Spyware vs. Spyware: Software Conflicts and User Autonomy
16 Ohio State Tech Law Journal 25, 2020
43 Pages Posted: 4 May 2020 Last revised: 26 May 2020
Date Written: April 7, 2020
In July 2019, Apple silently updated macOS to uninstall a feature in the Zoom web-conferencing software from users' computers. Far from being an abberation, this is an example of a common but under-appreciated pattern. Numerous programs deliberately delete or interfere with each other, raising a bewildering variety of legal issues.
Unfortunately, the most common heuristics for resolving disputes about what software can and cannot do fail badly on software-versus-software conflicts. Bad Software Is Bad, which holds that regulators should distinguish helpful software from harmful software, has a surprisingly hard time telling the difference. So does Software Freedom, which holds that users should have the liberty to run any software they want: it cannot by itself explain what software users actually want. And Click to Agree, which holds that users should be held to the terms of the contracts they accept, falls for deceptive tricks, like the the virus with a EULA. Each of these heuristics contains a core of wisdom, but each is incomplete on its own.
To make sense of software conflicts, we need a theory of user autonomy, one that connects users' goals to their choices about software. Law should help users delegate important tasks to software. To do so, it must accept the diversity of users' skills and goals, be realistic about which user actions reflect genuine choices, and pay close attention to the communicative content of software.
Keywords: Spyware, Software, User Autonomy
JEL Classification: k00
Suggested Citation: Suggested Citation