Background and Case Status

Computer users have recently come to face a growing array of software that gets installed on their computers (often without their knowledge, consent, and/or informed consent), and performs functions users dislike (often including tracking or transmitting personal information, or displaying targeted advertisements). These behaviors have been the subject of extensive litigation, and more recently of multiple pieces of proposed legislation. (See full legislation listing.)

In January 2004, the state of Utah proposed legislation to address the problem of spyware, namely the Spyware Control Act (H.B.323). As discussed in the Disclosures section, I had the opportunity to speak with Utah legislators on the subject of this legislation, including reviewing proposed wording and even making some suggestions. I concluded that the bill would make good law -- would address and begin to correct some serious problems facing consumers, and would do so without serious damage to other important interests. (Consistent with this conclusion, I drafted A Close Reading of Utah's Spyware Control Act, analyzing the bill's effects and evaluating critics' concerns.) I was therefore pleased to see the bill become law when signed by Utah Governor Olene Walker on March 3, 2004.

WhenU.com, a company whose activities are within the scope of the act, has filed suit seeking that the act be declared void and invalid. This site provides relevant case documents. Additional case documents will be posted as available. Sign up for notification of major updates.

Oral argument took place on June 10-11 as to WhenU's application for a temporary restraining order and preliminary injunction. See my personal notes from the hearing.

Closing arguments took place on June 22. Ruling from the bench, Judge Fratto subsequently granted WhenU's Motion for Preliminary Injunction. See transcript of ruling (also available as a PDF).

On July 14, the State of Utah filed a Motion for Reconsideration (PDF) and accompanying memo (PDF), asking the Court to reconsider its June 22 ruling. According to the memo, "if a portion of [a] statute might be saved by severing the part that is unconstitutional, such should be done" (quoting and citing Utah precedents). Noting the Court's June 22 ruling that WhenU had met its burden of proof as to "some provisions but not all provisions" of the statute, the memo argues that certain provisions of the statute should be allowed to take effect as specified by the legislature. On September 28, the Court denied the State of Utah's Motion for Reconsideration.

Case Documents      [ WhenU Filings - Utah Filings - PI Ruling - Utah Reconsideration ]

WhenU Filings (April 12, 2004)

WhenU Complaint (PDF, 768KB, 26 pages)

WhenU Application for Temporary Restraining Order and Preliminary Injunction (PDF, 62KB, 3 pages)

WhenU Memorandum in Support of Application for Temporary Restraining Order and Preliminary Injunction (PDF, 1,207KB, 41pages)

Affidavit of Avi Naider (PDF, 1,501KB, 62 pages)

Mr. Naider, CEO of WhenU, explains contextual advertising and WhenU's business, discusses the uninstallation of WhenU's software, presents WhenU's commitment to consumer privacy, and argues that WhenU software is not "spyware." Mr. Naider claims that the Spyware Control Act results from efforts to drive WhenU out of business, and he states that the Act presents WhenU with the "impossible choice" of foregoing certain kinds of advertising and complying with the Act, or inviting claims by private enforcers of the Act. Finally, Mr. Naider states that the act would harm consumers and would have terrible consequences for the Internet.

Affidavit of Marisa Megur (PDF, 137KB, 6 pages)

Ms. Megur, an attorney for WhenU, quotes at length from audiotape transcriptions of hearings on Utah's Spyware Control Act.

Affidavit of Arnold Reinhold (PDF, 709KB, 30 pages)

Mr. Reinhold, an expert for WhenU, explains how the Internet works, notes the interstate communications typical in Internet commerce, and claims that software distributors "cannot reliably determine" where users reside. Mr. Reinhold describes the act's spyware prohibition and lists programs that, in his view, violate the prohibition. Finally, Mr. Reinhold notes that websites collect users' usage information without users' consent.

Utah Filings (May 18, 2004)

Memorandum in Opposition to Motion for Preliminary Injunction (PDF, 2,940KB, 48pages)

Answer to WhenU's Complaint (PDF, 284KB, 12 pages)

Affidavit of Benjamin Edelman (PDF, 260KB, 33 pages)

As an expert for the State of Utah, I explain the methods of spyware generally and of WhenU software specifically, including WhenU's targeting methods. I describe the installation methods typically used by spyware, including by WhenU, and I explain why these methods are not properly considered consensual. I discuss the effects of spyware in Utah, and I show how WhenU could easily comply with the Act. In particular, I note that WhenU already collects and tracks information about users' location. Finally, I show how WhenU's content delivery partners (e.g. Akamai) already have the ability to change the WhenU targeting information sent to WhenU users in Utah, without altering WhenU's client-side software, allowing particularly straightforward compliance with the Act.

Affidavit of Joseph Lewin (PDF, 76KB, 4 pages)

Mr. Lewis, President of ArosNet (a Utah ISP), details the costs and harms of spyware to ArosNet and its customers.

Affidavit of Shawn Schwegman (PDF, 139KB, 6 pages)

Mr. Schwegman, Vice President of Technology for Overstock.com, explains how spyware has harmed Overstock and its affiliate business partners.

Affidavit of Rep. Stephen Urquhart (PDF, 184KB, 7 pages)

Rep. Urquhart (co-sponsor of the Act) presents his understanding of the legislature's intent in passing the Act, and of his personal intent. Rep. Urquhart explains the effects of spyware on Utahns, and he discusses the extent of his consultations with users, industry, and WhenU's CEO. Rep. Urquhart suggests analogies suitable for analyzing spyware, and he explains the rationale for the narrow enforcement provisions in the Act.

Preliminary Junction Order (June 2004)

On June 22, Judge Fratto orally granted WhenU's Motion for Preliminary Injunction. See transcript of ruling (also available as a PDF).

Utah Reconsideration Motion and Memo (July 14, 2004)

Motion for Reconsideration (PDF, 68KB, 4 pages)

Utah Memorandum in Support of Motion for Reconsideration (PDF, 354KB, 17 pages)

The State of Utah asks the Court to reconsider its June 22 ruling. According to the memo, "if a portion of [a] statute might be saved by severing the part that is unconstitutional, such should be done" (quoting and citing Utah precedents). Noting the Court's June 22 ruling that WhenU had met its burden of proof as to "some provisions but not all provisions" of the statute, the memo argues that certain provisions of the statute should be allowed to take effect as specified by the legislature.

WhenU Memorandum in Opposition to Motion for Reconsideration (PDF, 309KB, 12 pages)

Utah Reply Memorandum in Support of Motion for Reconsideration (PDF, 150KB, 6 pages)

On September 28, the State of Utah's Motion for Reconsideration was denied.

The summaries above are taken from affidavit headings and from key supporting sentences. Where possible, I have copied exact words from headings and supporting text. Nonetheless, the affidavit summaries are only my initial quick effort to summarize the major points of each affidavit. The summaries are no substitute for reading the full documents, available via the links above.

Disclosures

My interest in spyware originally arose in part from a prior consulting engagement in which I served as an expert to parties adverse to Gator in litigation. See Washingtonpost.Newsweek Interactive Company, LLC, et al. v. the Gator Corporation. More recently, I have served as an expert or consultant to other parties adverse to spyware companies in litigation or contemplated litigation.

Among my current clients is 1-800 Contacts, a company that was intensively targeted by WhenU pop-up ads. At 1-800 Contacts' suggestion, I previously made myself available to interested Utah legislators who sought more information about spyware.

This page is my own work - created on my own, without approval by any client, without payment from any client.

Last Updated: September 28, 2004 - Sign up for notification of major updates and related work.