PRINTER'S NO. 858
No. 711 Session of 2005
INTRODUCED BY GORDNER, WONDERLING, C. WILLIAMS, RAFFERTY, COSTA, CORMAN, WOZNIAK, PIPPY, PICCOLA, VANCE, LOGAN, ERICKSON, WAUGH, RHOADES, BOSCOLA, TARTAGLIONE, KITCHEN, THOMPSON, O'PAKE, GREENLEAF AND STACK, JUNE 3, 2005
REFERRED TO COMMUNICATIONS AND TECHNOLOGY, JUNE 3, 2005
AN ACT 1 Providing for the protection of consumers from having spyware 2 deceptively installed on their computers, for enforcement and 3 for civil relief. 4 TABLE OF CONTENTS 5 Section 1. Short title. 6 Section 2. Definitions. 7 Section 3. Computer spyware prohibitions. 8 Section 4. Control or modification. 9 Section 5. Misrepresentation and deception. 10 Section 6. Nonapplicability. 11 Section 7. Enforcement. 12 Section 8. Civil relief. 13 Section 9. Effective date. 14 The General Assembly of the Commonwealth of Pennsylvania 15 hereby enacts as follows: 16 Section 1. Short title. 17 This act shall be known and may be cited as the Consumer
1 Protection Against Computer Spyware Act. 2 Section 2. Definitions. 3 The following words and phrases when used in this act shall 4 have the meanings given to them in this section unless the 5 context clearly indicates otherwise: 6 "Advertisement." A communication, the primary purpose of 7 which is the commercial promotion of a commercial product or 8 service, including content on an Internet website operated for a 9 commercial purpose. 10 "Authorized user." With respect to a computer, a person who 11 owns or is authorized by the owner or lessee to use the 12 computer. 13 "Cause to be copied." To distribute or transfer computer 14 software or any component thereof. The term shall not include 15 the following: 16 (1) Transmission, routing, provision of intermediate 17 temporary storage or caching of software. 18 (2) A storage or hosting medium, such as a compact disc, 19 Internet website or computer server, through which the 20 software was distributed by a third party. 21 (3) An information location tool, such as a directory, 22 index, reference, pointer or hypertext link, through which 23 the user of the computer located the software. 24 "Communications provider." Entity providing communications 25 networks or services that enable consumers to access the 26 Internet or destinations on the public switched telephone 27 network via a computer modem. This term shall include cable 28 service providers that also provide telephone services and 29 providers of Voice over Internet Protocol services. 30 "Computer software." A sequence of instructions written in 20050S0711B0858 - 2 -
1 any programming language that is executed on a computer. The 2 term shall not include a text or data file, an Internet website 3 or a data component of an Internet website that is not 4 executable independently of the Internet website. 5 "Computer virus." A computer program or other set of 6 instructions that is designed to degrade the performance of or 7 disable a computer or computer network and is designed to have 8 the ability to replicate itself on other computers or computer 9 networks without the authorization of the owners of those 10 computers or computer networks. 11 "Damage." Any significant impairment to the integrity, 12 functionality or availability of data, software, a computer, a 13 system or information. 14 "Execute." With respect to computer software, the 15 performance of the functions or the carrying out of the 16 instructions of the computer software. 17 "Intentionally deceptive." Includes, but is not limited to: 18 (1) An intentionally and materially false or fraudulent 19 statement. 20 (2) A statement or description that intentionally omits 21 or misrepresents material information in order to deceive the 22 authorized user. 23 (3) An intentional and material failure to provide any 24 notice to an authorized user regarding the download or 25 installation of software in order to deceive the authorized 26 user. 27 "Internet." The global information system that is logically 28 linked together by a globally unique address space based on the 29 Internet Protocol (IP), or its subsequent extensions, and that 30 is able to support communications using the Transmission Control 20050S0711B0858 - 3 -
1 Protocol/Internet Protocol (TCP/IP) suite, or its subsequent 2 extensions, or other IP-compatible protocols, and that provides, 3 uses or makes accessible, either publicly or privately, high- 4 level services layered on the communications and related 5 infrastructure described in this act. 6 "Person." Any individual, partnership, corporation, limited 7 liability company or other organization, or any combination 8 thereof. 9 "Personally identifiable information." The term shall 10 include any of the following: 11 (1) First name or first initial in combination with last 12 name. 13 (2) Credit or debit card numbers or other financial 14 account numbers. 15 (3) A password or personal identification number 16 required to access an identified financial account other than 17 a password, personal identification number or other 18 identification number transmitted by an authorized user to 19 the issuer of the account or its agent. 20 (4) Social Security number. 21 (5) Any of the following information in a form that 22 personally identifies an authorized user: 23 (i) Account balances. 24 (ii) Overdraft history. 25 (iii) Payment history. 26 (iv) A history of Internet websites visited. 27 (v) Home address. 28 (vi) Work address. 29 (vii) A record of a purchase or purchases. 30 Section 3. Computer spyware prohibitions. 20050S0711B0858 - 4 -
1 A person or entity that is not an authorized user shall not, 2 with actual knowledge, with conscious avoidance of actual 3 knowledge, or willfully, cause computer software to be copied 4 onto the computer of an authorized user in this Commonwealth and 5 use the software to do any of the following: 6 (1) Modify through intentionally deceptive means any of 7 the following settings related to the computer's access to or 8 use of the Internet: 9 (i) The page that appears when an authorized user 10 launches an Internet browser or similar software program 11 used to access and navigate the Internet. 12 (ii) The default provider or Internet website proxy 13 the authorized user uses to access or search the 14 Internet. 15 (iii) The authorized user's list of bookmarks used 16 to access Internet website pages. 17 (2) Collect through intentionally deceptive means 18 personally identifiable information that meets any of the 19 following criteria: 20 (i) It is collected through the use of a keystroke- 21 logging function that records all keystrokes made by an 22 authorized user who uses the computer and transfers that 23 information from the computer to another person. 24 (ii) It includes all or substantially all of the 25 Internet websites visited by an authorized user, other 26 than Internet websites of the provider of the software, 27 if the computer software was installed in a manner 28 designed to conceal from all authorized users of the 29 computer the fact that the software is being installed. 30 (iii) It is a data element described in paragraph 20050S0711B0858 - 5 -
1 (2), (3), (4) or (5)(i) or (ii) of the definition of 2 "personally identifiable information" that is extracted 3 from the authorized user's computer hard drive for a 4 purpose wholly unrelated to any of the purposes of the 5 software or service described to an authorized user. 6 (3) Prevent, without the authorization of an authorized 7 user, through intentionally deceptive means an authorized 8 user's reasonable efforts to block the installation of or to 9 disable software by causing software that the authorized user 10 has properly removed or disabled to automatically reinstall 11 or reactivate on the computer without the authorization of an 12 authorized user. 13 (4) Intentionally misrepresent that software will be 14 uninstalled or disabled by an authorized user's action with 15 knowledge that the software will not be so uninstalled or 16 disabled. 17 (5) Through intentionally deceptive means, remove, 18 disable or render inoperative security, antispyware or 19 antivirus software installed on the computer. 20 Section 4. Control or modification. 21 A person or entity that is not an authorized user shall not, 22 with actual knowledge, with conscious avoidance of actual 23 knowledge, or willfully, cause computer software to be copied 24 onto the computer of an authorized user in this Commonwealth and 25 use the software to do any of the following: 26 (1) Take control of the authorized user's computer by 27 doing any of the following: 28 (i) Transmitting or relaying commercial electronic 29 mail or a computer virus from the authorized user's 30 computer, where the transmission or relaying is initiated 20050S0711B0858 - 6 -
1 by a person other than the authorized user and without 2 the authorization of an authorized user. 3 (ii) Accessing or using the authorized user's modem 4 or Internet service for the purpose of causing damage to 5 the authorized user's computer or of causing an 6 authorized user to incur financial charges for a service 7 that is not authorized by an authorized user. 8 (iii) Using the authorized user's computer as part 9 of an activity performed by a group of computers for the 10 purpose of causing damage to another computer, including, 11 but not limited to, launching a denial of service attack. 12 (iv) Opening a series of stand-alone advertisements 13 in the authorized user's computer without the 14 authorization of an authorized user and with knowledge 15 that a reasonable computer user cannot close the 16 advertisements without turning off the computer or 17 closing the Internet application. 18 (2) Modify any of the following settings related to the 19 computer's access to or use of the Internet: 20 (i) An authorized user's security or other settings 21 that protect information about the authorized user for 22 the purpose of stealing personal information of an 23 authorized user. 24 (ii) The security settings of the computer for the 25 purpose of causing damage to one or more computers. 26 (3) Prevent, without the authorization of an authorized 27 user, an authorized user's reasonable efforts to block the 28 installation of or to disable software by doing any of the 29 following: 30 (i) Presenting the authorized user with an option to 20050S0711B0858 - 7 -
1 decline installation of software with knowledge that, 2 when the option is selected by the authorized user, the 3 installation nevertheless proceeds. 4 (ii) Falsely representing that software has been 5 disabled. 6 (iii) Requiring in an intentionally deceptive manner 7 the user to access the Internet to remove the software 8 with knowledge or reckless disregard of the fact that the 9 software frequently operates in a manner that prevents 10 the user from accessing the Internet. 11 (iv) Changing the name, location or other 12 designation information of the software for the purpose 13 of preventing an authorized user from locating the 14 software to remove it. 15 (v) Using randomized or intentionally deceptive file 16 names, directory folders, formats or registry entries for 17 the purpose of avoiding detection and removal of the 18 software by an authorized user. 19 (vi) Causing the installation of software in a 20 particular computer directory or computer memory for the 21 purpose of evading authorized users' attempts to remove 22 the software from the computer. 23 (vii) Requiring, without the authority of the owner 24 of the computer, that an authorized user obtain a special 25 code or download software from a third party to uninstall 26 the software. 27 Section 5. Misrepresentation and deception. 28 A person or entity who is not an authorized user shall not do 29 any of the following with regard to the computer of an 30 authorized user in this Commonwealth: 20050S0711B0858 - 8 -
1 (1) Induce an authorized user to install a software 2 component onto the computer by intentionally misrepresenting 3 that installing software is necessary for security or privacy 4 reasons or in order to open, view or play a particular type 5 of content. 6 (2) Deceptively causing the copying and execution on the 7 computer of a computer software component with the intent of 8 causing an authorized user to use the component in a way that 9 violates any other provision of this section. 10 Section 6. Nonapplicability. 11 Nothing in section 4 or 5 shall apply to any monitoring of or 12 interaction with a user's Internet or other network connection 13 or service, or a protected computer, by a cable operator, 14 computer hardware or software provider or provider of 15 information service or interactive computer service for network 16 or computer security purposes, diagnostics, technical support, 17 repair, authorized updates of software or system firmware, 18 network management or maintenance, authorized remote system 19 management or detection or prevention of the unauthorized use of 20 or fraudulent or other illegal activities in connection with a 21 network, service or computer software, including scanning for 22 and removing software proscribed under this act. 23 Section 7. Enforcement. 24 Any person that violates the provisions of sections 3(2) and 25 4(1)(i), (ii) and (iii) and (2)(i) and (ii) shall be guilty of a 26 felony and, upon conviction thereof, shall be sentenced to 27 imprisonment for not less than one nor more than ten years or a 28 fine of not more than $3,000,000, or both. 29 Section 8. Civil relief. 30 (a) General rule.--The following persons may bring a civil 20050S0711B0858 - 9 -
1 action against a person who violates this act: 2 (1) A provider of computer software who is adversely 3 affected by the violation. 4 (2) An Internet Service Provider who is adversely 5 affected by the violation. 6 (3) A trademark owner whose trademark is used without 7 the authorization of the owner to deceive users in the course 8 of any of the deceptive practices prohibited by this section. 9 (4) The Attorney General. 10 (b) Additional remedies.--In addition to any other remedy 11 provided by law, a person bringing an action under this section 12 may: 13 (1) Seek injunctive relief to restrain the violator from 14 continuing the violation. 15 (2) Recover damages in an amount equal to the greater 16 of: 17 (i) Actual damages arising from the violation. 18 (ii) Up to $100,000 for each violation, as the court 19 considers just. 20 (3) Seek both injunctive relief and recovery of damages 21 as provided by this subsection. 22 (c) Increase by court.--The court may increase an award of 23 actual damages in an action brought under this section to an 24 amount not to exceed three times the actual damages sustained if 25 the court finds that the violations have occurred with a 26 frequency as to constitute a pattern or practice. 27 (d) Fees and costs.--A plaintiff who prevails in an action 28 filed under this section is entitled to recover reasonable 29 attorney fees and court costs. 30 (e) Communications provider relief.--In the case of a 20050S0711B0858 - 10 -
1 violation of section 4(1)(ii) that causes a communications 2 provider to incur costs for the origination, transport or 3 termination of a call triggered using the modem of a customer of 4 the communications provider as a result of a violation, the 5 communications provider may bring a civil action against the 6 violator to recover any or all of the following: 7 (1) The charges the carrier is obligated to pay to 8 another carrier or to an information service provider as a 9 result of the violation, including, but not limited to, 10 charges for the origination, transport or termination of the 11 call. 12 (2) Costs of handling customer inquiries or complaints 13 with respect to amounts billed for calls. 14 (3) Costs and a reasonable attorney fee. 15 (4) An order to enjoin the violation. 16 (f) Multiple violations.--For purposes of this section, 17 multiple violations of this section resulting from any single 18 action or conduct shall constitute one violation. In addition, 19 any single action or conduct that violates more than one 20 subsection of this section shall be considered multiple 21 violations based on the number of subsections violated. 22 Section 9. Effective date. 23 This act shall take effect in 60 days. E25L12BIL/20050S0711B0858 - 11 -