The “SmartDownload” program, which forms part of the Netscape Communicator web browser, is designed to help users download material from web sites. Whilst it carries out this service, it compiles a profile of users which includes the name, type and source of executable files downloaded and cookie information which identifies the user.
Specht believes that this feature allows Netscape to build up a “continuing profile” on file transfers carried out by individual users. He asserts that this is a breach of the US Electronic Communications Privacy Act 1986 and the Computer Fraud and Abuse Act 1986. The former covers general privacy issues in electronic media and the latter covers federal computer crimes.
Specht’s action has been compared to an action currently pending against RealNetworks for allegedly tracking individuals using its music playback software.
In response to these actions, Jason Catlett of privacy group Junkbusters noted, “if a jury ever awards significant damages, all companies will be forced to change their attitude towards ‘spyware’, because it will become a significant investment risk”.