Online businesses (and these days, whose business isn’t online?) have to deal with a multitude of overlapping and competing e-marketing regulations, including CAN-SPAM, COPPA, the Lanham Act, state child e-mail privacy laws, adware regulations, FTC and FCC enforcements and advisories, and all of the relevant international laws. But for some this is not enough as across the country several jurisdictions are considering adding even more to the regulatory burden.
Last month Rhode Island held hearings asking whether the legislature should add a new law that makes it a felony to intentionally access a computer without authorization and for fraudulent or other illegal purposes. Although legislaotrs still cannot figure out how to avoid catching legitimate businesses in that dragnet.
In Maine, broad legislation seems to have lost steam that would have otherwise added new laws covering deceptive practices done electronically. For the most part those practices are already covered by fraud statutes.
Texas, New York, Rhode Island, Pennsylvania and North Dakota have also considered so called “spy ware” legislation this year.
This patchwork of overlapping and redundant laws spells compliance disaster for Internet operations, especially marketing and advertising. The alternative to this scattershot approach? One rule, at the federal level. Because all ecommerce should obviously be considered interstate commerce, its governance is rightly done at the federal level.
The U.S. House of Representatives has passed the “Spy Act” to assist those who go online by prohibiting anyone from deceptively installing programs on computers. The legislation requires notice and consent from the computer user before software is installed, and the software must be easily removable. While this legislation still needs some work, it does provide clear notice and consent standards for everyone to follow and a level playing field for all. Unfortunately, the legislation languishes in the Senate.
Its reach makes the Spy Act the most sweeping regulation yet of the software industry, but one set of regulations makes more sense than differing and conflicting state regulation of interstate commerce, which is the opposite of the Founders’ federalist intentions.