First Do No Harm: The Problem of Spyware

44 Pages Posted: 20 Sep 2005

See all articles by Susan P. Crawford

Susan P. Crawford

Harvard University - Berkman Center for Internet & Society


Over the last few years, there has been enormous U.S. interest in legislating rules governing spyware. This Article provides a comprehensive overview of the bills that have been proposed (and passed) in the states and on the federal level. It argues that because spyware is impossible to define, these legislative efforts may do harm to the extent they either are focused on design mandates or are attempts to require notice for electronic interactions. Only a technical approach - and only a particular kind of technical approach at that - will work in addressing spyware. Technical actors need to take an immune system approach to spyware, dividing their efforts and experimenting in the field the same way immunity networks do. If we think of the legal system as a medical expert operating on this difficult disease, our first priority must be to wait to allow these already-emerging immunity networks to take effect, and to do no harm in the interim. This is a time for patience, not for the knife.

Keywords: spyware, cyberlaw

Suggested Citation

Crawford, Susan P., First Do No Harm: The Problem of Spyware. Berkeley Technology Law Journal, Vol. 20, p. 1433, 2005, Cardozo Legal Studies Research Paper No. 134, Available at SSRN:

Susan P. Crawford (Contact Author)

Harvard University - Berkman Center for Internet & Society ( email )

Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA 02138
United States

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