In the Senate, Conrad Burns's (R-Mont.) Spy Block Act also targets a class of computer programs that collect information without computer users' knowledge. It was this aspect of the bill that concerned Sen. George Allen (R-Va.) last year when it appeared that Burns's bill was headed for passage.
"If you define a specific illegal spyware activity it is very difficult to do so without causing legitimate software companies unintended consequences and unneeded burdens," Allen said.
Allen said he was also concerned that the law could inadvertently create a "safe harbor" for some malicious spyware distributors -- allowing them to hide behind consent language that users may agree to without fully reading.
Both Hughes and Cresanti said their organizations would prefer that an anti-spyware bill target the behavior of spyware distributors, rather than a whole class of technology that has legitimate uses.
Allen said he plans to introduce legislation as early as next week in the Senate that would stiffen existing anti-fraud penalties for anyone convicted of committing fraud via spyware. Allen's bill would also authorize about $10 million for law enforcers to go after spyware distributors. "Much, if not everything, they are trying to create a new definition of a crime for is already against the law," Allen said.
That's also been the primary argument of the Federal Trade Commission. "Most of the acts and practices and harm consumers that are covered under these bills are things that would be either unfair or deceptive under the FTC Act," said Tom Pahl, an assistant director in the FTC's Division of Advertising Practices. Under each of the congressional proposals, the commission would be saddled with coordinating federal enforcement efforts.
According to Bono, the regulators aren't doing enough. "I believe the FTC has been asleep at the wheel so far and hasn't enforced it and that's why it's grown so exponentially," she said, adding that her bill would give Congress the ability to "hold the enforcers' feet to the fire."
The FTC has brought a handful of spyware cases, Pahl said, but the agency has been hindered by the fact that many spyware distributors are located overseas. The commission has asked Congress to pass legislation that would make it easier for them to coordinate with foreign law enforcers.
Pahl added that Congress already pressures the commission to bolster its enforcement efforts. "Congress can and does hold our feet to the fire for how we enforce the FTC Act. Chairman Barton is very adept at holding our feet to the fire and he doesn't need a new law for that," he said.
Staff writer Emily Woodward contributed to this article.