By now we’re all aware of the dangers of being connected to the Internet through viruses, worms, and spyware. Fortunately, innovators have addressed this problem through a class of software designed to protect computers and servers against invasion. The use and maintenance of these programs has become a virtual necessity for computer users.
The development of these solutions is yet another example of the superiority of solving problems through innovation in the private sector rather than through government action. But Congress often cannot resist the urge to use their only tool and pass more laws, despite the fact that legislative efforts in the past designed to protect consumers have often proved to be useless, and often have unintended consequences.
Going down this familiar path, a new legislative effort is underway -- the “Spy Act,” to assist those who go on-line 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.
That sounds pretty good, but because of its reach, it represents the most sweeping regulation yet of the software industry. In particular, there’s a provision in the proposal that is rife with the potential for unintended consequences.
The so-called “Good Samaritan” provision would create special protections for a broadly-defined class of software that would be able to operate outside of the current legal structure which now holds “anti-spyware” companies responsible for removal of legitimate, intended software.
Moreover, this provision could give such software programs inappropriate influence in determining which software and business models are “legitimate” without any balancing responsibility.
The Digital Millennium Copyright Act provides a “safe harbor” for Internet service providers (ISPs) against accusations of copyright infringement, but only because ISPs do not make decisions about the content passing through their pipes. But the “Good Samaritan” provision would provide similar protections for individuals who are expressly making decisions about software content.
There’s probably no real need for the Spy Act, but at the very least, policy makers should make sure that such legislation does not contain provisions like the “Good Samaritan” that will likely have unintended consequences for an industry that almost all observers would say is working pretty well without government interference.