengthens anti-homepage-hijacking provisions, eliminates the need for the FTC to prove that charges for unauthorized access were passed on to the consumer and clarifies rules regarding how information can be collected from consumers.
Roughly identical anti-spyware legislation (HR 2929) passed the House last year by an overwhelming 399-1 vote but got snarled in the Senate, where members never got around to a vote. Conventional wisdom is that supporters introduced the bill too late in last year's session for it to gain traction.
This year, however, Bono and her supporters made sure the anti-spyware bill got an early start (it was the first bill to get a hearing of the full Commerce Committee this session).
At the markup, Barton made a point of announcing that he was working vigorously to get a companion bill introduced in the Senate, with the goal of going to conference sometime this spring.
"It is extremely important that the Senate take up this issue quickly, and that we get this bill to the president," he said. "This spying must stop, and we need to give the FTC a strong mandate to go after these bad actors and their deceptive and harmful behavior."
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