[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 29 Referred in Senate (RFS)]
1st Session
H. R. 29
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 24, 2005
Received; read twice and referred to the Committee on Commerce,
Science, and Transportation
_______________________________________________________________________
AN ACT
To protect users of the Internet from unknowing transmission of their
personally identifiable information through spyware programs, and for
other purposes.
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 [UNFAIR OR] 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 unfair
or 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 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, hijacking, or otherwise 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 or a third party
defrauded by such conduct to incur charges or other
costs for a service that is not authorized by such
owner or authorized user;
(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 undue effort or knowledge
by the user or 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 of the computer
to disclose personally identifiable information by means of a
Web page that--
(A) is substantially similar to a Web page
established or provided by another person; and
(B) misleads the owner or authorized user that such
Web page is provided by such other person.
(5) Inducing the owner or authorized user to install a
component of computer software onto the computer, or preventing
reasonable efforts to block the installation or execution of,
or to disable, a component of computer software by--
(A) presenting the owner or authorized user with an
option to decline installation of such a component such
that, when the option is selected by the owner or
authorized user or when the owner or authorized user
reasonably attempts to decline the installation, the
installation nevertheless proceeds; or
(B) causing such a component that the owner or
authorized user has properly removed or disabled to
automatically reinstall or reactivate on the computer.
(6) Misrepresenting that installing a separate component of
computer software or providing log-in and password information
is necessary for security or privacy reasons, or that
installing a separate component of computer software is
necessary to open, view, or play a particular type of content.
(7) 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.
(8) 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.
(9) Removing, disabling, or rendering inoperative a
security, anti-spyware, or anti-virus technology installed on
the computer.
(10) Installing or executing on the computer one or more
additional components of computer software 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.--
(1) In general.--For purposes of this section, the term
``information collection program'' means computer software that
performs either of the following functions:
(A) Collection of personally identifiable
information.--The computer software--
(i) collects personally identifiable
information; and
(ii)(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.
(B) Collection of information regarding web pages
visited to deliver advertising.--The computer
software--
(i) collects information regarding the Web
pages accessed using the computer; and
(ii) uses such information to deliver
advertising to, or display advertising on, the
computer.
(2) Exception for software collecting information regarding
web pages visited within a particular web site.--Computer
software that otherwise would be considered an information
collection program by reason of paragraph (1)(B) shall not be
considered such a program if--
(A) the only information collected by the software
regarding Web pages that are accessed using the
computer is information regarding Web pages within a
particular Web site;
(B) such information collected is not sent to a
person other than--
(i) the provider of the Web site accessed;
or
(ii) a party authorized to facilitate the
display or functionality of Web pages within
the Web site accessed; and
(C) the only advertising delivered to or displayed
on the computer using such information is advertising
on Web pages within that particular Web site.
(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 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)(A): ``This program will collect and
transmit information about you. Do you
accept?''.
(ii) With respect to an information
collection program described in subsection
(b)(1)(B): ``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 subparagraphs (A) and (B) of
subsection (b)(1): ``This program will collect
and transmit information about you 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
(iii) 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.--
(A) In general.--With respect only to an
information collection program that uses information
collected in the manner described in subparagraph
(A)(ii)(II) or (B)(ii) of subsection (b)(1) and subject
to subparagraph (B) of this paragraph, 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 computer 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.
(B) Exemption for embedded advertisements.--The
Commission shall, by regulation, exempt from the
applicability of subparagraph (A) the embedded display
of any advertisement on a Web page that
contemporaneously displays other information.
(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 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) Required Scienter.--Civil penalties sought under this section
for any action may not be granted by the Commission or any court unless
the Commission or court, respectively, establishes that the action was
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.
(d) Factors in Amount of Penalty.--In determining the amount of any
penalty pursuant to subsection (a) or (b), the court shall take into
account the degree of culpability, any history of prior such conduct,
ability to pay, effect on ability to continue to do business, and such
other matters as justice may require.
(e) 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.
(f) Effective Date.--To the extent only that this section applies
to violations of section 2(a), 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. 5. LIMITATIONS.
(a) Law Enforcement Authority.--Sections 2 and 3 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
computer 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) unfair or 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 12(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 section 2(a) and section 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
cookies, including 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 cookies and the Web sites
that place them on computers function separately and together, and
shall compare the use of cookies with the use of information collection
programs (as such term is defined in section 3) to determine the extent
to which such uses are similar or different. The report may include
such recommendations as the Commission considers necessary and
appropriate, including treatment of 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 Web sites to transmit or convey, to a
party other than the intended recipient, personally identifiable
information of a computer owner or user, information regarding Web
pages accessed by the owner or user, or information regarding
advertisements previously delivered to a computer, 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. FTC REPORT ON INFORMATION COLLECTION PROGRAMS INSTALLED BEFORE
EFFECTIVE DATE.
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 on the extent to which there are installed on
protected computers information collection programs that, but for
installation prior to the effective date under section 12(a), would be
subject to the requirements of section 3. The report shall include
recommendations regarding the means of affording computer users
affected by such information collection programs the protections of
section 3, including recommendations regarding requiring a one-time
notice and consent by the owner or authorized user of a computer to the
continued collection of information by such a program so installed on
the computer.
SEC. 10. 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. In
exercising its authority to issue any regulation under this Act, the
Commission shall determine that the regulation is consistent with the
public interest and the purposes 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. 11. 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(b)(1)(A),
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 or by a third party
authorized by such intended recipient 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.--Such term does not include computer
software that is placed on the computer system of a
user by an Internet service provider, interactive
computer service, or Internet Web site solely to enable
the user subsequently to use such provider or service
or to access such Web site.
(C) Rule of construction regarding cookies.--This
paragraph may not be construed to include, as computer
software--
(i) a cookie; or
(ii) any other type of text or data file
that solely may be read or transferred by a
computer.
(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)(1) 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)(1) 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 described in
subparagraph (A) that shall be considered personally
identifiable information for purposes of this Act,
except that such additional types of information shall
be considered personally identifiable information only
to the extent that such information allows living
individuals, particular computers, particular users of
computers, or particular email addresses or other
locations of computers to be identified from that
information.
(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.
(18) Web site.--The term ``web site'' means a collection of
Web pages that are presented and made available by means of the
World Wide Web as a single Web site (or a single Web page so
presented and made available), which Web pages have any of the
following characteristics:
(A) A common domain name.
(B) Common ownership, management, or registration.
SEC. 12. 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, 2011.
Passed the House of Representatives May 23, 2005.
Attest:
JEFF TRANDAHL,
Clerk.