PRINTER'S NO. 1420
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1212
Session of
2017
INTRODUCED BY BOBACK, MATZIE, MILLARD, V. BROWN AND D. COSTA,
APRIL 12, 2017
REFERRED TO COMMITTEE ON CONSUMER AFFAIRS, APRIL 12, 2017
AN ACT
Providing for the protection of consumers from having spyware
deceptively installed on wireless communication devices and
for criminal enforcement.
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.
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(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).
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"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
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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
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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. Ch. 121 (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. Ch. 206 (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.--
(1) In addition to the authority conferred upon the
Attorney General under the act of October 15, 1980 (P.L.950,
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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.
(2) 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 10 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.
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Section 9. Effective date.
This act shall take effect in 60 days.
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