“Spyware” is a broad term used to describe software that resides on a user’s computer and monitors the user’s online behavior. Though spyware may be helpful or benign, it can also be used for malicious purposes, commonly classified as “malware”. Consumers, who lack sophistication to avoid unintentionally downloading spyware, are especially vulnerable to the threat of malware. In lieu of this threat, it is important to understand the nature and scope of spyware problems affecting consumers. The paper will discuss how common law tort theories of trespass and trespass to chattel are difficult to apply to spyware, and how a consumer’s desktop is analogous to real property. Given this risk and lack of clear case law on the issue of spyware, a new statute is proposed to address the widespread use of spyware methods by legitimate business interests, and introduce a private cause of action based on real property and tort law.
Richard G. Kunkel, Protecting Consumers From Spyware: A Proposed Consumer Digital Trespass Act, 28 J. Marshall J. Computer & Info. L. 185 (2010)