scum update – hijacking aff comissions will be in next update

Another update from the lawyer Ben Edelman:

Greetings, and thanks for asking for updates on my research. Some new research to share —

1) As the spyware controversy heats up, numerous reporters, policy-makers, and concerned users want to know which advertisers are supporting unwanted software by paying Claria, WhenU, and others for advertising placements.

I’ve taken a look at WhenU’s advertisement “directory,” and I’ve prepared screenshots of all of WhenU’s current advertisers. I’ve found some well-known firms using WhenU — Priceline, J.P. Morgan Chase, Verizon, T-Mobile. But not many of WhenU’s advertisers are so well-known: 48 WhenU advertisers (20%+) offer online gambling, and 35 more offer loans (“payday
loans” and cash advances as well as mortgages). Other surprisingly common WhenU categories are sexual health (viagra, etc.) with 99 ads from 9 advertisers, and online credit cards and credit reports (122 ads from 10 advertisers). See all the ads in convenient thumbnails in my new article:

Advertisers Using WhenU
<http://www.benedelman.org/spyware/whenu-advertisers>

The question of who advertises on WhenU is of immediate practical importance. See yesterday’s release from Major League Baseball that they won’t do business with those who advertise using spyware or adware:

MLB Says It Won’t Work With Online Firms Who Use ‘Spyware’
<http://online.wsj.com/article/0,,SB108854419424950749-search,00.html>
(paid registration required)

2) Last week brought closing arguments in WhenU v Utah. After closing arguments, Judge Fratto granted WhenU’s Motion for Preliminary Injunction, enjoining current enforcement of the Spyware Control Act. Ruling from the bench, Fratto stated that he was not persuaded that WhenU had satisfied the requirements of showing a substantial likelihood of prevailing on the merits of its constitutional challenge as to the spyware provisions of the Act, but that WhenU had satisfied such showing regarding the context-triggered pop-up ads provision.

Nonetheless, Judge Fratto enjoined enforcement of the act in
its entirety. See also my report from the two days of fact and expert witnesses:

Report from WhenU v Utah
<http://www.benedelman.org/news/061104-1.html>

3) A variety of free and commercial tools can remove spyware and other unwanted software from users’ PCs. But not all “spyware removers” are legit: Some actually add more spyware; others are out-of-date rip-offs of real spyware removers. Eric Howes has tracked the details, with screen shots and log file analysis to demonstrate the problems.

Rogue/Suspect Anti-Spyware Products & Web Sites
<http://www.spywarewarrior.com/rogue_anti-spyware.htm>

Meanwhile, users can’t even trust Google searches for “spyware removal” (and similar): Some rogue anti-spyware apps have been buying advertising through Google’s AdWords. At least so far, Google seems content to accept their money and run their ads — even if their programs don’t work as advertised, and even if they infringe on the rights of others.

Google & Anti-Spyware Products: Be Wary of Paid Search Results
<http://www.spywarewarrior.com/rogue_anti-spyware.htm#google>

4) As federal anti-spyware legislation moves through committee, I’ve taken a look at the merits of the bills at issue. H.R. 2929 is moving fastest, and it presents some obvious concerns. For one, enforcement is limited to the FTC. But FTC staff have so far shown little interest in bringing enforcement actions against spyware makers. Why not grant a private right of action to users and companies who are harmed by spyware? Ed Foster makes
a hard-hitting comparison of 2929’s approach with the ineffective measures in CAN-SPAM:

The Can-Spy Act?
<http://weblog.infoworld.com/foster/2004/06/29.html>

More in the coming weeks. Expect research on affiliate commissions and the way certain spyware programs “hijack” commissions for their own benefit.

Ben Edelman
http://www.benedelman.org