TechLaw

The House of Representatives yesterday voted 368-48 to approve the SPY Act (H.R. 964). On the surface, the vote was a resounding victory for consumers who would like to know what kinds of information is being collected online and by whom. But on closer inspection we see that over three dozen legislators walked away from the SPY Act yesterday, even though they had voted for tougher versions of the same bill in prior Congresses.

As Winston Churchill might have put it, the vote was not the beginning of the end for spyware but the end of the beginning in the marketing lobby's war against the war on spyware.

In 2004, the SPY Act (H.R. 2929) passed the House 399-1. The next year, the House voted 393-4 to approve the SPY Act (H.R. 29). Marketers, who apparently have little to fear from the Senate, had been working hard to improve their fortunes in the House this time around. A strongly worded letter, signed by the U.S. Chamber of Commerce, the Direct Marketing Association, the American Bankers Association, Acxiom Corp., Experian, and other leading representives of the business community, circulated in advance of the vote. Signers charged that H.R. 964 is bad for business. The measure "cuts to the heart of the information economy," they wrote.

The problem with H.R. 964 was that it is privacy legislation, an idea whose time has apparently not yet come. Section 3 creates a notice-and-consent scheme for the online collection of personal information. Lobbyists working Congress on the eve of the vote said they could not support any spyware legislation that contained a notice-and-consent mechanism. Giving consumers notice of online information collection technologies, they said, "would limit the seamless Internet experience that is responsible for the widespread adoption of the Internet by consumers."

This argument resonated with the following legislators, all of whom had once cast votes in favor of the SPY Act:

1. Rep. Robert B. Aderholt (R-Ala.)
2. Rep. W. Todd Akin (R-Mo.)
3. Rep. J. Gresham Barrett (R-S.C.)
4. Rep. Judy Biggert (R-Ill.)
5. Rep. Rob Bishop (R-Utah)
6. Rep. Roy Blunt (R-Mo.)
7. Rep. Jo Bonner (R-Ala.)
8. Rep. Kevin Brady (R-Texas)
9. Rep. Chris Cannon (R-Utah)
10. Rep. John R. Carter (R-Texas)
11. Rep. K. Michael Conaway (R-Texas)
12. Rep. Geoff Davis (R-Ky.)
13. Rep. Tom Davis (R-Va.)
14. Rep. Tom Feeney  (R-Fl.)
15. Rep. Jeff Flake  (R-Az.)
16. Rep. Virginia Foxx (R-N.C.)
17. Rep. Phil Gingrey (R-Ga.)
18. Rep. Bob Goodlatte (R-Va.)
19. Rep. Alcee L. Hastings (D-Fl.)
20. Rep. Peter Hoekstra (R-Mich.)
21. Rep. Michael M. Honda (D-Calif.)
22. Rep. Bob Inglis (R-S.C.)
23. Rep. Sam Johnson (R-Texas)
24. Rep. Jack Kingston (R-Ga.)
25. Rep. Tom Latham (R-Iowa)
26. Rep. Zoe Lofgren (D-Calif.)
27. Rep. Daniel E.Lungren (R-Calif.)
28. Rep. Donald A. Manzullo (R-Ill.)
29. Rep. Jerry Moran (R-Ks.)
30. Rep. Devin Nunes (R-Calif.)
31. Rep. Stevan Pearce (R-N.M.)
32. Rep. Tom Price (R-Ga.)
33. Rep. Pete Sessions (R-Texas)
34. Rep. Mac Thornberry (R-Texas)
35. Rep. Todd Tiahrt (R-Ks.)
36. Rep. Lynn A. Westmoreland (R-Ga.)
37. Rep. Joe Wilson (R-S.C.)

Most of these legislators voted not once but twice in favor of earlier versions of the SPY Act. Tougher versions of the measure didn't attract much interest in the Senate two years ago. It is hard to imagine it will do better this time around.