Two bills designed to curb the proliferation of Internet "spyware" took another step toward law this week with overwhelming approval from the House of Representatives, but supporters said they face a tough race against the clock to get Senate approval before Congress disperses for the November elections.
The House on Thursday voted 415-0 on a bill that would send some spyware users to jail for up to five years. On Tuesday, the House approved a second bill in a 399-1 vote that would fine individuals and companies every time they install spyware on people's computers without permission.
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Rep. Joe Barton (R-Texas), who sponsored the latter bill, said that he will call on senators for their support, and that Congress could send it to President Bush before the end of the week.
"I'm personally committed to trying to put a bill on the President's desk this year," said Barton, chairman of the powerful House Energy and Commerce Committee.
Rep. John Dingell (Mich.), the senior Democrat on the Energy and Commerce Committee, said Democratic and Republican lawmakers are eager to get a bill to the White House. "Spyware is a growing problem and has become more than just a nuisance," Dingell said. "This type of activity threatens not only consumer privacy but it threatens legitimate electronic commerce as well."
Spyware describes hundreds of computer programs designed to surreptitiously install themselves on peoples' computers. Some of the more benign types, often called "adware," serve up a flurry of pop-up messages on their monitors while others secretly record every letter and number a user types. Online criminals use spyware to obtain people's credit card numbers, usernames and passwords and other private information.
Some spyware programs already violate existing laws, like those against identity theft and fraud, but Barton said that many practices covered in the House bills will remain legal until Congress passes them and Bush signs them into law.
One obstacle facing the House bills is competing legislation sponsored by Sen. Conrad Burns (R-Mont.), chairman of the Senate Commerce Committee's Communications subcommittee. Burns's bill also would forbid people from installing programs on someone else's computer without knowledge and consent.
The Senate bill includes civil and criminal penalties, whereas the House bills deal with them separately. The Senate bill is also less specific than the civil bill passed in the House, which lays out in considerable detail the way in which companies must inform consumers about what's being placed on their computers. Both would rely on the Federal Trade Commission to enforce anti-spyware rules.
Barton said lawmakers should be able to draw on the language from the House bills to draft a measure that the Senate and House can pass. He added that he would be willing to work with Burns to resolve the differences between the House and Senate bills.
Still, the main obstacle is time. Lawmakers will go home on Friday to work on their own campaigns as well as the presidential race. They are expected to come back for a brief session after Election Day.
Ari Schwartz, an associate director at the Center of Democracy and Technology, said he doubts that the Senate will rush to move spyware legislation before the recess. Schwartz said that Burns, along with Senate Commerce Committee Chairman John McCain (R-Ariz.) have said publicly that they want to hammer out remaining concerns with Burns's bill, and have shown no interest in taking up a House measure.
Burns staffer Jennifer O'Shea said Burns has no plans to work with the House at this point, and instead plans to press forward with his own bill.
Information Technology Association of America (ITAA) President Harris Miller said it is difficult to handicap the spyware measure's chance of passage this year. Miller supports the idea of an anti-spyware law, but opposes the bills in Congress. He said that he is concerned that a poorly written bill could inadvertently target legitimate technology used to remotely update common software like Windows XP and many security programs.
Miller added that he is worried that bill backers will attach the measure to larger bills, such as appropriations measures, that might be voted on after Election Day.
"This still isn't ready for prime time yet and I think that the fact that they've put out two separate bills shows that the broad-based consensus that you need to have effective anti-spyware legislation isn't there yet," he said. "You don't just pass something because Congress has an artificial deadline of going home this Friday or Saturday."
The Business Software Alliance, which represents Microsoft and many other large software makers, had raised similar concerns about the legislation, but dropped its opposition after House supporters added language designed to protect legitimate software makers.