IIB 111th CONGRESS 1st Session H. R. 1319 IN THE SENATE OF THE UNITED STATES December 9, 2009 Received; read twice and referred to the Committee on Commerce, Science, and Transportation AN ACT To prevent the inadvertent disclosure of information on a computer through certain peer-to-peer file sharing programs without first providing notice and obtaining consent from an owner or authorized user of the computer.

1.

Short title

This Act may be cited as the Informed P2P User Act.

2.

Conduct prohibited

(a)

Notice and Consent required for file-sharing software

(1)

Notice and consent required prior to installation

It is unlawful for any covered entity to install on a protected computer or offer or make available for installation or download on a protected computer a covered file-sharing program unless such program— (A)immediately prior to the installation or downloading of such program— (i)provides clear and conspicuous notice that such program allows files on the protected computer to be made available for searching by and copying to one or more other computers; and (ii)obtains the informed consent to the installation of such program from an owner or authorized user of the protected computer; and (B)immediately prior to initial activation of a file-sharing function of such program— (i)provides clear and conspicuous notice of which files on the protected computer are to be made available for searching by and copying to another computer; and (ii)obtains the informed consent from an owner or authorized user of the protected computer for such files to be made available for searching and copying to another computer. (2)

Non-application to pre-installed software

Nothing in paragraph (1)(A) shall apply to the installation of a covered file-sharing program on a computer prior to the first sale of such computer to an end user, provided that notice is provided to the end user who first purchases the computer that such a program has been installed on the computer. (3)

Non-application to software upgrades

Once the notice and consent requirements of paragraphs (1)(A) and (1)(B) have been satisfied with respect to the installation or initial activation of a covered file-sharing program on a protected computer after the effective date of this Act, the notice and consent requirements of paragraphs (1)(A) and (1)(B) do not apply to the installation or initial activation of software modifications or upgrades to a covered file-sharing program installed on that protected computer at the time of the software modifications or upgrades so long as those software modifications or upgrades do not— (A)make files on the protected computer available for searching by and copying to one or more other computers that were not already made available by the covered file-sharing program for searching by and copying to one or more other computers; or (B)add to the types or locations of files that can be made available by the covered file-sharing program for searching by and copying to one or more other computers. (b)

Preventing the Disabling or Removal of Certain Software

It is unlawful for any covered entity— (1)to prevent the reasonable efforts of an owner or authorized user of a protected computer from blocking the installation of a covered file-sharing program or file-sharing function thereof; or (2)to prevent an owner or authorized user of a protected computer from having a reasonable means to either— (A)disable from the protected computer any covered file-sharing program; or (B)remove from the protected computer any covered file-sharing program that the covered entity caused to be installed on that computer or induced another individual to install.

3.

Enforcement

(a)

Unfair and Deceptive Acts and Practices

A violation of section 2 shall be treated as a violation of a rule defining an unfair or deceptive act or practice prescribed under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)). (b)

Federal Trade Commission Enforcement

The Federal Trade Commission shall enforce this Act in the same manner, by the same means, and with the same jurisdiction as though all applicable terms and provisions of the Federal Trade Commission Act were incorporated into and made a part of this Act. (c)

Preservation of Federal and State Authority

Nothing in this Act shall be construed to limit or supersede any other Federal or State law.

4.

Definitions

As used in this Act— (1)the term commercial entity means an entity engaged in acts or practices in or affecting commerce, as such term is defined in section 4 of the Federal Trade Commission Act (15 U.S.C. 44); (2)the term covered entity means— (A)a commercial entity that develops a covered file-sharing program; and (B)a commercial entity that disseminates or distributes a covered file-sharing program and is owned or operated by the commercial entity that developed the covered file-sharing program; (3)the term protected computer has the meaning given such term in section 1030(e)(2) of title 18, United States Code; and (4)the term covered file-sharing program— (A)means a program, application, or software that is commercially marketed or distributed to the public and that enables— (i)a file or files on the protected computer on which such program is installed to be designated as available for searching by and copying to one or more other computers owned by another person; (ii)the searching of files on the protected computer on which such program is installed and the copying of any such file to a computer owned by another person— (I)at the initiative of such other computer and without requiring any action by an owner or authorized user of the protected computer on which such program is installed; and (II)without requiring an owner or authorized user of the protected computer on which such program is installed to have selected or designated a computer owned by another person as the recipient of any such file; and (iii)the protected computer on which such program is installed to search files on one or more other computers owned by another person using the same or a compatible program, application, or software, and to copy files from the other computer to such protected computer; and (B)does not include a program, application, or software designed primarily to— (i)operate as a server that is accessible over the Internet using the Internet Domain Name system; (ii)transmit or receive email messages, instant messaging, real-time audio or video communications, or real-time voice communications; or (iii)provide network or computer security, network management, hosting and backup services, maintenance, diagnostics, technical support or repair, or to detect or prevent fraudulent activities; and (5)the term initial activation of a file-sharing function means— (A)the first time the file sharing function of a covered file-sharing program is activated on a protected computer; and (B)does not include subsequent uses of the program on that protected computer.

5.

Rulemaking

The Federal Trade Commission may promulgate regulations under section 553 of title 5, United States Code to accomplish the purposes of this Act. In promulgating rules under this Act, the Federal Trade Commission shall not require the deployment or use of any specific products or technologies.

6.

Nonapplication to government

The prohibition in section 2 of this Act shall not apply to the Federal Government or any instrumentality of the Federal Government, nor to any State government or government of a subdivision of a State.

Passed the House of Representatives December 8, 2009. Lorraine C. Miller, Clerk.