FC: Business Software Alliance targets NYC with "truce" campaign

[Declan McCullagh <declan () well com>]

**********

From: Mark Milone <milone () mindspring com>
Cc: "politech () politechbot com" <politech () politechbot com>,
        "Michael E. Smith (E-mail)" <mesmith () panix com>,
        "Jay Sulzberger (E-mail)" <jays () panix com>
Subject: BSA is Watching You (or NYC, at least)
Date: Sun, 29 Jul 2001 11:05:20 -0400

Taking the Subway home from work on Friday, I was stirred from my usual
commute-induced stupor by the sight of a dread inspiring advertising
campaign. Those of us who live in NYC [you know who you are], are
accustomed to seeing whole subway trains devoted to touting a particular
brand of sneaker, liquor, fashion line, etc. Well, on Friday Kenneth Cole
took a back seat to the Business Software Alliance's Software Truce
campaign (www.bsatruce.com).

Entire subway cars were plastered with threats of BSA 'targeting' New York
City. Paging Mr. Orwell . . . What, exactly, does this 'targeting' entail?
Incentives for informant network administrators and disgruntled employees?
Coordination with (and funding for) Mr. Ashcroft's Copyright Police (see
the comment made by Robert Holleyman, CEO of the BSA, in Declan McCullagh's
recent Wired article at
http://www.wired.com/news/politics/0,1283,45608,00.html)? Incorporation of
facial recognition software into NYC's photo radar system to track the
whereabouts of suspected infringers? ;^)

All I know from the ad is that offenders are given the choice of coming
clean in exchange for a 20% licensing discount or prosecution with the
promise of a public flogging. A quick view of the bsatruce.com site doesn't
give too much info. There is, however, software entitled 'GASP'  that
companies can use to audit their systems (aside: does the BSA employ the
same marketing genius responsible for naming 'Carnivore?').

The BSA privacy policy says that "The personal information volunteered by
our users via the download of this software will be used by Attest for
purposes of identification, direct marketing and online transactions."

That's fine, I guess, but what if the software is downloaded and installed
by an employee without the proper authority and in contemplation of leaving
its employment? In Shurgard Storage Centers v. Safeguard Self Storage the
federal district court in the Western District of Washington upheld a cause
of action in favor of employers who may suffer the loss of trade secret
information at the hands of disloyal employees who act in the interest of a
competitor and future employer. Based on this ruling, an employee could be
subject to federal criminal sanction for such actions, and the new employer
could be deemed a party who is participating in a criminal conspiracy.

I know it's a stretch, but could the hypothetical disgruntled employee be
considered an agent of the BSA that has accessed a "protected computer
without authorization, resulting in liability for BSA?"

Mark G. Milone, Esq.




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