A recent panel discussion between technology and legal analysts provided a different angle to the spyware controversy, of which advertisers need to be aware.

I attended a panel on spyware recently titled, "Solutions Strategies." The discussion was part of a Workshop on Spyware hosted by New York University's Information Law Institute. (Unfortunately, I didn't make it to the whole event, though).

This discussion was actually quite different from what I'd heard before-- for two main reasons. First, the arguments over spyware have, as we had hoped, moved forward. Today's problem is less, What is spyware? And more, What are we going to do about it?

Second, this panel wasn't made up of folks from the online marketing sphere. In fact, although some marketers were in attendance, all four speakers -- and best I could tell, the audience -- were technology and legal analysts, with a few bleary eyed students in attendance. So their perspective was a little different, and sometimes even hostile to many advertising platforms. Yet while I may not have agreed with everything said, it was valuable to hear a take on solutions to spyware from outside of the marketing sphere. In fact, many in the online space may do well to take note of what was suggested.

What solutions to spyware?
The panel I attended had four participants -- Ben Edelman of Harvard University (and blogging fame), Professor Orin Kerr from GWU Law School, the redoubtable Ira Rubinstein of Microsoft, and HP's Mark Miller -- and was moderated by Harry First, professor at NYU Law. First started off by joking that "spyware is a perfect field for lawyers, because the language we use is malleable," and this set the tone for each panelist to present his own take on how best to tackle spyware.

Technical progress
Reflecting that this wasn't a marketing workshop, two of the panelists focused on the technical side of things. Ira Rubinstein and Mark Miller both suggested that changing how software is distributed and used would be the best method for combating spyware. The ever incisive Rubinstein argued for a focus on distribution, highlighting the value of "code signing." If more software was digitally signed -- i.e., if the author could be strictly determined -- he claimed that, "you’d have the basis for stronger trust assertions." This standard of trust, Rubenstein believes, if combined with reputation standards, could be "the beginnings of a real solution."

Mark Miller, however, thought differently. "Spyware is an architectural issue," he said, meaning that the problem wasn't how users got the software, but what it did once it was downloaded. The real issue, Miller argued, was that any application, once opened, can do anything at all "without breaking any of the OS's rules."

Miller went on to give an intriguing presentation of new software being developed by HP that restricts each software program to a sort of user "slice." Since the user slice has a very restricted set of access privileges, the actions a piece of software can take become quite limited. So if software turns out to be malicious, it still can't affect or damage information outside of its restrictions.

Legal maneuvers
The words used by lawyers might be malleable, but Orin Kerr didn't think they could be bent to neatly fit around the problem of spyware. According to Kerr, "there are no good ways for the law to address the problem." Having started so optimistically, he went on to explain how he felt the available venues for legal action were insufficient. From the "shady zone" in which spyware operates to the difficulty in tracking down the small purveyors of online software, Kerr argued that neither criminal nor civil proceedings were likely to do the trick.

So what about new legislation? Again, there was some skepticism. "The solution," Kerr said, "can be worse than the disease." Those of us who remember the original version of HR 2929 (the "Spy Act"), understand collateral damage and the law of unintended consequences. Kerr's point is well taken.

"Sunlight is the best disinfectant"
Ben Edelman's focus was somewhere outside of strict legal or technological analysis. He started by stating that "disclosure is kind of an amorphous concept," but went on to outline a series of what we believed were unacceptable and deceptive adware disclosures. He also noted that both major advertisers and search engines were helping to fund spyware. Although a search engine could restrict it selling ads to those who were flagged as adware or spyware, Edelman said that "Google doesn't even claim to provide any oversight on Adsense." He argued that this can lead to consumers downloading deceptive software from search links and even lead to search ads showing up in spyware pop-ups.

Ultimately, Edelman seemed to favor the idea of shaming advertisers into changing their practices-- and that school of thought has definitely received some support recently. The FTC, for example, has threatened to humiliate advertisers who advertise with spyware (or adware) companies, and the CDT has just released a report which would seem to do just that. With both the FTC and the CDT getting behind this agenda, online marketers may want to take notice. It's also becoming clear that this viewpoint is strikingly different from the one we have from within the online marketing industry.

Seeing things a little differently
From what I saw at the panel, there are two major differences between the views. First of all, the agency theory is gaining steam. In other words, advertisers are increasingly going to be held accountable for where their ads appear. Secondly, those talking about "solving the spyware problem" often make little distinction between spyware and adware. Since they may believe that most adware programs are deceptively installed, the focus is often on removing the whole spectrum of applications, not creating a hierarchy between adware and truly malicious malware.

So I think most interactive marketers -- whether in the adware space or not -- have an interest in following this debate. As opposition to different forms of online advertising increases, we're all likely to feel the consequences.

Isaac Scarborough is manager of market intelligence at Chapell & Associates. Read full bio.