Priceline Responds, NY Conflates Adware and Spyware

I got a call from Priceline after filing a piece on New York’s adware settlement with Priceline, Travelocity and Cingular and the potential impact on brand advertisers. According to Brian Ek, Priceline’s VP of communications, the company supports the New York Attorney General’s position on adware, has not used any adware providers since the end of February 2006, and enacted an adware policy that meets all of the AG’s requirements that is published on their Web site.

All this is well and good. The problem is the muddled use of the term adware on the part of the AG in the settlement that seems to conflate adware and spyware, two very different things. Lots of people have adware on their computers and dig it. Pretty much any ad-supported software is adware. I won’t name any particular adware products since I’d rather not wake up tomorrow morning to a stream of angry e-mails from companies that don’t want to be put in that category.

The department’s press release states, “Direct Revenue installed adware programs onto millions of computers worldwide that delivered a steady stream of advertisements, monitored web sites visited by users, and collected data typed into web forms – without adequate notice or the consent of consumers. In addition, the adware programs were difficult to remove and consumers who had previously downloaded the company’s programs without full notice and consent, known as ‘legacy users,’ continued to receive Priceline, Travelocity and Cingular ads through those programs.”

What they are describing here is spyware, not adware. Or at least, they don’t seem too sure what they’re describing. Spyware is the nasty stuff, the stuff that is automatically installed on users’ computers, tracks their interactions online, or grabs personal data — all without user consent. Adware just serves ads, and trackware keeps track of their Web interactions, but the use of both is considered a legitimate advertising practice if specific guidelines are followed. Truste has outlined definitions and has been working on certifying this stuff for over a year or so now.

The NY settlement language, and evidently suits filed when Spitzer helmed the NY office, can’t seem to keep this stuff straight. This, my sources have implied, might have something to do with why NY’s Internet Bureau was OK with settling. It gives them good press, makes them look like heroes, and scares off other advertisers who might actually use it.