"What I Did Over Summer Vacation"

My summer was swell. I interned at EPIC. This was my first chance to adapt law school habits to the workplace. In the fast-paced world of Capitol Hill, and of electronic privacy, assignments changed too quickly, and their subject matter was too novel and complex, to permit me the luxury of analyzing every facet and contingency of every possible issue. I learned to mass-produce sufficient work rather than hand-craft perfect work. With each project that passed my desk, my school-honed intensity loosened, notch by notch, and my output became more functional and less abstract. As a result, my first project was my favorite.

On our first day, Marc received a last-minute invitation to testify before a Senate subcommittee regarding S.1625, the "Counter-Spy Act" -- a bill to expand the FTC's leverage against purveyors of spyware. By tomorrow night, he needed a briefing on existing FTC authority to pursue spyware. A staff attorney assigned each intern a subtask. Mine was to summarize this list of FTC enforcement actions. "My suspicion --" mused Marc as we returned to our desks, "-- is that this bill will snag on the definition spyware."

That summary was a failure. I refused to draw conclusions regarding the FTC's anti-spyware authority, since each enforcement action was driven by the vague category of "unfair and deceptive practices" against "consumers" (15 U.S.C. 41), and anyhow would always end in a settlement or a consent decree rather than judge-made law. Thus, I concluded, there was no law. I felt privately vindicated by Marc's suspicion that, after all, spyware is hard to define.

I entered the Senate hearing room pumped for the next step. I had volunteered to write EPIC's new spyware info page. While my fellow interns collapsed in their chairs after our marathon preparations, I was scribbling notes and circling hyperlinks on copies of the witnesses' testimony I'd stolen from the press table. I enjoy journalistic writing, I believe there exists a best possible way to translate arcana into public language, and I felt that if I was to distinguish EPIC's new spyware page from all the competition on the web, I had to write that translation. If the definition of spyware was (in Marc's opinion) the snag, then I would define it -- or account for the controversies that complicate the effort.

Like Michelangelo's most puzzling experiments, it got stuck in drafts.

http://74.125.45.132/search?q=cache:L2VCFbJp9MoJ:epic.org/privacy/dv/Spyware_Test061108.pdf+site:epic.org+spyware&hl=en&ct=clnk&cd=1&gl=us&client=firefox-a http://www.antispywarecoalition.org/documents/

-- AndrewGradman - 18 Dec 2008