Anti-Spyware Law Faces Challenge

A New York company that delivers Internet pop-up ads has asked a judge to block enforcement of Utah’s anti-spyware law pending resolution of a constitutional challenge.

WhenU.com Inc. claims that the law, which took effect last month, is “arbitrary and draconian” and violates its free-speech rights.

WhenU lawyers told 3rd District Judge Joseph Fratto Jr. on Thursday that regulation of advertising on the Internet was a matter of interstate commerce subject to federal, not state, jurisdiction.

But an attorney representing the state, Blake Miller, said the Utah Legislature had a role in trying to prohibit interruptions to online transactions.

WhenU provides users with free software like games and screen savers. The software comes with a separate program, SaveNow, that tracks Web traffic and matches a user’s surfing habits with particular advertisers.

Ads pop up when there’s a match. For example, a consumer browsing a travel site might be offered deals on hotels or rental cars, though the travel site might have nothing to do with the ads.

The Spyware Control Act, passed this year, makes it illegal to create or install computer software that monitors Internet activity and sends the information elsewhere, usually without the user being aware of it or consenting to it.

Miller said computer users often were tricked into accepting software, or were not fully informed of how it would affect their computer. The state contends that some spyware has malevolent intent and may be used to steal computer users’ identities.

WhenU maintains that its advertising software, which is used by 21 million people each month, is installed only on computers with users’ consent and does not gather private information.