The testimony notes that while it is often challenging to locate and apprehend perpetrators who plant spyware on consumers' computers, the FTC has "successfully challenged the distribution of spyware that causes injury to consumers online," initiating 11 spyware-related law enforcement actions since 2004.
The testimony states that the Commission's law enforcement cases targeting spyware reaffirm three key principles.
"The first is that a consumer's computer belongs to him or her, not to the software distributor, and it must be the consumer's choice whether or not to install software. This principle reflects the basic common-sense notion that Internet businesses are not free to help themselves to the resources of a consumer's computer," the testimony says. Several FTC cases alleged that the defendants downloaded spyware onto computers without consumers' knowledge or consent.
The second principle holds that individuals who download spyware cannot bury disclosures of material information needed to correct otherwise misleading impressions. "Specifically, burying material information in an End User license Agreement will not shield a spyware purveyor ... "the testimony states. It notes that in two FTC cases, "the defendants failed to disclose adequately that the free software they were offering was bundled with harmful software programs."
The third principle is that if a distributor puts a program on a computer, a consumer should be able to uninstall or disable it. The testimony notes that in two FTC cases, the companies downloaded adware that displayed frequent pop-up ads. The agency alleged that "the companies deliberately made these adware programs difficult for consumers to identify, locate, and remove from their computers, thus thwarting consumer efforts to end the intrusive pop-ups." Settlements required the companies to provide a readily identifiable means to uninstall the adware.
The testimony notes that the agency has coordinated some law enforcement initiatives targeting spyware with criminal enforcers. "Many of the worst abuses connected with spyware are criminal, and, in appropriate cases, the Commission coordinates closely with the Department of Justice."