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On February 7, 2002, Attorney General Eliot Spitzer announced that the State of New York had filed suit against Network Associates, developers of McAfee VirusScan and assorted other security software, for what is described as "speech restrictions that the company has placed on its software users". Specifically, the debate centers on language published at various times on the Network Associates website, on product packaging, and in the end-user licensing agreement (EULA) stating, "The customer shall not disclose the results of any benchmark test to any third party without Network Associates’ prior written approval". Though Network Associates denies the language was designed to stifle reviewers, Spitzer cites an incident which occurred between Network Associates and Network World Fusion after the magazine published a review of Network Associates' Gauntlet firewall. According to Spitzer's petition, Network Associates emailed the magazine demanding "a correction/retraction" and warning that Network World had "willfully violated [Network Associates'] license agreement, particularly since [the reviewer] was informed that [Network Associates'] were not participating."

Software licensing agreements have long been a point of contention between software vendors and the public. A legislative draft dubbed UCC 2B underwent heated debate for some time before being abandoned in favor of the Uniform Computer Information Transactions Act (UTICA). Currently adopted in two states, Virginia and Maryland, UTICA continues to enjoy its own controversy. However, recent revisions to the enactment do include a proposed ammendment to add Section 105(d) which invalidates EULA's that prohibit "lawful public discussion of the quality of performance of the computer information" while preserving rights "under trade secret, trademark, defamation, commercial disparagement, or other laws." Of course, Network Associates is not the lone wolf when it comes to restricting free speech via the EULA. Others include Microsoft and eEye Digital Security as revealed by a simple Google search on the terms 'eula+benchmark'.

Network Associates has since changed the wording of their license agreement, revising it to state in a more reviewer-friendly tone, "Network Associates, Inc. updates its products frequently and performance data for its products change. Before conducting benchmark tests regarding this product, contact Network Associates to verify that you possess the correct product for the test and the then current version and edition of the product. Benchmark tests of former, outdated or inappropriate versions or editions of the product may yield results that are not reflective of the performance of the current version or edition of the product." All of this seems a moot point, as the EULA which is included with the product installation specifically states "This Agreement sets forth all rights for the user of the Software and is the entire agreement between the parties...This Agreement supersedes any other communications with respect to the Software and Documentation." And that final license agreement does not address the issue of reviewer testing nor publishing of benchmark results.

In any event, with support costs of $2.95 per minute, perhaps what users should really be concerned with is the part of the final license agreement which states, "In no event shall Network Associates or its suppliers be liable to you for any consequential, special, incidental, or indirect damages of any kind arising out of the delivery, performance, or use of the software. Even if Network Associates has been advised of the possibility of such damages." In other words, install at your own risk.