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109th
CONGRESS
1st Session
1st Session
H. R. 29
IN THE HOUSE OF REPRESENTATIVES
January 4, 2005
Mrs.
BONO (for herself, Mr. TOWNS, Mr. BARTON of Texas, Mr. BUYER, Mr. GILLMOR, Mr.
HALL, Mr. RADANOVICH, Mr. WALDEN of Oregon, Mr. FERGUSON, Mr. WHITFIELD, Mrs.
CUBIN, Mr. STEARNS, Mr. BILIRAKIS, Mr. TERRY, and Mr. OTTER) introduced the
following bill; which was referred to the Committee on Energy and Commerce
A BILL
Be it
enacted by the Senate and House of Representatives of the United States of
America in Congress assembled,
SECTION 1. SHORT TITLE.
This
Act may be cited as the `Securely Protect Yourself Against Cyber Trespass Act'
or the `SPY ACT'.
SEC. 2. PROHIBITION OF
DECEPTIVE ACTS OR PRACTICES RELATING TO SPYWARE.
(a)
Prohibition- It is unlawful for any person, who is not the owner or authorized
user of a protected computer, to engage in deceptive acts or practices that
involve any of the following conduct with respect to the protected computer:
(1)
Taking control of the computer by--
(A)
utilizing such computer to send unsolicited information or material from the
protected computer to others;
(B)
diverting the Internet browser of the computer, or similar program of the
computer used to access and navigate the Internet—
(i)
without authorization of the owner or authorized user of the computer; and
(ii)
away from the site the user intended to view, to one or more other Web pages,
such that the user is prevented from viewing the content at the intended Web
page, unless such diverting is otherwise authorized;
(C)
accessing or using the modem, or Internet connection or service, for the
computer and thereby causing damage to the computer or causing the owner or
authorized user to incur unauthorized financial charges;
(D)
using the computer as part of an activity performed by a group of computers
that causes damage to another computer; or
(E)
delivering advertisements that a user of the computer cannot close without
turning off the computer or closing all sessions of the Internet browser for
the computer.
(2)
Modifying settings related to use of the computer or to the computer's access
to or use of the Internet by altering—
(A)
the Web page that appears when the owner or authorized user launches an
Internet browser or similar program used to access and navigate the Internet;
(B)
the default provider used to access or search the Internet, or other existing
Internet connections settings;
(C)
a list of bookmarks used by the computer to access Web pages; or
(D)
security or other settings of the computer that protect information about the
owner or authorized user for the purposes of causing damage or harm to the
computer or owner or user.
(3)
Collecting personally identifiable information through the use of a keystroke
logging function.
(4)
Inducing the owner or authorized user to install a computer software component
onto the computer, or preventing reasonable efforts to block the installation
or execution of, or to disable, a computer software component by—
(A)
presenting the owner or authorized user with an option to decline installation
of a software component such that, when the option is selected by the owner or
authorized user, the installation nevertheless proceeds; or
(B)
causing a computer software component that the owner or authorized user has
properly removed or disabled to automatically reinstall or reactivate on the
computer.
(5)
Misrepresenting that installing a separate software component or providing
log-in and password information is necessary for security or privacy reasons,
or that installing a separate software component is necessary to open, view, or
play a particular type of content.
(6)
Inducing the owner or authorized user to install or execute computer software
by misrepresenting the identity or authority of the person or entity providing
the computer software to the owner or user.
(7)
Inducing the owner or authorized user to provide personally identifiable,
password, or account information to another person-
(A)
by misrepresenting the identity of the person seeking the information; or
(B)
without the authority of the intended recipient of the information.
(8)
Removing, disabling, or rendering inoperative a security, anti-spyware, or
anti-virus technology installed on the computer.
(9)
Installing or executing on the computer one or more additional computer
software components with the intent of causing a person to use such components
in a way that violates any other provision of this section.
(b)
Guidance- The Commission shall issue guidance regarding compliance with and
violations of this section. This subsection shall take effect upon the date of
the enactment of this Act.
(c)
Effective Date- Except as provided in subsection (b), this section shall take
effect upon the expiration of the 6-month period that begins on the date of the
enactment of this Act.
SEC. 3. PROHIBITION OF
COLLECTION OF CERTAIN INFORMATION WITHOUT NOTICE AND CONSENT.
(a)
Opt-In Requirement- Except as provided in subsection (e), it is unlawful for
any person--
(1)
to transmit to a protected computer, which is not owned by such person and for
which such person is not an authorized user, any information collection
program, unless--
(A)
such information collection program provides notice in accordance with subsection
(c) before execution of any of the information collection functions of the
program; and
(B)
such information collection program includes the functions required under
subsection (d); or
(2)
to execute any information collection program installed on such a protected
computer unless—
(A)
before execution of any of the information collection functions of the program,
the owner or an authorized user of the protected computer has consented to such
execution pursuant to notice in accordance with subsection (c); and
(B)
such information collection program includes the functions required under
subsection (d).
(b)
Information Collection Program- For purposes of this section, the term
`information collection program' means computer software that—
(1)(A)
collects personally identifiable information; and
(B)(i)
sends such information to a person other than the owner or authorized user of
the computer, or
(ii)
uses such information to deliver advertising to, or display advertising, on the
computer; or
(2)(A)
collects information regarding the Web pages accessed using the computer; and
(B)
uses such information to deliver advertising to, or display advertising on, the
computer.
(c)
Notice and Consent-
(1)
IN GENERAL- Notice in accordance with this subsection with respect to an
information collection program is clear and conspicuous notice in plain
language, set forth as the Commission shall provide, that meets all of the
following requirements:
(A)
The notice clearly distinguishes such notice from any other information
visually presented contemporaneously on the protected computer.
(B)
The notice contains one of the following statements, as applicable, or a
substantially similar statement:
(i)
With respect to an information collection program described in subsection
(b)(1): `This program will collect and transmit information about you. Do you
accept?'.
(ii) With respect to an information collection program
described in subsection (b)(2): `This program will collect information about
Web pages you access and will use that information to display advertising on
your computer. Do you accept?'.
(iii) With respect to an information collection program
that performs the actions described in both paragraphs (1) and (2) of
subsection (b): `This program will collect and transmit information about you
and your computer use and will collect information about Web pages you access
and use that information to display advertising on your computer. Do you
accept?'.
(C)
The notice provides for the user—
(i)
to grant or deny consent referred to in subsection (a) by selecting an option
to grant or deny such consent; and
(ii)
to abandon or cancel the transmission or execution referred to in subsection
(a) without granting or denying such consent.
(D)
The notice provides an option for the user to select to display on the
computer, before granting or denying consent using the option required under
subparagraph (C), a clear description of—
(i)
the types of information to be collected and sent (if any) by the information
collection program;
(ii)
the purpose for which such information is to be collected and sent; and
(iii) in the case of an information collection program
that first executes any of the information collection functions of the program
together with the first execution of other computer software, the identity of
any such software that is an information collection program.
(E) The notice provides for concurrent display of the
information required under subparagraphs (B) and (C) and the option required
under subparagraph (D) until the user-
(i)
grants or denies consent using the option required under subparagraph (C)(i);
(ii)
abandons or cancels the transmission or execution pursuant to subparagraph
(C)(ii); or
(ii)
selects the option required under subparagraph (D).
(2) SINGLE NOTICE- The Commission shall provide that,
in the case in which multiple information collection programs are provided to
the protected computer together, or as part of a suite of functionally-related
software, the notice requirements of paragraphs (1)(A) and (2)(A) of subsection
(a) may be met by providing, before execution of any of the information
collection functions of the programs, clear and conspicuous notice in plain
language in accordance with paragraph (1) of this subsection by means of a
single notice that applies to all such information collection programs, except
that such notice shall provide the option under subparagraph (D) of paragraph
(1) of this subsection with respect to each such information collection
program.
(3)
CHANGE IN INFORMATION COLLECTION- If an owner or authorized user has granted
consent to execution of an information collection program pursuant to a notice
in accordance with this subsection:
(A)
IN GENERAL- No subsequent such notice is required, except as provided in
subparagraph (B).
(B) SUBSEQUENT NOTICE- The person who transmitted the
program shall provide another notice in accordance with this subsection and
obtain consent before such program may be used to collect or send information
of a type or for a purpose that is materially different from, and outside the
scope of, the type or purpose set forth in the initial or any previous notice.
(4)
REGULATIONS- The Commission shall issue regulations to carry out this
subsection.
(d) Required Functions- The functions required under
this subsection to be included in an information collection program that
executes any information collection functions with respect to a protected
computer are as follows:
(1) DISABLING FUNCTION- With respect to any information
collection program, a function of the program that allows a user of the program
to remove the program or disable operation of the program with respect to such
protected computer by a function that--
(A)
is easily identifiable to a user of the computer; and
(B)
can be performed without undue effort or knowledge by the user of the protected
computer.
(2) IDENTITY FUNCTION- With respect only to an
information collection program that uses information collected in the manner
described in paragraph (1)(B)(ii) or (2)(B) of subsection (b), a function of
the program that provides that each display of an advertisement directed or
displayed using such information when the owner or authorized user is accessing
a Web page or online location other than of the provider of the software is
accompanied by the name of the information collection program, a logogram or
trademark used for the exclusive purpose of identifying the program, or a
statement or other information sufficient to clearly identify the program.
(3)
RULEMAKING- The Commission may issue regulations to carry out this subsection.
(e)
Limitation on Liability- A telecommunications carrier, a provider of
information service or interactive computer service, a cable operator, or a
provider of transmission capability shall not be liable under this section to
the extent that the carrier, operator, or provider—
(1)
transmits, routes, hosts, stores, or provides connections for an information
collection program through a system or network controlled or operated by or for
the carrier, operator, or provider; or
(2) provides an information location tool, such as a
directory, index, reference, pointer, or hypertext link, through which the
owner or user of a protected computer locates an information collection
program.
SEC. 4. ENFORCEMENT.
(a) Unfair or Deceptive Act or Practice- This Act shall
be enforced by the Commission under the Federal Trade Commission Act (15 U.S.C.
41 et seq.). A violation of any provision of this Act or of a regulation issued
under this Act committed with actual knowledge or knowledge fairly implied on
the basis of objective circumstances that such act is unfair or deceptive or
violates this Act shall be treated as an unfair or deceptive act or practice
violating a rule promulgated under section 18 of the Federal Trade Commission
Act (15 U.S.C. 57a).
(b)
Penalty for Pattern or Practice Violations-
(1) IN GENERAL- Notwithstanding subsection (a) and the
Federal Trade Commission Act, in the case of a person who engages in a pattern
or practice that violates section 2 or 3, the Commission may, in its
discretion, seek a civil penalty for such pattern or practice of violations in
an amount, as determined by the Commission, of not more than--
(A)
$3,000,000 for each violation of section 2; and
(B)
$1,000,000 for each violation of section 3.
(2)
TREATMENT OF SINGLE ACTION OR CONDUCT- In applying paragraph (1)—
(A)
any single action or conduct that violates section 2 or 3 with respect to
multiple protected computers shall be treated as a single violation; and
(B)
any single action or conduct that violates more than one paragraph of section
2(a) shall be considered multiple violations, based on the number of such
paragraphs violated.
(c) Exclusiveness of Remedies- The remedies in this
section (including remedies available to the Commission under the Federal Trade
Commission Act) are the exclusive remedies for violations of this Act.
(d) Effective Date- This section shall take effect on
the date of the enactment of this Act, but only to the extent that this section
applies to violations of section 2(a).
SEC. 5. LIMITATIONS.
(a)
Law Enforcement Authority- Sections 2 and 3 of this Act shall not apply to--
(1)
any act taken by a law enforcement agent in the performance of official duties;
or
(2) the transmission or execution of an information
collection program in compliance with a law enforcement, investigatory,
national security, or regulatory agency or department of the United States or
any State in response to a request or demand made under authority granted to
that agency or department, including a warrant issued under the Federal Rules
of Criminal Procedure, an equivalent State warrant, a court order, or other
lawful process.
(b)
Exception Relating to Security- Nothing in this Act shall apply to—
(1) any monitoring of, or interaction with, a
subscriber's Internet or other network connection or service, or a protected
computer, by a telecommunications carrier, cable operator, computer hardware or
software provider, or provider of information service or interactive computer
service, to the extent that such monitoring or interaction is for network or
computer security purposes, diagnostics, technical support, or repair, or for
the detection or prevention of fraudulent activities; or
(2) a discrete interaction with a protected computer by
a provider of computer software solely to determine whether the user of the
computer is authorized to use such software, that occurs upon—
(A)
initialization of the software; or
(B)
an affirmative request by the owner or authorized user for an update of,
addition to, or technical service for, the software.
(c) Good Samaritan Protection- No provider of computer
software or of interactive computer service may be held liable under this Act
on account of any action voluntarily taken, or service provided, in good faith
to remove or disable a program used to violate section 2 or 3 that is installed
on a computer of a customer of such provider, if such provider notifies the
customer and obtains the consent of the customer before undertaking such action
or providing such service.
(d) Limitation on Liability- A manufacturer or retailer
of computer equipment shall not be liable under this Act to the extent that the
manufacturer or retailer is providing third party branded software that is
installed on the equipment the manufacturer or retailer is manufacturing or
selling.
SEC. 6. EFFECT ON OTHER
LAWS.
(a)
Preemption of State Law-
(1)
PREEMPTION OF SPYWARE LAWS- This Act supersedes any provision of a statute,
regulation, or rule of a State or political subdivision of a State that
expressly regulates--
(A)
deceptive conduct with respect to computers similar to that described in
section 2(a);
(B)
the transmission or execution of a computer program similar to that described
in section 3; or
(C)
the use of computer software that displays advertising content based on the Web
pages accessed using a computer.
(2)
ADDITIONAL PREEMPTION-
(A)
IN GENERAL- No person other than the Attorney General of a State may bring a
civil action under the law of any State if such action is premised in whole or
in part upon the defendant violating any provision of this Act.
(B)
PROTECTION OF CONSUMER PROTECTION LAWS- This paragraph shall not be construed
to limit the enforcement of any State consumer protection law by an Attorney
General of a State.
(3)
PROTECTION OF CERTAIN STATE LAWS- This Act shall not be construed to preempt
the applicability of—
(A)
State trespass, contract, or tort law; or
(B)
other State laws to the extent that those laws relate to acts of fraud.
(b) Preservation of FTC Authority- Nothing in this Act
may be construed in any way to limit or affect the Commission's authority under
any other provision of law, including the authority to issue advisory opinions
(under Part 1 of Volume 16 of the Code of Federal Regulations), policy
statements, or guidance regarding this Act.
SEC. 7. ANNUAL FTC REPORT.
For
the 12-month period that begins upon the effective date under section 11(a) and
for each 12-month period thereafter, the Commission shall submit a report to
the Congress that—
(1) specifies the number and types of actions taken
during such period to enforce sections 2(a) and 3, the disposition of each such
action, any penalties levied in connection with such actions, and any penalties
collected in connection with such actions; and
(2) describes the administrative structure and
personnel and other resources committed by the Commission for enforcement of
this Act during such period.
Each report under this subsection for a 12-month period
shall be submitted not later than 90 days after the expiration of such period.
SEC. 8. FTC REPORT ON
COOKIES.
(a) In General- Not later than the expiration of the
6-month period that begins on the date of the enactment of this Act, the
Commission shall submit a report to the Congress regarding the use of tracking
cookies in the delivery or display of advertising to the owners and users of
computers. The report shall examine and describe the methods by which such
tracking cookies and the websites that place them on computers function
separately and together, and the extent to which they are covered or affected
by this Act. The report may include such recommendations as the Commission
considers necessary and appropriate, including treatment of tracking cookies
under this Act or other laws.
(b) Definition- For purposes of this section, the term
`tracking cookie' means a cookie or similar text or data file used alone or in
conjunction with one or more websites to transmit or convey personally
identifiable information of a computer owner or user, or information regarding
Web pages accessed by the owner or user, to a party other than the intended
recipient, for the purpose of—
(1)
delivering or displaying advertising to the owner or user; or
(2)
assisting the intended recipient to deliver or display advertising to the
owner, user, or others.
(c)
Effective Date- This section shall take effect on the date of the enactment of
this Act.
SEC. 9. REGULATIONS.
(a) In General- The Commission shall issue the
regulations required by this Act not later than the expiration of the 6-month
period beginning on the date of the enactment of this Act. Any regulations
issued pursuant to this Act shall be issued in accordance with section 553 of
title 5, United States Code.
(b)
Effective Date- This section shall take effect on the date of the enactment of
this Act.
SEC. 10. DEFINITIONS.
For
purposes of this Act:
(1) CABLE OPERATOR- The term `cable operator' has the
meaning given such term in section 602 of the Communications Act of 1934 (47
U.S.C. 522).
(2) COLLECT- The term `collect', when used with respect
to information and for purposes only of section 3, does not include obtaining
of the information by a party who is intended by the owner or authorized user
of a protected computer to receive the information pursuant to the owner or
authorized user—
(A)
transferring the information to such intended recipient using the protected
computer; or
(B)
storing the information on the protected computer in a manner so that it is
accessible by such intended recipient.
(3)
COMPUTER; PROTECTED COMPUTER- The terms `computer' and `protected computer'
have the meanings given such terms in section 1030(e) of title 18, United
States Code.
(4)
COMPUTER SOFTWARE-
(A) IN GENERAL- Except as provided in subparagraph (B),
the term `computer software' means a set of statements or instructions that can
be installed and executed on a computer for the purpose of bringing about a
certain result.
(B)
EXCEPTION FOR COOKIES- Such term does not include—
(i) a cookie or other text or data file that is placed
on the computer system of a user by an Internet service provider, interactive
computer service, or Internet website to return information to such provider,
service, or website; or
(ii) computer software that is placed on the computer
system of a user by an Internet service provider, interactive computer service,
or Internet website solely to enable the user subsequently to use such provider
or service or to access such website.
(5)
COMMISSION- The term `Commission' means the Federal Trade Commission.
(6)
DAMAGE- The term `damage' has the meaning given such term in section 1030(e) of
title 18, United States Code.
(7) DECEPTIVE ACTS OR PRACTICES- The term `deceptive
acts or practices' has the meaning applicable to such term for purposes of
section 5 of the Federal Trade Commission Act (15 U.S.C. 45).
(8) DISABLE- The term `disable' means, with respect to
an information collection program, to permanently prevent such program from
executing any of the functions described in section 3(b) that such program is
otherwise capable of executing (including by removing, deleting, or disabling
the program), unless the owner or operator of a protected computer takes a
subsequent affirmative action to enable the execution of such functions.
(9) INFORMATION COLLECTION FUNCTIONS- The term
`information collection functions' means, with respect to an information
collection program, the functions of the program described in subsection (b) of
section 3.
(10) INFORMATION SERVICE- The term `information
service' has the meaning given such term in section 3 of the Communications Act
of 1934 (47 U.S.C. 153).
(11)
INTERACTIVE COMPUTER SERVICE- The term `interactive computer service' has the
meaning given such term in section 230(f) of the Communications Act of 1934 (47
U.S.C. 230(f)).
(12) INTERNET- The term `Internet' means collectively
the myriad of computer and telecommunications facilities, including equipment
and operating software, which comprise the interconnected world-wide network of
networks that employ the Transmission Control Protocol/Internet Protocol, or
any predecessor or successor protocols to such protocol, to communicate
information of all kinds by wire or radio.
(13)
PERSONALLY IDENTIFIABLE INFORMATION-
(A) IN GENERAL- The term `personally identifiable
information' means the following information, to the extent only that such
information allows a living individual to be identified from that information:
(i)
First and last name of an individual.
(ii) A home or other physical address of an individual,
including street name, name of a city or town, and zip code.
(iii)
An electronic mail address.
(iv)
A telephone number.
(v) A social security number, tax identification
number, passport number, driver's license number, or any other
government-issued identification number.
(vi)
A credit card number.
(vii) Any access code, password, or account number,
other than an access code or password transmitted by an owner or authorized
user of a protected computer to the intended recipient to register for, or log
onto, a Web page or other Internet service or a network connection or service
of a subscriber that is protected by an access code or password.
(viii) Date of birth, birth certificate number, or
place of birth of an individual, except in the case of a date of birth
transmitted or collected for the purpose of compliance with the law.
(B) RULEMAKING- The Commission may, by regulation, add
to the types of information specified under paragraph (1) that shall be
considered personally identifiable information for purposes of this Act, except
that such information may not include any record of aggregate data that does
not identify particular persons, particular computers, particular users of
computers, or particular email addresses or other locations of computers with
respect to the Internet
(14) SUITE OF FUNCTIONALLY RELATED SOFTWARE- The term
`suite of functionally related software' means a group of computer software
programs distributed to an end user by a single provider, which programs are
necessary to enable features or functionalities of an integrated service
offered by the provider.
(15) TELECOMMUNICATIONS CARRIER- The term
`telecommunications carrier' has the meaning given such term in section 3 of
the Communications Act of 1934 (47 U.S.C. 153).
(16)
TRANSMIT- The term `transmit' means, with respect to an information collection
program, transmission by any means.
(17) WEB PAGE- The term `Web page' means a location,
with respect to the World Wide Web, that has a single Uniform Resource Locator
or another single location with respect to the Internet, as the Federal Trade
Commission may prescribe.
SEC. 11. APPLICABILITY AND
SUNSET.
(a) Effective Date- Except as specifically provided
otherwise in this Act, this Act shall take effect upon the expiration of the
12-month period that begins on the date of the enactment of this Act.
(b) Applicability- Section 3 shall not apply to an
information collection program installed on a protected computer before the
effective date under subsection (a) of this section.
(c)
Sunset- This Act shall not apply after December 31, 2010.