Academic journal article Rutgers Computer & Technology Law Journal

What Not to "Ware": As Congress Struggles against Spyware, the FBI Develops Its Own

Academic journal article Rutgers Computer & Technology Law Journal

What Not to "Ware": As Congress Struggles against Spyware, the FBI Develops Its Own

Article excerpt


Most computer users have heard the term "spyware," but few understand the scope of the threat it poses. (1) Spyware can end up on a user's computer with little warning, or sometimes with no warning at all. (2) Spyware can gather information on the user's web browsing habits, harvest credit card numbers, or simply slow the computer to a halt. (3) Thus, it is not surprising that Congress has taken up the cause of combating spyware, (4) although the issue has resulted in much legislative hand wringing. (5)

While the federal government has been trying to stop this kind of spyware in its tracks, however, it has also been developing some spyware of its own. (6) Imagine receiving the following warning from your computer's security software: (7) "Spyware detected! Source: US Government." Or, even more disconcertingly, imagine that your security software did not detect such a program, yet federal agents had installed one surreptitiously and were able to monitor your every digital move. (8)

Although this software can be highly useful for catching tech-savvy criminals, (9) such surveillance techniques pose many questions. Some have questioned the propriety of the government's involvement in the creation and use of spyware, especially the potential exploitation of computer security loopholes. (10) It is also possible that the government may try to convince Internet security companies to create back doors in their software for government spyware, or at least whitelist the software so that users will not find it. (11) Even the classification of various technologies as "spyware" or "fedware" is a contentious process, (12) as exemplified by the debate over pending federal legislation against spyware. (13)

This note will illustrate how the FBI has deftly turned spyware technology to its own advantage, while Congress has struggled to keep up with technological trends. It will also discuss the proliferation of "wares," provide examples of government spyware or "fedware" and their policy implications, and offer recommendations on the pending federal legislation that would regulate spyware.


The suffix "-ware" has proven popular in fashioning monikers for new breeds of questionable or malicious software and Internet technology. (14) Besides the term "spyware," other potentially less familiar terms include "adware," (15) "pestware," (16) "malware" (17) "fedware," (18) "policeware," (19) "greyware," (20) "stealware," (21) "scumware," (22) "snoopware," (23) and even "iMalware." (24) Many of these terms overlap as well. (25) Indeed, a large part of the problem in addressing Internet security threats like spyware stems from the difficulty of categorizing various technologies. (26) In addition, the name of a "ware" can refer to the purpose of the technology, the techniques it uses, or both. This proliferation of "wares" in computer and Internet jargon necessitates some elucidation in order to highlight the significance of government spyware.

A. Adware

The simplest definition of adware is software that delivers advertising. (27) Illustrating the lack of precision in "ware" definitions, however, some have defined adware as involving surveillance of an Internet user's browsing habits to facilitate the delivery of advertising content. (28) However, the Anti-Spyware Coalition (ASC) (29) indicates that not all adware necessarily includes surveillance: "[m]any [but not all] adware applications also perform tracking functions ..." (30) Depending on the method used to deliver advertising content, this kind of "ware" can be the least offensive. (31)

A common example of relatively innocuous adware is the link that appears in the upper-right corner of Adobe Reader 7.0.9. (32) It urges the user to "Download New Reader Now;" arguably this is merely an ad for a new version of the software that the user is already using, which is likely to enhance the user's experience at no extra charge. …

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