THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY BOBACK, BOYD, CALTAGIRONE, CLYMER, COHEN, D. COSTA, DeLUCA, DENLINGER, FLECK, GEIST, GILLESPIE, GOODMAN, GROVE, HARHART, HARKINS, HARRIS, HELM, HESS, HORNAMAN, JOSEPHS, KAUFFMAN, KNOWLES, KORTZ, MAJOR, METZGAR, MILLARD, MILLER, MILNE, MOUL, MUNDY, MURT, M. O'BRIEN, O'NEILL, PICKETT, PYLE, RAPP, READSHAW, SAINATO, SCHRODER, K. SMITH, SWANGER, J. TAYLOR, TOEPEL AND YOUNGBLOOD, FEBRUARY 8, 2011

REFERRED TO COMMITTEE ON CONSUMER AFFAIRS, FEBRUARY 8, 2011  

AN ACT

Providing for the protection of consumers from having spyware

deceptively installed on wireless communication devices and

for criminal enforcement.

TABLE OF CONTENTS

Section 1.  Short title.

Section 2.  Definitions.

Section 3.  Spyware prohibition.

Section 4.  Misrepresentation and deception.

Section 5.  Nonapplicability.

Section 6.  Criminal enforcement.

Section 7.  Penalty.

Section 8.  Construction.

Section 9.  Effective date.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

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

Protection Against Spyware on Wireless Devices Act.

Section 2.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Authorized user."  With respect to a wireless communication

device, a person who is the account subscriber or is authorized

by the account subscriber to use the device.

"Deceptive" or "deception."  The term includes:

(1)  An intentionally and materially false or fraudulent

statement.

(2)  A statement or description that intentionally omits

or misrepresents material information in order to deceive the

authorized user.

(3)  An intentional and material failure to provide any

notice to an authorized user regarding the download or

installation of software in order to deceive the authorized

user.

"Download."  Transfer, transmit, install or otherwise cause

software to be received and stored on a wireless communication

device.

"Electronic communication."  As defined in 18 Pa.C.S. § 5702

(relating to definitions).

"Execute."  With respect to software, the performance of the

functions or the carrying out of the instructions of the

software.

"Internet."  The global information system that is logically

linked together by a globally unique address space based on the

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

is able to support communications using the Transmission Control

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

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

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

level services layered on the communications and related

infrastructure described in this act.

"Message."  A graphical, electronic or text communication

presented to an authorized user other than communications

originated and sent by the operating system or communications

presented for any of the purposes described in section 6.

"Oral communication."  As defined in 18 Pa.C.S. § 5702

(relating to definitions).

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

liability company or other organization, or any combination

thereof.

"Software."  A sequence of instructions or data, written in

any programming language, executed on a wireless communication

device.

"Spyware."  Any software designed to be downloaded on a

wireless communication device and permit remote monitoring of

oral communications, text messages, electronic communications

usage patterns, photographic or video functionality or the

location of the user of the device on which it has been

installed.

"Wireless communication."  Any oral, electronic text or

graphic communication or message sent or received by the

authorized user of a wireless communication device.

"Wireless communication device."  Any cellular device or

handset capable of:

(1)  Sending or receiving, in analog or digital format,

oral text or electronic communications and messaging.

(2)  Connecting to the Internet.

(3)  Taking, sending and receiving photographs or video.

"Wireless communications service provider."  An entity

providing wireless communications networks or services that

enable users to send and receive oral, electronic text or

graphic communications; access the Internet; and download

applications and software directly to a wireless communication

device.

Section 3.  Spyware prohibition.

Subject to the nonapplicability provisions of section 5, no

person shall cause spyware to be installed or downloaded onto a

wireless communication device without the express consent of the

authorized user,

Section 4.  Misrepresentation and deception.

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

induce an authorized user to install spyware onto a wireless

communication device by misrepresenting that installing software

is necessary for security or privacy reasons or in order to

open, view or play a particular type of content, or commit any

other misrepresenting or deceptive act with regard to a wireless

communication device of an authorized user in this Commonwealth.

Section 5.  Nonapplicability.

Nothing in this act shall:

(1)  Apply to installation of any software or hardware on

a wireless communication device by a wireless communications

device manufacturer or wireless communications service

provider, provided that the software or hardware is:

(i)  Necessary or incident to the provision of

wireless communications service or the equipment or

facilities used, in the ordinary course of business, to

provide wireless communications service.

(ii)  Used, pursuant to court order or exigent

circumstances, to assist an investigative or law

enforcement officer or locate persons suspected of

involvement in criminal activities.

(iii)  Used by police and emergency communications

systems to locate any person calling 911 or a police

department, fire department or county emergency center.

(2)  Apply to monitoring of or interaction with a user's

wireless communication device, including the Internet or

other network connection or service, by a wireless

communications service provider for the purpose of network

security, diagnostics, technical support, repair, authorized

updates of software, network management or maintenance or any

other administrative, commercial, technical or business

purpose.

(3)  Apply to monitoring of or interaction with a user's

wireless communication device, including the Internet or

other network connection or service, by a wireless

communications service provider for the purpose of detecting

or preventing unauthorized use, fraud or other illegal

activity in connection with a network, service or computer

software, including scanning for and removing spyware

proscribed under this act.

(4)  Impact or limit the rights of providers of

electronic communications under 18 U.S.C. § 2511 (relating to

interception and disclosure of wire, oral, or electronic

communications prohibited), 18 U.S.C. § 2701 et seq.

(relating to stored wire and electronic communications and

transactional records access), 18 U.S.C. § 3117 (relating to

mobile tracking devices), 18 U.S.C. § 3121 et seq. (relating

to pen registers and trap and trace devices), or 18 Pa.C.S. §

5704 (relating to exceptions to prohibition of interception

and disclosure of communications).

Section 6.  Criminal enforcement.

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

several counties shall have authority to investigate and to

institute criminal proceedings for any violations of this act.

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

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

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

the Attorney General shall have the authority to investigate and

institute criminal proceedings for any violation of this act. A

person charged with a violation of this act by the Attorney

General shall not have standing to challenge the authority of

the Attorney General to investigate or prosecute the case and,

if a challenge is made, the challenge shall be dismissed and no

relief shall be available in the courts of this Commonwealth to

the person making the challenge.

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

addition to powers conferred upon district attorneys and the

Attorney General under subsections (a) and (b), district

attorneys and the Attorney General shall have the authority to

investigate and initiate criminal proceedings against persons

for violations of this act in accordance with 18 Pa.C.S. § 102 

(relating to territorial applicability).

Section 7.  Penalty.

Any person that violates section 3 or 4 commits a felony of

the second degree and shall, upon conviction, be sentenced to

imprisonment for not more than ten years or to pay a fine,

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

more than $25,000, or both.

Section 8.  Construction.

The provisions of this act shall not be construed to limit

the jurisdiction and authority of the Office of Attorney

General, including the jurisdiction and authority granted

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

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

1968 (P.L.1224, No.387), known as the Unfair Trade Practices and

Consumer Protection Law.

Section 20.  Effective date.

This act shall take effect in 60 days.