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Witness Testimony

Mr. David Baker
Vice President, Law and Public Policy
1375 Peachtree Street
Atlanta, GA, 30309

Spyware: What You Don't Know Can Hurt You
Subcommittee on Commerce, Trade, and Consumer Protection
April 29, 2004
10:00 AM

Mr. Chairman, Ladies and Gentlemen of the Committee, thank you for inviting me here today. I am Dave Baker, Vice President for Law and Public Policy with EarthLink. Headquartered in Atlanta, EarthLink is the nation's 3rd largest Internet Service Provider (ISP), serving over 5 million customers nationwide with dial-up, broadband (DSL, cable and satellite), web hosting and wireless Internet services. EarthLink is always striving to improve its customers' online experience. To that end, we appreciate the attention this committee is paying to the growing problem of spyware.

Spyware: The Next Spam?

We may be at a point in time with regard to the development and proliferation of spyware that we were just a year or two ago with spam. In other words, spyware is just now being noticed by many consumers yet threatens to grow to the point where it could soon compromise their online experience and security, if it does not do so already.

As the Wall Street Journal noted just this past Monday, April 26,

"Indeed, spyware - small programs that install themselves on computers to serve up advertising, monitor Web surfing and other computer activities, and carry out other orders - is quickly replacing spam as the online annoyance computer users most com-plain about."

Also like spam, we must fight spyware on several fronts, using legislation, enforcement, customer education and technology solutions. To this end, we applaud the efforts of Congress and this committee to introduce legislation such as H.R. 2929, the Safeguard Against Privacy Invasions (SPI) Act. Prohibiting the installation of software without consent, requiring uninstall capability, establishing requirements for transmission pursuant to license agreements, and requiring notices for collection of personally identifiable information, intent to advertise and modification of user settings are all steps that will empower consumers and keep them in control of their computers and their online experience.

EarthLink Experience

As a leading Internet provider, EarthLink is on the front lines in combating spyware. EarthLink makes available to both its customers and the general public technology solutions to spyware such as EarthLink Spy Audit powered by Webroot ("Spy Audit"). Spy Audit is a free service that allows a user to quickly examine his or her computer and detect spyware. A free download of Spy Audit is available at www.earthlink.net/spyaudit. (See Exhibit A, attached hereto.) EarthLink members also have access to EarthLink Spyware Blocker, which disables all common forms of spyware including adware, system monitors, key loggers and Trojans. EarthLink Spyware Blocker is available free for EarthLink members as part of Total Access 2004, our Internet access software. See www.earthlink.net/home/software/spyblocker (Exhibit B, attached hereto).

Total Access 2004 includes useful tools such as spamBlocker, Pop-Up Blocker, Virus Blocker, Privacy Tools and Parental Controls in addition to Spyware Blocker.

On April 15, 2004, EarthLink and Webroot announced the results of their Spy Audit report. Over 1 million Spy Audit scams performed from January 1, 2004 to March 31, 2004 found over 29,500,000 instances of spyware. This represents almost 28 instances of spyware per scanned PC. While approximately 23.8 million of these installations were mostly harmless adware cookies, the scans revealed over 5.3 million installations of adware, and more seriously, over 184,000 system monitors, and almost 185,000 Trojans. A copy of the EarthLink/Webroot press release detailing these findings is attached hereto as Exhibit C.


Spyware is thus a growing problem that demands the attention of Congress, the FTC, consumers and industry alike. Through the efforts of Congress to introduce legislation like the SPI Act, the FTC to investigate the issue at its recent spyware workshop, and through industry development of anti-spyware tools, we can all help protect consumers against a threat that is often unseen, but very much real.

Thank you for your time today.