IB Union Calendar No. 15 109th CONGRESS 1st Session H. R. 29 [Report No. 109–32] 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 April 12, 2005 Additional sponsors: Mr. Upton, Mr. Gene Green of Texas, Mr. Baker, Ms. Jackson-Lee of Texas, Mr. Butterfield, Mr. Gordon, Ms. Schakowsky, Mr. Wamp, Mr. Hayworth, Mr. Sullivan, Mr. Calvert, Mr. Ehlers, Mr. Putnam, Mr. Markey, Mr. Israel, Mr. Gonzalez, Ms. Solis, Ms. Watson, Mr. Engel, Mr. Wynn, Mr. Abercrombie, Mr. Doolittle, Ms. Eshoo, Mrs. Davis of California, Mr. Stupak, Mr. Rush, Mr. Ryan of Ohio, Mr. Lincoln Diaz-Balart of Florida, Mr. Boucher, Mr. Bass, Mr. Sam Johnson of Texas, Mr. Lewis of Georgia, Mr. Duncan, Mr. Bachus, Mr. Inslee, Mr. Shaw, Mr. Dingell, Mr. Doyle, Mrs. Myrick, Mr. Murphy, Mrs. Blackburn, Mr. Ross, Mr. Rothman, Mr. Shadegg, Mr. Edwards, Mr. Moore of Kansas, and Mr. McCaul of Texas April 12, 2005 Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed Strike out all after the enacting clause and insert the part printed in italic For text of introduced bill, see copy of bill as introduced on January 4, 2005 A BILL To protect users of the Internet from unknowing transmission of their personally identifiable information through spyware programs, and for other purposes.

1.

Short title

This Act may be cited as the Securely Protect Yourself Against Cyber Trespass Act or the Spy Act.

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 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 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.

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.

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.

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.

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.

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 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.

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 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.

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. 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.

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(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 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 such characteristics in relation to each other as the Commission may prescribe, which may include— (A)a common domain name; (B)a common theme or topic; (C)common ownership, management, or registration; and (D)relationship to a common intended beginning file or home page or other means of accessing or linking the pages together.

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.

April 12, 2005 Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed