“We want to ensure people control the programs that run on their PCs.”

Adware is a prickly issue: one user's unwanted spyware is another user's useful utility. But now the US courts might be about to provide an authoritative ruling on the legitimacy of such invasive software.

Security giant Symantec is looking for a legal ruling that would allow it to classify software from toolbar maker Hotbar.com as adware, and prevent it installing on users' computers.

Hotbar.com provides custom toolbars for Microsoft Internet Explorer and Outlook; it also offers users screensavers. According to Symantec: "These custom toolbars have keyword-targeted advertisements built into them. Hotbar.com can send information on browsing habits to various servers, which may be used for targeted marketing."

Furthermore, Symantec argues, Hotbar.com is using businesses' electricity, equipment and processing power, without consulting the owners of that resource. Even ‘benign' adware is eating up company resources, taking away processing power that is better allocated to corporate tasks.

But Hotbar refuses to be classified as spyware – it insists it offers a legitimate service, exchanging desirable utilities for useful marketing data. It also says that it does not store personally identifiable data, and will not share data without user consent. It has also issued cease-and-desist letters to anti-spyware makers demanding that its software is not classified as adware or spyware.

Symantec is now seeking legal authority to be able to block such utilities: "By asking the court for clarification on this issue in our favour, we hope to continue alerting customers about the presence of these program files, protecting them against poss-ible security risks. Through this effort, we're trying to ensure that our customers have more control over the programs that run on their computers," says Joy Cartun, senior director of legal affairs for Symantec.



Graham Titterington, principal analyst at IT industry research house Ovum, says blocking adware is a legitimate aim.

"If Symantec loses this, there will be a massive precedent set, but although I'm not a legal expert I can't really see it happening – it would send a message out to advertisers that they can deposit themselves on anyone's PC.

"It would be good for the judge to insist that adware purveyors pay for the time and resources they use without the permission of the owner – but that is not really realistic.

"I hope and expect traditional US respect for private property will triumph over modern day commercialism."

Simon Shooter, a partner at law firm Barlow, Lyde and Gilbert, believes Symantec has been wise to state its case early.

"Hotbar.com's position must be based on some form of trade defamation; it cannot make any claim to have a right of access to other people's systems. It must think Symantec's styling of them as an adware provider is derogatory and will hit their revenues and reputation.

"But the suit does uncover some interesting points. Will the judge be forced to legally define adware? Symantec is wise to take this pre-emptive strike: it wants to set a precedent. Since propagators of spyware and adware are not popular, the court is likely to look upon Symantec favourably."



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Ben Rossi

Ben was Vitesse Media's editorial director, leading content creation and editorial strategy across all Vitesse products, including its market-leading B2B and consumer magazines, websites, research and...

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