And Zango denies Edelman’s allegations I posted on earlier…. one reason- Hotbar is not an application covered under the settlement.

Golden quote at Information Week.

Zango’s response in the past to Edelman’s allegations has been to impugn the motives of the messenger. “There are people, and I won’t identify anyone specifically, but if you look at the loud detractors of us in particular — not of the space, because spyware is a problem — but the loud detractors of Zango, most of them, if not all of them, have a direct financial benefit to continue to churn out fear about us and about this space,” said Smith in November. “Whether they’re selling software or consulting services, they have a direct financial incentive to make us look bad.”

And that remains the company’s position. “Ben does have a financial incentive here,” said McGraw. “He purports to be an independent academic but he does benefit commercial from reports like this. It’s not unnoticed by us that as a paid consultant in litigation against Zango, he uses this in order to garner extra fees from his client base.”

Zango too has a financial incentive here, as can be inferred from its decision to sue security company PC Tools Limited, which makes a program called Spyware Doctor that uninstalls Zango’s software.

In June, Zango lost the first round in that case when the judge denied Zango’s application for a temporary restraining order. The judge said it was unlikely Zango would prevail in its allegations of tortious interference, trade libel, or violations of the Washington Consumers Protection Act. The judge considered PC Tools classification of Zango’s software as something to be removed to be reasonable “given Zango’s past conduct” and other companies’ assessment of Zango’s software.

Years ago I was a nurse. One could imply I had a vested interest in keeping people sick. But I wouldn’t- it is a simple matter of ethics. The spirit of an oath I took.

I was on the scene long before Zango, or before the big A/V companies joined in, or the government, or even Ben Edelman- I have seen the kitchen sink. I started from the mindset of advertising software could be a great idea, to a neutral stance (mediating the Summit at the Yale Club), and finally- this model is so broken and there is little to no incentive to fix it, and no penalty harsh enough to deter it. I have seen little if any improvement.

I am still trying to figure out if the guy in the article is the Zango fellow (That you Ken? I recall the person being new to Zango and thinking- I feel sorry for this person.) who, very politely I add, called me up during the RSA show while I was on the floor talking about meeting up and their FTC Certification. I told him I didn’t realize the FTC certified companies. News to me. Must have been a mistake or a special thing. I think someone has a video of that call. I must see if it can be retrieved because I think I can be heard.

I have seen this before, time and time again- don’t like the message- attack the messenger or their motivations. I have read it before it too…sometimes in e-mails the public doesn’t get to see. Maybe they should? (Eric Howel recall our conversation standing in line in San Francisco? What we would rather be doing?)

There is more…

In a November, 2006 interview with InformationWeek following the announcement of the FTC settlement, Zango CEO Keith Smith sounded contrite. He acknowledged that pop-up ads — at least “traditional” ones, which may be distinct in his mind from the ones Zango delivers — are problematic and distanced his company from the actions of its affiliates. “The traditional pop-up is typically a terrible experience for consumers,” he said.

Yet, Zango continues to deliver that experience to consumers, according to Edelman, who points to “ongoing Zango-designed installation sequences which install Zango pop-up ad software without any on-screen disclosure of material terms” and other pop-up ads that violate the FTC settlement requirements

Thus: according to the research:

“On computers running Windows XP Service Pack 2, the installation sequence described in the preceding section appears somewhat differently. But the core shortfall is the same: Here too, Zango installs without unavoidable and prominent disclosure of material terms. Installation proceeds in five steps:

1) Various web sites serve ads like that shown in the top screenshot at right. In the example shown in at right, a freestanding popup asks “Do you want to block Junk Emails ?” (s.i.c.). In some instances, these installations begin with a Zango banner ad embedded within a third-party publisher’s web site (as shown in the first screenshot of the preceding section).

2) If a user clicks Zango’s ad in step 1, the user is taken to the landing page shown in the second screenshot at right. The screenshot shows that landing page just as IE displayed it (without any adjustment of its size or shape). Bullet points tout the various features Zango promises (“Protects your Inbox from annoying Junk mail”, s.i.c., etc.), but Zango makes no mention of any adverse effects or any bundled advertising whatsoever. An animated red arrow encourages users to press a button labeled Free Download.

3) If a user presses the Free Download button, the user receives the standard Internet Explorer download confirmation screens shown in the third and fourth screenshots at right. These are standard IE SP2 screens shown during any EXE download.

4) Zango then shows a screen captioned “Welcome to the Spam Blocker Utility Installation” (the fifth screenshot at right). This screen presents a lengthy End User License Agreement (4,070 words, 45 on-screen pages) within a scroll box. The first page of the EULA mentions the single word “advertising” without any specific disclosure of the type of advertisements (e.g. pop-up ads and in-toolbar ads). The first page mentions that “our [Zango's] software collects information” but says absolutely nothing about the nature of information collected, or about where that information is sent or how it is used.

5) Finally, Zango asks the user to choose between the “free ad-supported version” and the “Paid version” (the bottom screenshot at right). But as explained in the prior section, this choice is illusory: Nowhere does Zango describe the kind of ads at issue, nor does Zango offer any abort or cancel option for users who want neither ads nor a charge.

If a user chooses the “ad-supported” option, Zango installs in full — including its browser toolbar and its pop-up ads. Users have no further opportunity to cancel installation.

Bold text by me- not sure which one is installed- can they just arbitrarily roll out new lines and product names to evade a settlement?…

Lastly the banner…it depends on interpretation, but I seem to recall, years ago, Bonzi Software agreed in a settlement of a class action lawsuit to stop presenting banner ads disguised as fake user interfaces (FUI) or fake Microsoft dialogue boxes. Thanks Metafilter…is that kind of advertising ethical or really just trickery?

You can be the judge if it clearly and prominently discloses the material terms prior to the display of, and separate from, any [EULA] and if Zango labeled each of its ads with a clear and prominent marking as to the source of the ad, as well as a hyperlink to removal and complaint procedures…well you can judge part of the time- as I get the read on Zango’s response- this seems to only apply to “the software in the settlement”…is this really our legal system- are they really serious? Yep- they do it because it works. Try asking any aware teacher at your child’s school computer lab.

ADDENDUM: Just read the Zango blog “response”.

Point 1- I am not a lawyer, yet I do not recall any provision for heritage or grandfathered applications in the FTC settlement. I recall “any software program” being cited.

Point 3: What is considered archaic and out-dated of a test computer? I think Ben tests, as most do, using a virtual machine at 800×600. Easy to read and hardly manipulation in my eyes.

As an aside, paperghost seems to be finding similar problems. I bet he isn’t the only one either.

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