PRINTER'S NO.  96

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

123

Session of

2009

  

  

INTRODUCED BY GORDNER, WOZNIAK, ERICKSON, LEACH, ALLOWAY, BOSCOLA, CORMAN, COSTA, EARLL, FERLO, KASUNIC, KITCHEN, LOGAN, O'PAKE, ORIE, RAFFERTY, SMUCKER, STOUT, TARTAGLIONE, VANCE, WAUGH, D. WHITE, WILLIAMS AND STACK, JANUARY 30, 2009

  

  

REFERRED TO COMMUNICATIONS AND TECHNOLOGY, JANUARY 30, 2009  

  

  

  

AN ACT

  

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Providing for the protection of consumers from having spyware

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deceptively installed on their computers and for criminal and

3

civil enforcement.

4

TABLE OF CONTENTS

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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.  Criminal enforcement.

12

Section 8.  Penalty.

13

Section 9.  Civil relief.

14

Section 19.  Construction.

15

Section 20.  Effective date.

16

The General Assembly of the Commonwealth of Pennsylvania

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hereby enacts as follows:

 


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Section 1.  Short title.

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This act shall be known and may be cited as the Consumer

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Protection Against Computer Spyware Act.

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Section 2.  Definitions.

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The following words and phrases when used in this act shall

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have the meanings given to them in this section unless the

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context clearly indicates otherwise:

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"Authorized user."  With respect to a computer, a person who

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owns or is authorized by the owner or lessee to use the

10

computer.

11

"Cause to be copied."  To distribute, transfer or procure the

12

copying of computer software or any component thereof. The term

13

shall not include the following:

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(1)  Transmission, routing, provision of intermediate

15

temporary storage or caching of software.

16

(2)  A storage or hosting medium, such as a compact disc,

17

Internet website or computer server, through which the

18

software was distributed by a third party.

19

(3)  An information location tool, such as a directory,

20

index, reference, pointer or hypertext link, through which

21

the user of the computer located the software.

22

"Communications provider."  Entity providing communications

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networks or services that enable consumers to access the

24

Internet or destinations on the public switched telephone

25

network via a computer modem. This term shall include cable

26

service providers that also provide telephone services and

27

providers of Voice over Internet Protocol services.

28

"Computer software."  A sequence of instructions written in

29

any programming language that is executed on a computer. The

30

term shall not include a text or data file, an Internet website

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or a data component of an Internet website that is not

2

executable independently of the Internet website.

3

"Computer virus."  A computer program or other set of

4

instructions that is designed to degrade the performance of or

5

disable a computer, computer network or computer software and is

6

designed to have the ability to replicate itself on other

7

computers or computer networks without the authorization of the

8

owners of those computers or computer networks.

9

"Damage."  Any material impairment to the integrity,

10

functionality or availability of data, software, a computer, a

11

system or information.

12

"Deceptive" or "deception."  Includes, but is not limited to:

13

(1)  An intentionally and materially false or fraudulent

14

statement.

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(2)  A statement or description that intentionally omits

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or misrepresents material information in order to deceive the

17

authorized user.

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(3)  An intentional and material failure to provide any

19

notice to an authorized user regarding the download or

20

installation of software in order to deceive the authorized

21

user.

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"Execute."  With respect to computer software, the

23

performance of the functions or the carrying out of the

24

instructions of the computer software.

25

"Internet."  The global information system that is logically

26

linked together by a globally unique address space based on the

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Internet Protocol (IP), or its subsequent extensions, and that

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is able to support communications using the Transmission Control

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Protocol/Internet Protocol (TCP/IP) suite, or its subsequent

30

extensions, or other IP-compatible protocols, and that provides,

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uses or makes accessible, either publicly or privately, high-

2

level services layered on the communications and related

3

infrastructure described in this act.

4

"Message."  A graphical or text communication presented to an

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authorized user of a computer other than communications

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originated and sent by the computer's operating system or

7

communications presented for any of the purposes described in

8

section 6.

9

"Person."  Any individual, partnership, corporation, limited

10

liability company or other organization, or any combination

11

thereof.

12

"Personally identifiable information."  The term shall

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include any of the following:

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(1)  First name or first initial in combination with last

15

name.

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(2)  Credit or debit card numbers or other financial

17

account numbers.

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(3)  A password or personal identification number

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required to access an identified financial account other than

20

a password, personal identification number or other

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identification number transmitted by an authorized user to

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the issuer of the account or its agent.

23

(4)  Social Security number.

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(5)  Any of the following information in a form that

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personally identifies an authorized user:

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(i)  Account balances.

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(ii)  Overdraft history.

28

(iii)  Payment history.

29

(iv)  A history of Internet websites visited.

30

(v)  Home address.

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(vi)  Work address.

2

(vii)  A record of a purchase or purchases.

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"Procure the copying."  To pay, provide other consideration

4

to or induce another person to cause software to be copied onto

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a computer.

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Section 3.  Computer spyware prohibitions.

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A person or entity that is not an authorized user shall not,

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with actual knowledge with conscious avoidance of actual

9

knowledge or willfully, cause computer software to be copied or

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procure the copying onto the computer of an authorized user in

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this Commonwealth and use the software to do any of the

12

following acts or any other acts deemed to be deceptive:

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(1)  Modify through deceptive means any of the following

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settings related to the computer's access to or use of the

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Internet:

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(i)  The page that appears when an authorized user

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launches an Internet browser or similar software program

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used to access and navigate the Internet.

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(ii)  The default provider or Internet website proxy

20

the authorized user uses to access or search the

21

Internet.

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(iii)  The authorized user's list of bookmarks used

23

to access Internet website pages.

24

(2)  Collect through deceptive means personally

25

identifiable information that meets any of the following

26

criteria:

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(i)  It is collected through the use of a keystroke-

28

logging function that records all keystrokes made by an

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authorized user who uses the computer and transfers that

30

information from the computer to another person.

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(ii)  It includes all or substantially all of the

2

Internet websites visited by an authorized user, other

3

than Internet websites of the provider of the software,

4

if the computer software was installed in a manner

5

designed to conceal from all authorized users of the

6

computer the fact that the software is being installed.

7

(iii)  It is a data element described in paragraph

8

(2), (3), (4) or (5)(i) or (ii) of the definition of

9

"personally identifiable information" that is extracted

10

from the authorized user's computer hard drive for a

11

purpose wholly unrelated to any of the purposes of the

12

software or service described to an authorized user.

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(3)  Prevent, without the authorization of an authorized

14

user, through deceptive means an authorized user's reasonable

15

efforts to block the installation of or to disable software

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by causing software that the authorized user has properly

17

removed or disabled to automatically reinstall or reactivate

18

on the computer without the authorization of an authorized

19

user.

20

(4)  Misrepresent that software will be uninstalled or

21

disabled by an authorized user's action with knowledge that

22

the software will not be so uninstalled or disabled.

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(5)  Through deceptive means, remove, disable or render

24

inoperative security, antispyware or antivirus software

25

installed on the computer.

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Section 4.  Control or modification.

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A person or entity that is not an authorized user shall not,

28

with actual knowledge, with conscious avoidance of actual

29

knowledge or willfully, cause computer software to be copied or

30

procure the copying onto the computer of an authorized user in

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1

this Commonwealth and use the software to do any of the

2

following acts or any other acts deemed to be deceptive:

3

(1)  Take control of the authorized user's computer by

4

doing any of the following:

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(i)  Transmitting or relaying commercial electronic

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mail or a computer virus from the authorized user's

7

computer, where the transmission or relaying is initiated

8

by a person other than the authorized user and without

9

the authorization of an authorized user.

10

(ii)  Accessing or using the authorized user's modem

11

or Internet service for the purpose of causing damage to

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the authorized user's computer or of causing an

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authorized user to incur financial charges for a service

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that is not authorized by an authorized user.

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(iii)  Using the authorized user's computer as part

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of an activity performed by a group of computers for the

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purpose of causing damage to another computer, including,

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but not limited to, launching a denial of service attack.

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(iv)  Opening a series of stand-alone messages in the

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authorized user's computer without the authorization of

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an authorized user and with knowledge that a reasonable

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computer user cannot close the advertisements without

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turning off the computer or closing the Internet

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application.

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(2)  Modify any of the following settings related to the

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computer's access to or use of the Internet:

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(i)  An authorized user's security or other settings

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that protect information about the authorized user for

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the purpose of stealing personal information of an

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authorized user.

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(ii)  The security settings of the computer for the

2

purpose of causing damage to one or more computers.

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(3)  Prevent, without the authorization of an authorized

4

user, an authorized user's reasonable efforts to block the

5

installation of or to disable software by doing any of the

6

following:

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(i)  Presenting the authorized user with an option to

8

decline installation of software with knowledge that,

9

when the option is selected by the authorized user, the

10

installation nevertheless proceeds.

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(ii)  Falsely representing that software has been

12

disabled.

13

(iii)  Requiring, in a deceptive manner, the user to

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access the Internet to remove the software with knowledge

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or reckless disregard of the fact that the software

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frequently operates in a manner that prevents the user

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from accessing the Internet.

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(iv)  Changing the name, location or other

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designation information of the software for the purpose

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of preventing an authorized user from locating the

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software to remove it.

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(v)  Using randomized or deceptive file names,

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directory folders, formats or registry entries for the

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purpose of avoiding detection and removal of the software

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by an authorized user.

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(vi)  Causing the installation of software in a

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particular computer directory or computer memory for the

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purpose of evading authorized users' attempts to remove

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the software from the computer.

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(vii)  Requiring, without the authority of the owner

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1

of the computer, that an authorized user obtain a special

2

code or download software from a third party to uninstall

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the software.

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Section 5.  Misrepresentation and deception.

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A person or entity who is not an authorized user shall not do

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any of the following or any other misrepresenting and deceptive

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acts with regard to the computer of an authorized user in this

8

Commonwealth:

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(1)  Induce an authorized user to install a software

10

component onto the computer by misrepresenting that

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installing software is necessary for security or privacy

12

reasons or in order to open, view or play a particular type

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of content.

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(2)  Causing the copying and execution on the computer of

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a computer software component with the intent of causing an

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authorized user to use the component in a way that violates

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any other provision of this section.

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Section 6.  Nonapplicability.

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(1)  Nothing in section 4 or 5 shall apply to any

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monitoring of or interaction with a user's Internet or other

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network connection or service, or a protected computer, by a

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cable operator, computer hardware or software provider or

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provider of information service or interactive computer

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service for network or computer security purposes,

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diagnostics, technical support, repair, authorized updates of

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software or system firmware, network management or

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maintenance, authorized remote system management or detection

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or prevention of the unauthorized use of or fraudulent or

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other illegal activities in connection with a network,

30

service or computer software, including scanning for and

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removing software proscribed under this act.

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(2)  Nothing in this act shall limit the rights of

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providers of wire and electronic communications under 18

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U.S.C. § 2511 (relating to interception and disclosure of

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wire, oral, or electronic communications prohibited).

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Section 7.  Criminal enforcement.

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(a)  District attorneys.--The district attorneys of the

8

several counties shall have authority to investigate and to

9

institute criminal proceedings for any violations of this act.

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(b)  Attorney General.--In addition to the authority

11

conferred upon the Attorney General under the act of October 15,

12

1980 (P.L.950, No.164), known as the Commonwealth Attorneys Act,

13

the Attorney General shall have the authority to investigate and

14

institute criminal proceedings for any violation of this act. A

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person charged with a violation of this act by the Attorney

16

General shall not have standing to challenge the authority of

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the Attorney General to investigate or prosecute the case and,

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if any such challenge is made, the challenge shall be dismissed

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and no relief shall be available in the courts of this

20

Commonwealth to the person making the challenge.

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(c)  Proceedings against persons outside Commonwealth.--In

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addition to powers conferred upon district attorneys and the

23

Attorney General in subsections (a) and (b), district attorneys

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and the Attorney General shall have the authority to investigate

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and initiate criminal proceedings against persons for violations

26

of this act in accordance with 18 Pa.C.S. § 102 (relating to

27

territorial applicability).

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Section 8.  Penalty.

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Any person that violates the provisions of sections 3(2) and

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4(1)(i), (ii) and (iii) and (2) commits a felony of the second

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1

degree and shall, upon conviction, be sentenced to imprisonment

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for not less than one nor more than ten years or to pay a fine,

3

notwithstanding 18 Pa.C.S. § 1101 (relating to fines), of not

4

more than $25,000, or both.

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Section 9.  Civil relief.

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(a)  General rule.--The following persons may bring a civil

7

action against a person who violates this act:

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(1)  A provider of computer software who is adversely

9

affected by the violation.

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(2)  An Internet Service Provider who is adversely

11

affected by the violation.

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(3)  A trademark owner whose trademark is used without

13

the authorization of the owner to deceive users in the course

14

of any of the deceptive practices prohibited by this section.

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(b)  Additional remedies.--In addition to any other remedy

16

provided by law, a permitted person bringing an action under

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this section may:

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(1)  Seek injunctive relief to restrain the violator from

19

continuing the violation.

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(2)  Recover damages in an amount equal to the greater

21

of:

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(i)  Actual damages arising from the violation.

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(ii)  Up to $100,000 for each violation, as the court

24

considers just.

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(3)  Seek both injunctive relief and recovery of damages

26

as provided by this subsection.

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(c)  Increase by court.--The court may increase an award of

28

actual damages in an action brought under this section to an

29

amount not to exceed three times the actual damages sustained if

30

the court finds that the violations have occurred with a

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1

frequency with respect to a group of victims as to constitute a

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pattern or practice.

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(d)  Fees and costs.--A plaintiff who prevails in an action

4

filed under this section is entitled to recover reasonable

5

attorney fees and court costs.

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(e)  Communications provider relief.--In the case of a

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violation of section 4(1)(ii) that causes a communications

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provider to incur costs for the origination, transport or

9

termination of a call triggered using the modem of a customer of

10

the communications provider as a result of a violation, the

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communications provider may bring a civil action against the

12

violator to recover any or all of the following:

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(1)  The charges the carrier is obligated to pay to

14

another carrier or to an information service provider as a

15

result of the violation, including, but not limited to,

16

charges for the origination, transport or termination of the

17

call.

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(2)  Costs of handling customer inquiries or complaints

19

with respect to amounts billed for calls.

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(3)  Costs and a reasonable attorney fee.

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(4)  An order to enjoin the violation.

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(f)  Multiple violations.--For purposes of a civil action

23

under this section, any single action or conduct that violates

24

more than one paragraph of this act shall be considered multiple

25

violations based on the number of such paragraphs violated.

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Section 19.  Construction.

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The provisions of this act shall not limit the jurisdiction

28

and authority of the Office of Attorney General, including, but

29

not limited to, the jurisdiction and authority granted pursuant

30

to the act of October 15, 1980 (P.L.950, No.164), known as the

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1

Commonwealth Attorneys Act, and the act of December 17, 1968

2

(P.L.1224, No.387), known as the Unfair Trade Practices and

3

Consumer Protection Law.

4

Section 20.  Effective date.

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This act shall take effect in 60 days.

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