WhenU’s Popup Victory

WhenU, now known as Claria, has won what it calls an “important decision for the entire Internet industry” in its motion to enjoin the Utah Spyware Control Act, passed in March. WhenU had argued the Act “affects legitimate Internet advertising companies and therefore violates the First Amendment and dormant Commerce Clause of the United States Constitution, among other laws”. (Here’s a CNET story on the verdict.)

If I understand the ruling correctly (and this is based largely on Ben Edelman’s assistance), the judge has ruled that, in this particular law, Utah was unconstitutional in trying to limit popups, while it was within the constitution in trying to outlaw spyware — or more specifically, software that is installed without a licence and lack a proper uninstall procedure. As the judge did no want to break the act in half he ruled in favour of a preliminary injunction for WhenU. Ben, who works as a consultant for the Utah government, reckons WhenU could lose on appeal, since under Utah law, the judge “is obliged to regard the act as ‘severable'” — in other words, that he can keep parts and discard parts.

Avi Naider, WhenU’s Chief Executive Officer, meanwhile, is celebrating his victory. “Spyware is a problem and we want to put an end to it,” he says in a press release. “WhenU supports appropriate anti-spyware legislation at the federal level, but unfortunately Utah’s Act also impairs legitimate Internet advertising.”

23. June 2004 by jeremy
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