[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2929 Received in Senate (RDS)]

  2d Session
                                H. R. 2929


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 6, 2004

                                Received

_______________________________________________________________________

                                 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 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, 2009.

            Passed the House of Representatives October 5, 2004.

            Attest:

                                                 JEFF TRANDAHL,

                                                                 Clerk.