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New York Attorney General Sues Spyware Company 122

Posted by samzenpus
from the sue-their-pants-off dept.
DevanJedi writes "Reuters is reporting that New York Attorney General Eliot Spitzer has sued alleged spyware company Direct Revenue, charging the Internet marketer with secretly installing millions of spyware programs that sent unsolicited advertisements to users' computers. Direct Revenue settled a class action law suit last month in Illinois."
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New York Attorney General Sues Spyware Company

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  • by voice_of_all_reason (926702) on Tuesday April 04, 2006 @08:30PM (#15062663)
    Spitzer also asked the court to compel the company to account for its revenue

    5th amendment surrenders?

    As much as they're probably guilty, the court should not be able to say "prove you didn't do X or we'll hold it against you"
    • Yes, this isn't a criminal case. I'll take a 5 yard penalty and sit out the remainder of this discussion.
      • Hmm, actually Wikipedia agrees with my original assessment:

        The U.S. Supreme Court has ruled that the privilege against self-incrimination applies whether the witness is in Federal or state court (see Malloy v. Hogan, 378 U.S. 1 (1964)), and whether the proceeding itself is criminal or civil (see McCarthy v. Arndstein, 266 U.S. 34 (1924)).
        • Isn't it already a crime to hide the source of your revenue though? Isn't this how they bring down the mob? Basically, in America, if you can't account for where your money came from, you're in pretty hot water. The IRS needs its money... neeeedddsssss.......
        • Two questions for the non-lawyers: 1) Does the fact that it's a company make a difference? Does a company have 5th ammendment rights? 2) You can be subpoena'd to produce documents. You can refuse to produce those documents based on your 5th ammendment rights, and that can't be held as evidence against you. But... since this is Civil, the burden of the State's proof is much lower. Can't they just assert that the illegal things you did made you some astronomical amount of money based on some theory, a
    • Wha? Isn't a company already compelled to account for its revenue?
    • I know some people in the Waste Management industry who agree with your legal perspective.
    • by kiddailey (165202) on Tuesday April 04, 2006 @09:07PM (#15062829) Homepage
      Since when do the amendments apply to corporations?
      "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
      IANAL, but as far as I knew, the privilege against self-incrimination does not apply to corporations or other collective entities. And, after some brief research, appears to have been upheld in Braswell v. United States [google.com].
      • the privilege against self-incrimination does not apply to corporations or other collective entities.

        Yes, corporations can't self-incriminate themselves and they can't even be incriminated at all. That is they can only be sued civily. There are obvious reasons for this. First and foremost, you cannot send a corporation to jail. You can however try the directors or officers of the corporations for criminal charges if they committed crimes in which the corporation is civily liable. But the only recourse a
      • From the breif, specifically:


        "representatives of a collective entity act as agents, and the official records of the organization that are held by them in a representative rather than a personal capacity cannot be the subject of their personal privilege against self-incrimination, even though production of the papers might tend to incriminate them personally."

    • Before flaming Spitzer with our vast knowledge of the Constitution, we should be sure that we understand the document. It's Amendment 4 that states

      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      Next: what about the rights of

      • Why is everyone quoting the constitution here, you've got the right article, but it's barely applicable, and doesn't prevent a search at all.

        Asking a judge to issue a Subphoena is the process of trying to establish "Probable cause" - if it's likely that an individual or corporation committed a crime, and a search of something they own (Residence, place of business, financial records, etc.) would likely prove that crime was committed, a judge can authorize a search.

      • Next: what about the rights of computer owners? Spyware is installed, without consent, on personal computers (mostly Windoze boxes), which are recognized spaces of personal property. In one sense, it is quite similar to breaking and entering

        I'm more inclined to think of it as rape, but maybe that's taking it too far. Maybe we should be thinking of cracking + rootkit installation as someone breaking into your home and crapping on your sofa.

        I will agree, people who don't/can't protect their computers are jus
        • Perhaps, but it was a fairly good rant. :)

          "If someone connects to your web server, who authorised the access? In this case it's reasonable to assume that a web server that's open to the public network provides implicitly authorised access... or is it?"

          Leaving a port open does not by itself constititute authorization.

          If you publish a www.example.com record in the DNS, it would be entirely reasonable to assume that you've authorized people to stop by your website, yes. There are other conventions which apply
          • If you publish a www.example.com record in the DNS, it would be entirely reasonable to assume that you've authorized people to stop by your website, yes.

            So does that mean I'm breaking the law if I visit http://example.com/ [example.com] rather than http://www.example.com/ [example.com] since it didn't explicitly tell me through a published DNS record that it was a public web server?

            or "Terms of use"

            How would I find out about the terms of using your web site without visiting the website in the first place?

            Note that this does not mean t
            • Absolutely - if you are obviously having to circumvent some security (nomatter how crap) then you probably shouldn't be doing it. But what I'm saying is that when people leave systems completely open why should the "client" be held responsible for this rather than the "server" - in many cases it's impossible to tell (at least before connecting to a service) whether it was intended to be a legitimately public service or not. Using 802.11 as an example - when I see an open 802.11 network broadcasting invitati

              • when I see an open 802.11 network broadcasting invitations for me to use it how would I be expected to know if it's accidentally open or intentionally open?

                the Same why you are have implicit invitation to enter a shop, but not to enter the unlock stock/back room.


                Sorry, that argument makes no sense - by your analogy an open 802.11 network _is_ an open shop - how is anyone supposed to know if it's actually open or if the owner accidentally left the "open" sign in the door and the door wide open?

                By your analog
    • by Apraxhren (964852) on Tuesday April 04, 2006 @10:00PM (#15063073) Homepage
      IANAL but the Required Records Doctrine of the 5th amendment states
      While the privilege is applicable to one's papers and effects,\226\ it does not extend to corporate persons, hence corporate records, as has been noted, are subject to compelled production.\227\
      See: http://www.law.cornell.edu/anncon/html/amdt5afrag7 _user.html#amdt5a_hd28 [cornell.edu]
    • You think that corporations are persons, and entitled to the same Constitutional protection as humans?
  • by Anonymous Coward

    the owners/companies who have had to spend billions on getting their PC's fixed/replaced ?
    can other countries join the suit ?

  • Spitzer eh? (Score:5, Interesting)

    by TubeSteak (669689) on Tuesday April 04, 2006 @08:31PM (#15062666) Journal
    From what I understand, his style is to pick a fight and make a lot of noise about it in the press.

    The defendants are usually judged guilty by the court of public opinion, long before an actualy jury gets near the case.

    I'm not saying his technique is good or bad, but it's worth noting that more often than not, he gets a settlement instead of a drawn out legal battle.
    • Yup. He went after a bunch of mutual fund companies a couple years ago http://en.wikipedia.org/wiki/Mutual_fund_scandal_( 2003) [wikipedia.org] that got big press. I was living overseas at the time and it was in the news. I think he went after H&R Block at one point as well, but I haven't looked that up.

      This guy is definitely the most high profile State Attorney General in the country, and he does have a pattern of making his targets look bad in the media.
    • Re:Spitzer eh? (Score:3, Insightful)

      by HiThere (15173) *
      At least he's been choosing people that deserve to be made to look bad. There have been much worse prosecutors.

      The only thing wrong with his approach is the culprits get off easier than they should. The positive side is that if he didn't attack them, they'd get off scot-free.
    • gee, why would a guy in his shoes want to make a lot of noise in the press? I'm sure it has nothing to do with his campaign. (for those outside of NY, he's running for Governor)
    • From what I understand, his style is to pick a fight and make a lot of noise about it in the press.

      I suspect the Press part is what's important here. I saw a 'Spitzer for Governor' ad on my NYC WNBC satellite feed this weekend on McLaughin Group.
    • Re:Spitzer eh? (Score:5, Insightful)

      by evilviper (135110) on Wednesday April 05, 2006 @06:53AM (#15064900) Journal
      From what I understand, his style is to pick a fight and make a lot of noise about it in the press.

      The defendants are usually judged guilty by the court of public opinion, long before an actualy jury gets near the case.

      This is disingenuous at least. These companies were convicted in the court of public opinion LONG before Spitzer got involved.

      The fact that the Attorney General is prosecuting the companies that 99% of the public-at-large believe NEED to be sued, seems just about EXACTLY what his position is supposed-to entail. We're just so used-to corporate/political bribery and favors that we're shocked when we see elected officials aggressively doing their job.
    • "he gets a settlement instead of a drawn out legal battle." That's supposed to be a good thing from the point of view of the legal system. It's considered a loss for both sides if you end up having to go to trial.

      Or anyway, that's what Vinnie Barbarino said in that movie "A Civil Action."

  • Ok... (Score:4, Interesting)

    by gcnaddict (841664) on Tuesday April 04, 2006 @08:31PM (#15062668)
    We see all of this, and yet no one has bothered to sue Claria yet... even AFTER they announced their restructuring plan.

    Please sue Claria!
    • Yes, on one hand it's good to see some action against companies that use spyware and adware in their business model, but on the other hand you're right: what about the BIG spyware/adware companies? I can think of one that I'd LOVE to see taken down: C2Media. C2Lop is a NASTY piece of spyware/adware for sure.
  • Spitzer really REALLY wants to run New York State, so he's been suing everyone the last few years. He's the one that nailed AOL for not letting customers cancel their accounts.
    Doesn't bother me much. All the suits he launches appear to come from complaints to his office, so he's "working for the people" as much as he's in business for himself. Plus, he's suing people that I have issues with myself: spyware companies, AOL, the RIAA.
    I just might be pushing the button under Mr. Spitzer's name when it comes election time. Hopefully all he's after isn't just the bigger office in Albany.
    • I don't think it's that AG Elliott Spitzer wants to run NY as much as he is filling a tremendous void left by the absymal, nonperforming and nonfunctioning F.B.I., who appears to be involved with far too many of their very own inhouse scandals and problems.

      The F.B.I. should really be doing everything the Mr. Spitzer is doing, but thank goodness at least he's doing it!!!!

      You know, if this country had an F.B.I. director like Mr. Spitzer, as opposed to that useless shyster, Mueller, or better yet, a real atto

    • If he fought against AOL for not allowing customers to cancel their accounts, Pray-tell why did I have them denie me that over and over, and when I finally did get them to agree guess what... I got billed after supposedly "canceling"
  • by mrheckman (939480) on Tuesday April 04, 2006 @08:35PM (#15062688)
    I had personal experience with Direct Revenue's adware that took many hours to remove. Imagine how many hours have been spent by people trying to clean up their computers from their adware. I think it is a shame that the developers were able to escape with just a fine from the Illinois lawsuit. They should have to do hard time -- at least one hour for every hour spent by people trying to remove their software. How many years do you think that would add up to?
    • Don't blame the developers. Blame the architects/management. 90% of the time, ideas this evil are because a pointy-haired has decided it's a Good Idea(tm) and has mandated that it must be a piece of the software. There are many times I have railed against a bad idea that has been poorly thought out by management/architects, some of them I've won against, some lost, some I've just walked away.
  • by Opportunist (166417) on Tuesday April 04, 2006 @08:38PM (#15062704)
    Can you already see the defense? "But it's in the EULA!" is what will be said. You agreed to about a billion pages of legalese, of course after reading it.

    As long as such EULAs can be used as an excuse to claim the user waived all rights and allowed the company to do whatever they please, hidden in a text nobody but a lawyer can decypher, we'll have buggy software, spyware and, as we've recently seen, even rootkits in our soft. Sure, EULAs don't hold a drop of water in most countries, but it already starts at the problem that most people don't even KNOW that the software they're about to install is going to cause a problem to them.

    And as long as such shady practices don't have to be told in simple terms that can be understood by normal people who didn't study CS or law, this practice will continue. Whether or not this suit actually gets through.

    He might be fined a few million bucks. Ok. Pocket change for the average spam king. As long as the revenue from illegal activities outmatch the possible damage charges (see also Sony's rootkit and the "settlement"), it won't stop them from bugging their users' computers.
    • Make 10 million dollars dealing drugs, spend 6 years in prison, retire. Most illegal professions could potentially end up worth a few years in prison. Its all a matter of being a.) willing and able to defend your precious virgin ass in prison and b.) just being a self centered p-o-s in general and not caring what effect your illegal actions could have on others, innocent or not.

      Cheers!
  • Not yours. [state.de.us]

    =)

    • When I saw "not yours", I thought of that image of a little girl crying with a small thumbnail pic of a pony. And of course, the caption on the picture says "Not Yours".

      Anyways, for everyone who didn't click the link, it's a picture of the U.S. Bill of Rights.
      • Yeah, that's what I had in mind. =) Some other fellow posted "No you can't have a constitution"...but like a dork I replied to the thread instead of him. Woulda made more sense. Ah well. Never post when sleep deprived.

    • What the hell is that brown stain at the bottom? Did James Madison spill coffee on the Bill of Rights? I can just see Ben Franklin tearing him a new one for that... (I have no idea who wrote the bill of rights, so I apologise if I got the characters wrong. Hey, can any of you name a founding father of sweden? Didn't think so....)
  • by Impy the Impiuos Imp (442658) on Tuesday April 04, 2006 @08:46PM (#15062744) Journal
    > Direct Revenue settled a class action law suit last month in Illinois

    Don't let them settle a lawsuit! Make the assholes release software to de-install itself, safely and completely.

    Son of a bitch, I had to re-stage my wife's laptop because of Winfixer.
  • I cannot make up my mind about this guy. I like this move, I hate his anti-online gambling [winneronline.com] moves. And then I saw him on CNBC's Mad Money with what's-his-name and he seemed like an aimeable dude.
    So,

    Eliot Spitzer: Is he cool, or is he whack?

    • by mhollis (727905) on Tuesday April 04, 2006 @09:46PM (#15062992) Journal

      Actually, niether. He's a politician.

      I generally like what he has been doing, which mostly amounts to leveling the playing field between big business and the people -- but one can easily see the opportunitism here of a very political animal in the cases he takes on and how his PR machine works it. He was elected by mostly Democrats to be the Attorney General under a Republican Governor with whom he has had a mostly uneven relationship. He did not challenge this Governor (Pataki) until the Governor announced that he is planning on leaving office, though he has gone after many of the Governor's financiers and political cronies.

      In not running against this particular governor, he has set his office up as a stepping-stone to the office of Governor for himself. A very shrewd move. Were he to have remained as a candidate for Attorney General (especially with the favorable press he has been receiving in the state of New York) I'd say he's close to 90% altruistic -- a very hard-working prosecutor with an eye for the kind of justice that sells newspapers. By virtue of his run for Governor and the timing of that run, I'd say he's about 50 to 55% altruistic and would probably make a pretty good, if not combative Governor.

      I recall another prosecutor who is rumored to have made a good executive: Giuliani. But Rudy Giuliani was best-suited to crisis management. He tended to get bored and pick fights (usually with the helpless) when things got quiet. Unfortunately I think Rudy has sold his soul to the Republican right (which is wrong).

      My overall favorable impression of Mr. Spitzer will, likewise, tumble should he sell his soul to a national political machine. These types are best when they're fighting the good fight with no hangers-on and no encumbrances.

  • Fix the law. (Score:5, Interesting)

    by headkase (533448) on Tuesday April 04, 2006 @09:28PM (#15062913)
    I'd like to see it made illegal for software to resist an uninstall (e.g. reinstalling itself on the next reboot). Seriously, if you want it gone and it's your machine who the hell do they think they are to stop you?
    • The spyware brats would just claim it is a "self repair" feature that repairs the app if it detects it's become "damaged". (ripped out by its roots by the user)

      If I were writing laws, I'd make auto repair on reboot by anything short of an OS unlawful unless the user was prompted clearly with a fixed text message asking if they wanted the app to be repaired/reinstalled.
    • There was a bill being passed around that would do that (http://www.pcworld.com/news/article/0,aid,114999, 00.asp [pcworld.com]), not sure what happened to it. /Offtopic - I want a T-shirt with your signature about rights management on it.
  • by wehup (567821) on Tuesday April 04, 2006 @09:32PM (#15062936)
    Here's the AG's site: http://www.oag.state.ny.us/press/2006/apr/apr04a_0 6.html [state.ny.us] But the real fun is in reading the actual complaint. It is clear the AG does not think highly of Direct Revenue. http://www.oag.state.ny.us/press/2006/apr/Direct%2 0Revenue%20Affirmation%20of%20Justin%20Brookman.pd f [state.ny.us] Caution... large PDF, but a fascinating read.
    • The Brookman Affirmation is definitely an fascinating read. They got hold of plenty of internal emails that totally nail these guys. From the account in that pdf it seems like their CTO Dan Doman was trying to warn these guys they had stepped over the line but the money was talking a lot louder. For example, when they put in an Add/Remove entry their revenue went down, so of course they took it back out. They had some distributors that requested Add/Remove entries so they would put them in and then stealth-
  • ...they probably saw it coming.
  • I hope they all go to Pound me in the ass prison but not before Jury find them guilty.
  • Rough Rider (Score:3, Interesting)

    by Doc Ruby (173196) on Wednesday April 05, 2006 @01:04AM (#15063915) Homepage Journal
    Spitzer is the frontrunner in the upcoming 2006 NY state governor election. His career is starting to remind me of Teddy Roosevelt's [wikipedia.org].
  • Hmmm.... interesting, but where is Sony's lawsuit for all the rootkits they installed?
    I won't hold my breath for that one.
  • What's the point of settling if (and for cowardly reasons, I'm not saying they are) you are already a company with a reputation for being a bunch of evil spyware spreading SOBs. I mean what the 'bad publicity' going to do other than drum up more customers?
  • Seeing spyware companies get away with all this made me wonder, "what if I tried this with a real store?" Basically, let's say I own a store. Do I have the right to plant a GPS tracking bug on your car, write down your license plate and VIN and do a search on them, copy down your driver's license (if presented to go along with a sale) and search it too, then monitor wherever you drive your car? I would then sell all the data to whoever wants it, and hire people to meet you at home and in the parking lots
  • The fact is that installing and then executing spyware no any computer should be illegal. I can almost guarantee that there is some "blanket law" out there that should be exhumed ;-), thereby allowing enforcement entities to pursue companies or individuals which practice this form of activity. We need more of these law suits, across the board, in an effort to make these types of enterprises think twice!

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