The law provides those whose private information is being misused little recourse and provides little protection for those legitimately mining information. Even though large-scale breaches grab the headlines, many victims of identity theft frequently cause the offending disclosure by unwittingly downloading software from the World Wide Web (“Web”) or responding to email “phishing” and other online and offline scams. Although courts find a right to privacy in the United States Constitution, that right generally only protects citizens from invasions by the government, not by corporate America. Today, federal law enables spyware, adware, and phishing businesses to mine consumer data with impunity. This Article demonstrates that although some laws are ineffective, others provide consumers with some minimal relief. In addition, the Article proposes an innovative solution. It also discusses the implications of the “evil-ution” of software developers in the context of the law, analyzing the evolution of the software developer, the impact of the rapidly increasing skill of the developers, and the disastrous outcomes that may occur if governments fail to act.
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