As the debate over spyware continues to make waves in Congress, many states are also taking action to curb the incidence of the pernicious software. Yesterday, the Alaska State Senate passed a bill to put a ban on spyware. The Alaska bill, which appears to focus more on the adware aspects of spyware, including pop-up ads, adds a section to the state's current laws on unfair trade and business practices to include spyware. While this law is unlikely to have an adverse impact on the legitimate software market, it reintroduces the question of whether or not states should be legislating on this issue. The spyware issue is one that cannot be reasonably corrected at the federal level, due to its medium, the Internet, and thus its global nature, not to mention the difficulty in tracking spyware purveyors. These factors make it even less likely that state legislation will have a positive impact.

As stated previously in this space, federal legislation on spyware is a cause for alarm, based on the vague definition of spyware and implications such legislation could have on legitimate software and innovation, yet it may prove to be a necessary evil to thwart state legislation from running rampant and hurting interstate commerce as well as innovation in the software industry and the Internet as a whole. The task at hand then becomes choosing the appropriate legislation that will not only maximize positive benefits, but equally as important, limit the potential negative effects of regulation.