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SALT LAKE CITY (AP) -- A New York Internet advertising company has filed a lawsuit against Utah alleging an anti-spyware law passed during this year's legislative session unconstitutionally limits the right to advertise.
The complaint, filed late Monday in 3rd District Court by WhenU.com Inc., lists the state, Gov. Olene Walker and Attorney General Mark Shurtleff as defendants. It seeks to have the court prohibit the act from taking effect early next month.
The Spyware Control Act makes it illegal to create or install computer software that monitors Internet activity and sends the information elsewhere, usually without the user being aware of it or consenting to it. The law also curbs pop-up advertising on the Internet and calls for penalties of $10,000 per violation.
The lawsuit claims the law violates WhenU's constitutionally protected right to advertise but does little to protect the privacy of computer users. The lawsuit claims WhenU's software, "one of the apparent targets" of the law, is installed only with permission and doesn't invade privacy.
"The state of Utah does not have a valid interest in regulating a company like WhenU, nor, given the nature of the Internet, can it promulgate such regulations without impermissibly burdening interstate commerce," the lawsuit states.
Paul Murphy, spokesman for the Utah Attorney General's Office, said Tuesday morning his office hasn't seen the lawsuit and can't comment until it does.
The lawsuit says the act was formed in large part due to lobbying by Draper-based 1-800 Contacts Inc., which sells replacement contact lenses via the Internet. The two companies have been in litigation since 2002 in federal court in New York, with 1-800 Contacts trying to prohibit WhenU from placing Internet ads for 1-800 Contacts' competitors.
1-800 Contacts objects to the look-alike pop-up ads showing offers from competitors but made to look as if they were placed by 1-800 Contacts.
But WhenU states that its advertising is "contextual marketing," meaning it advertises products and services to consumers who have a "demonstrated interest in those products and services."
The trade organization Internet Alliance, America Online, Google, Microsoft, Yahoo and CNET Networks also have objected to the Utah law, according to an April 2 report in the online version of PC World magazine.
(Copyright 2004 by The Associated Press. All Rights Reserved.)
