Canada may eventually take such action too.
The United States Congress is in the process of passing a law, the Spy Act, that would make cyber-trespass a federal offence. The bill cleared the House of Representatives in 2005 and now awaits a Senate vote.
Meanwhile, the Canadian government has taken a serious look at introducing such legislation to control spyware - a term for tracking software that is planted in someone else's computer without the owner's knowledge, consent or control.
This software monitors user activity or absconds with data that can include sensitive personal information.
The government noted in its 2005 budget plan that it was asking Industry Canada's task force on spam to report quickly so Canada could adopt measures "to control the spread of spam and spyware to reduce their damage to the future of the Canadian economy."
However, federal legislative plans are now in limbo as the minority Conservative government takes over the reins of power from the Liberal Party following the Jan. 23 election.
"At this point it would be premature to speculate on the future direction that the new government will take on any initiatives," Industry Canada spokeswoman Annie Cuerrier of Ottawa tells Business Edge.
Spyware developers often use sophisticated ploys to spread their unwanted payload, such as tricking Internet users into downloading software they did not ask for. One way is to bundle the software with a package of other functions.
In October 2004, an AOL-National Cyber Security Alliance online safety study reported that 80 per cent of Internet users in the U.S. had spyware or adware (advertising display software that bombards the computer with ads) on their computers, and that 89 per cent of those users did not know these programs were there.
Some spyware is intentionally designed to be difficult to remove, and can cause the hapless recipient's computer equipment to operate slowly.
"Spyware threatens to erode consumer trust and confidence in the Internet as a medium for social and democratic participation and for the conduct of commerce," says the University of Ottawa-based Canadian Internet Policy and Public Interest Clinic (CIPPIC), Canada's only technology law clinic.
In May 2005, the task force on spam submitted its eagerly awaited final report to then-Industry Minister David Emerson.
The report recommended a stand-alone, technology-neutral law that specifically addresses spam and emerging technological "threats" such as spyware. "Amendments to existing laws may be required," it said.
"The new offences created should be civil- and strict-liability offences, with criminal liability open for more egregious or repeated offences," the report continued. "There should be meaningful statutory penalties for all (such) offences."
CIPPIC staff counsel David Fewer of Ottawa says Canada already has some laws that govern the use of spyware technology. These include federal and provincial personal information law, consumer protection law (misrepresentations, unconscionable transactions) and federal competition law (misleading advertising).
However, these laws do not address such behaviours as creating software that does not permit the computer user to uninstall it, and the bundling of software packages so that the recipient is aware of only a part of what he or she is getting.
At present, American laws that can be used to prosecute distributors include the electronic communications privacy act, the computer fraud and abuse act and a U.S. Federal Trade Commission (FTC) statute that empowers the agency to prosecute unfair or deceptive trade practices.
"These laws are inadequate in that they fail to cover some of the most common abuses and do not respond to the unique features of the technology," Toronto lawyer Javad Heydary of Heydary Garfin Hamilton LLP says in a law firm newsletter.
"Many legislators are rushing to introduce new laws to deal with this problem."
CIPPIC's Fewer says big businesses face as big a threat as small private or commercial users. "You should have control over your computer," he says. "What's wrong with companies being required to tell consumers what they're up to?
"There are no current laws to address this."
Adds Fewer: "Canada is a world leader in e-commerce. This is an issue that Canada should be very concerned about. Spyware pushes people offline. This is a bad thing."
CIPPIC is a founding member of the Washington, D.C.-based Anti-Spyware Coalition, a group of Canadian and American companies and public interest groups that seek to control spyware and other such technologies.
The coalition held its first a public conference on Feb. 9 in Washington, where spyware's impact on businesses and individuals was discussed and remedies explored. A similar conference is being planned for May 16 in Ottawa.
Meanwhile, agencies in Canada and the U.S. are using whatever existing law they can find to put the heat on spyware businesses.
CIPPIC and the Washington-based Center for Democracy & Technology, for example, have relied on Canada's competition act and the United States' FTC act in a joint complaint about Montreal-based Integrated Search Technologies, Inc. (IST) and its directors, officers and affiliates.
"IST's 'products' consistently rank among the top 10 spyware threats identified by anti-spyware tool vendors ... " the two organizations wrote in their 2005 complaint to the federal Competition Bureau and the FTC. "In addition to its own offerings, IST distributes spyware developed by third parties, which are also often among the net's most prevalent spyware threats."
None of the allegations have been proven in court.
The FTC has given high priority to the spyware threat, publishing statements, public alerts and other educational materials.
The federal agency has also taken legal action against several offenders.
Two years ago, the FTC testified at the subcommittee on commerce, trade and consumer protection of the House committee on energy and commerce that companies may incur costs as they seek to block and remove spyware from their employees' computers, productivity may be affected by pop-up ads, and keystroke monitoring could put proprietary secrets at risk.
(Brock Ketcham is an Edmonton-based writer who specializes in consumer and public policy issues. He can be reached at brock@businessedge.ca)
