Spyware is a type of software that secretly forwards information about a computer user's on-line activities to another individual or company without the user's knowledge or permission. And it is proliferating on the internet in many guises – but particularly in the form of pop-up adverts.
One company that is notorious for using pop-up ads is the behavioural marketing firm WhenU. The New York-based company's software exists on 25 million computers, largely as a result of its partnership with Kazaa, the popular file-sharing service.
When internet users download the Kazaa software they also get WhenU's ad-serving software, or adware. Its software examines keywords, URLs and search terms in use on the user's browser and then selects which ads to serve the user. Its 400 advertisers include British Airways, JP Morgan Chase, General Motors, Priceline and Verizon.
But the ads are not only annoying for users who have to continually close the pop-up windows that appear on their computer screens; it can also have an affect on the web sites that the computer user had been trying to view.
Consequently, WhenU has faced a series of legal actions over its software, most notably from Utah-based contact lens seller 1-800 Contacts, which sued WhenU in October 2002 over the appearance of pop-ups advertising a rival contact lens company when users had specifically typed trade marked search terms relating to '1-800 Contacts'.
In January this year, 1-800 Contacts was awarded a preliminary injunction, prohibiting WhenU from generating pop-up ads when users visit the 1-800 web site.
But the lawsuit had another effect as well: it caught the attention of Utah legislators who drafted and passed the country's first anti-spyware law.
Enacted in March, the Spyware Control Act prohibits the installation of spyware onto another person's computer. It also prohibits the use of a "context-based triggering mechanism to display an advertisement that partially or wholly covers or obscures paid advertising or other content on an internet web site in a way that interferes with a user's ability to view" the site.
In short, the Act prohibits pop-up ads of the type generated by WhenU.
In April this year, WhenU sued the State. It claimed that the Act affects legitimate internet advertising companies and therefore violates the First Amendment – the right of free speech.
On Tuesday Judge Joseph C Fratto Jr. of the Third Judicial District Court in Salt Lake City agreed that the company would be seriously affected by the coming into force of the Act and granted the company a preliminary injunction that will prevent the Act coming into effect until such time as the case has been heard in full.
"This is an important decision for the entire internet advertising industry," said Avi Naider, WhenU's Chief Executive Officer. "Spyware is a problem and we want to put an end to it. WhenU supports appropriate anti-spyware legislation at the federal level, but unfortunately Utah's Act also impairs legitimate internet advertising."
At the time of writing there had been no comment from State officials.