This may be the best response to one of my posts. The following was a response to my Spitzer Spyware Suit I am not a lawyer but these ideas to eliminate spyware seem like they have merit and if there are any lawyers out there in cyberspace reading this blog, please opine on if these ideas make sense. Until then, I hope this excellent response helps stamp out spyware forever.
I don't understand why everyone does not take advantage of their local small claims court to sue spyware companies. The process is pretty simple.
All states have some law that prohibits what is known among lawyers as "trespass to chattels". This merely means someone without your permission uses any of you personal property for their own purposes thereby damaging it or depriving you of its use. Any spyware company writing spyware to your computer, even relatively innocuous companies like FastClick, deprive you of the use of that portion of your hard drive that they write on. The deprivation is permanent in that unless you make the effort to find and delete the spyware, it stays on you disk forever. This persistence is deliberate on the part of the spyware vendor since it wants the spyware to stay forever, update itself, and be as hidden as possible so you don't find and delete it.
This is trespass to chattels. At minimum you can recover the cost of cleaning your hard drive -- that is your time and the cost of anti-spyware/adware programs.
Further, every jurisdiction prohibits graffiti. It usually falls under a criminal statute against vandalism or criminal mischief. If a company writes its advertisement on your garden wall, the graffiti is prosecutable as a crime. If he writes it on your hard drive, then it is at least actionable as a tort.
Sue. It costs only a few dollars for you to bring a suit in small claims court. Ask for the maximum damage you can get (usually around $2000). Most of the time the company will not even show up to defend itself against you suit.
Once you get the judgment, turn it over to a multi-state collection agency to collect. They will charge you 50% or so, but you still net $1,000. And they will collect, believe it.
If everyone did this, say 100,000 people per month, the spyware companies would be out of business in a few months.
Or, get nasty. Any company doing business in your state needs to be certified by the Secretary of State to do so. There is an exception for some broadcast media corporations (radio and TV), and some national corporations such as national banks and federally chartered corporations (Fannie Mae, Freddie Mac, AMTRAC). But as a rule, a company cannot write its advertising messages on property located in your state unless it is registered as a corporation empowered to do business in your state. Is the spyware company registered? If not, complain to you Secretary of State in writing. The fine for not registering are pretty stiff.
Want to get really piggy? Write the spyware company a certified letter, return receipt requested, offering to rent space on your hard drive for some reasonable amount -- say $1000.00 per day. Make it clear that if the company write on you hard drive again in the future, the rental goes into effect. Then wait a few months and sue for back rent in small claims. You can get about two days worth of rent for every suit, so file a lot of them. And, no, you are under no obligation to erase the spyware so as to reduce the rent due. The spyware company must do that. You may, of course, offer you services to erase the spyware for some reasonable fee -- about $5,000 ought to be reasonable.
Folks, the courts are there for a reason. One of them is to prevent and punish annoyances. If you are annoyed, as I am, find the courthouse. It pays in satisfaction and money.
When I get around to it, I will post a sample complaint that you can probably use in your state to sue the bastards.
Posted by: Jim at May 7, 2005 11:59 PM