(This is the final posting in a series about safety in this digital age. Click here to read the previous article in the series.)

Spyware is software that monitors a computer user’s browsing habits.  Some Spyware is also capable of collecting personal information, and recording keystrokes. Some spyware contains other features such as taking snapshots of the computer screen; restarting, shutting down, and logging off the computer; controlling the desktop and mouse; and even making the computer talk.  Spyware works by sending the information it gathers to the installer’s computer via email in the form of detailed “activity sheets.”  The software is often inexpensive and easy to install but very difficult to detect without the use of special anti-spyware detection software.

Some spyware is also “acquired” when one downloads innocent looking software, music, or online videos, or by opening an email, IM, or text message.  In a 2004 study conducted by America Online and the National Cyber Security Alliance, seventy-seven percent (77%) of those surveyed did not think they had spyware on their computers, but eighty percent (80%) of the computers tested were infected with some sort of spyware program.

Spyware is used legitimately by parents on their children’s computers or by employers on their employees’ work computers when the employee knows he/she is being monitored.   However, when this information is obtained without the user’s knowledge, 18 U.S.C. § 2701, the “Unlawful Access to Stored Communications” Act is violated.  The Act states one may not “intentionally access without authorization a facility through which an electronic communication service is provided . . . and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system . . . .”

There are simple ways to protect yourself or your client from spyware. Advise clients to only install software from web pages they trust and tell clients to carefully read the fine print in licensing agreements, looking for any reference to agreeing to a company’s collection of a person’s computer’s information. Also, advise clients to be especially wary of popular free music and video file-sharing programs.  Web links found in email spam or other unsolicited messages frequently contain spyware.  Installing quality anti-spyware programs that find and delete spyware as well as running the anti-spyware programs once a week will better protect one’s computer.

KeyKatcher: Spyware Software

KeyKatcher is a spyware program that some divorce litigants have used to illegally monitor and spy on their spouses.   KeyKatcher software is easier to use when the couple lives together and the “spy” has constant physical access to the computer.  A KeyKatcher is a small device resembling a flash-drive that is connected to a computer’s keyboard or tower and records up to 262,000 keystrokes, or over 160 pages.   After the keystrokes are recorded, the “spy” can remove the device and download the information onto another computer.  To prevent the use of KeyKatcher on a computer, clients should check the keyboard port on the back of their computer tower.  If they find a foreign device, they should physically remove the device and have a qualified forensic computer expert analyze it.

Conclusion of the Series of Safety and Security in a Digital Age

Judges, lawyers, clients and the “average Joe” need to educate themselves about the various types of technology that can infringe upon their privacy and potentially cause them harm.  The reason for concern is that our laws are currently unable to keep up with the development of new digital gadgets and software. Thus, it is imperative for all to understand the potential abuses and to warn clients, friends and family from using any illegal means to obtain evidence about another individual without that individual’s knowledge and to apprise others how to protect themselves from becoming a victim of such abuse.

[1] Sharon D. Nelson and John W. Simek, “Spy v. Spy,” 28-WTR Fam. Advoc. 20, 21 Winter 2006.

[1] Spyware and the Law, http://www.spamlaws.com/spyware-laws.html (last visited Aug.4, 2009).

[1] Sharon D. Nelson and John W. Simek, “Muddy Waters: Spyware’s Legal and Ethical Implications,” ABA, http://www.abanet.org/genpractice/magazine/2006/jan-feb/spywarelegalethicalimplications.html (Accessed August 4, 2009).

[1] ThinkGeek KeyKatcher Page, http://www.thinkgeek.com/gadgets/security/5a05/ (last visited July 15, 2009).