Rethinking Spyware: Questioning the Propriety of Contractual Consent to Online Surveillance
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The spyware epidemic has reached new heights on the Internet. Computer users are increasingly burdened with programs they did not knowingly or consciously install, which place strains on their computers' performance, and which also trigger annoying "pop-up" advertisements of products or services which have been determined to match the users' preferences. The users' purported preferences are determined, in turn, by the software continuously monitoring every move the consumer makes as she "surfs the Internet." The public overwhelmingly disapproves of spyware which is surreptitiously placed on computers in this manner, and also largely disapproves of the pop-up advertising paradigm. As a result, there have been many legislative proposals, on a state and federal level, to address the spyware problem. All of the proposals assume that, if knowing and effective consent to spyware installation is granted by the consumer, then the software is lawful. Existing case law would seem to provide a means for corroboration of this conclusion. However, the implications of allowing such profound and invasive surveillance appear to be largely ignored in all of the proposals and discussion concerning spyware. This may be because of the "problem of perspective" concerning online activities, as first highlighted by Professor Orin Kerr. This article seeks to illuminate the true nature of the spyware bargain, and questions the propriety of sanctioning such "surveillance bargains" under principles of contract law. Such bargains may often be unenforceable because a term allowing continual surveillance may be beyond the range of reasonable expectations of most consumers. Even if not, however, the privacy implications are such that we as a society may wish to condemn such "bargains to be spied upon," and conclude that such contracts should simply be unenforceable as a matter of public policy, and therefore banned.
