When Monitoring Software is Legal in the USA - Legitimate Forms of Spyware & Malware

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The software that is spyware with legitimate uses in the USA for employers, law enforcement, and parents is called monitoring software. Monitoring software can be used if you:

  • Have a court order to monitor the activities of someone
  • Are legally responsible for the actions and safety of someone such as a child or employee. You usually have the option to monitor the online activities of that person if you own the computer or computer system where the monitoring software is installed without a court order. However, there is gossip about some USA states considering the use or particular uses of monitoring software as criminal. Only time will tell.

Monitoring software can track every word typed, every program launched and every website visited. Monitoring software does not censor the content. It sends a report to the parent, employer or person who installed the program.

Employers use monitoring software for serious concerns such as:

  • Harassing or offensive email amongst employees
  • Disturbing correspondence to influence work performance
  • Sending resumes to prospective employers before notice of resignation is provided
  • Discussing corporate strategy in email (example: a request for the proper procedure to fire an employee to avoid a wrongful termination claim)
  • Monitoring the amount of an employee’s time spent for personal business during working hours
  • Monitoring whether employees are installing unauthorized software copies on company computers
  • Monitoring whether employees are acquiring illegal software through the internet

When employment requires the use of a computer as a necessary tool to perform the job duties, there may be an employment contract. By agreeing to this contract, the employee may be giving the employer permission to monitor all activities during the time (not necessarily the location) used for job-related functions. Each contract is unique. Some specify an email policy. Others do not distinguish between an email privacy policy and a general privacy policy. At the office, the employee’s desk, computer, files, etc belong to the employer. The owner of the property has an inherent right to use and search through their belongings. Employees should conduct themselves on the assumption their employer can read each email sent and received along with all online activities including those during breaks and lunch. This is not to say that your particular employer logs and monitors all your activities even though employers do have the option. USA government employees should remember that their emails and correspondence are public information.

Install and use more than one anti-virus software and spyware detection software. You can have them running at different times. Be aware of how and when your computer reacts differently than its usual behavior. If you have any suspicions of criminal activity directed specifically towards your home computer, contact the Internet Crime Complaint Center in the USA or your local cybercrime task force.

Under the supervision of the Anti-Spyware Coalition, the private antispyware industry in the USA has developed its own set of voluntary self-regulatory working reports that define spyware, set out objective criteria for flagging unwanted software, and lay out an approach that lets antispyware companies quickly and equitably resolve disputes with other software makers.

The USA Federal Trade Commission follows three guidelines for enforcement of laws related to spyware:

  1. A consumer’s computer is their property. No software maker, company, website or individual should be able to access or use the resources of their computer without their consent.
  2. EULAs should tell the consumer in everyday language the terms of the agreement to meet the standard of adequate disclosure.
  3. Consumers should have the option to uninstall or disable software they do not want.