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[House Report 110-159]
[From the U.S. Government Publishing Office]

110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    110-159

======================================================================

 
            INTERNET SPYWARE (I-SPY) PREVENTION ACT OF 2007

                                _______
                                

  May 21, 2007.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Conyers, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 1525]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1525) to amend title 18, United States Code, to 
discourage spyware, and for other purposes, having considered 
the same, report favorably thereon with an amendment and 
recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     1
Purpose and Summary..............................................     3
Background and Need for the Legislation..........................     3
Hearings.........................................................     5
Committee Consideration..........................................     5
Committee Votes..................................................     5
Committee Oversight Findings.....................................     5
 New Budget Authority and Tax Expenditures.......................     5
 Congressional Budget Office Cost Estimate.......................     6
 Performance Goals and Objectives................................     7
Constitutional Authority Statement...............................     7
Advisory on Earmarks.............................................     7
Section-by-Section Analysis......................................     7
Changes in Existing Law Made by the Bill, as Reported............     9

                             The Amendment

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Internet Spyware (I-SPY) Prevention 
Act of 2007''.

SEC. 2. PENALTIES FOR CERTAIN UNAUTHORIZED ACTIVITIES RELATING TO 
                    COMPUTERS.

    (a) In General.--Chapter 47 of title 18, United States Code, is 
amended by inserting after section 1030 the following:

``Sec. 1030A. Illicit indirect use of protected computers

    ``(a) Whoever intentionally accesses a protected computer without 
authorization, or exceeds authorized access to a protected computer, by 
causing a computer program or code to be copied onto the protected 
computer, and intentionally uses that program or code in furtherance of 
another Federal criminal offense shall be fined under this title or 
imprisoned not more than 5 years, or both.
    ``(b) Whoever intentionally accesses a protected computer without 
authorization, or exceeds authorized access to a protected computer, by 
causing a computer program or code to be copied onto the protected 
computer, and by means of that program or code''
          ``(1) intentionally obtains, or transmits to another, 
        personal information with the intent to defraud or injure a 
        person or cause damage to a protected computer; or
          ``(2) intentionally impairs the security protection of the 
        protected computer with the intent to defraud or injure a 
        person or damage a protected computer; shall be fined under 
        this title or imprisoned not more than 2 years, or both.
    ``(c) No person may bring a civil action under the law of any State 
if such action is premised in whole or in part upon the defendant's 
violating this section. For the purposes of this subsection, the term 
`State' includes the District of Columbia, Puerto Rico, and any other 
territory or possession of the United States.
    ``(d) As used in this section--
          (1) the terms `protected computer' and `exceeds authorized 
        access' have, respectively, the meanings given those terms in 
        section 1030; and
          ``(2) the term `personal information' means--
                  ``(A) a first and last name;
                  ``(B) a home or other physical address, including 
                street name;
                  ``(C) an electronic mail address;
                  ``(D) a telephone number;
                  ``(E) a Social Security number, tax identification 
                number, drivers license number, passport number, or any 
                other government-issued identification number; or
                  ``(F) a credit card or bank account number or any 
                password or access code associated with a credit card 
                or bank account.
    ``(e) This section does not prohibit any lawfully authorized 
investigative, protective, or intelligence activity of a law 
enforcement agency of the United States, a State, or a political 
subdivision of a State, or of an intelligence agency of the United 
States.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 47 of title 18, United States Code, is amended by inserting 
after the item relating to section 1030 the following new item:

``1030A. Illicit indirect use of protected computers.''.

SEC. 3. AUTHORIZATION OF APPROPRIATIONS.

    In addition to any other sums otherwise authorized to be 
appropriated for this purpose, there are authorized to be appropriated 
for each of fiscal years 2008 through 2011, the sum of $10,000,000 to 
the Attorney General for prosecutions needed to discourage the use of 
spyware and the practices commonly called phishing and pharming.

SEC. 4. FINDINGS AND SENSE OF CONGRESS CONCERNING THE ENFORCEMENT OF 
                    CERTAIN CYBERCRIMES.

    (a) Findings.--Congress makes the following findings:
          (1) Software and electronic communications are increasingly 
        being used by criminals to invade individuals' and businesses' 
        computers without authorization.
          (2) Two particularly egregious types of such schemes are the 
        use of spyware and phishing scams.
          (3) These schemes are often used to obtain personal 
        information, such as bank account and credit card numbers, 
        which can then be used as a means to commit other types of 
        theft.
          (4) In addition to the devastating damage that these heinous 
        activities can inflict on individuals and businesses, they also 
        undermine the confidence that citizens have in using the 
        Internet.
          (5) The continued development of innovative technologies in 
        response to consumer demand is crucial in the fight against 
        spyware.
    (b) Sense of Congress.--Because of the serious nature of these 
offenses, and the Internet's unique importance in the daily lives of 
citizens and in interstate commerce, it is the sense of Congress that 
the Department of Justice should use the amendments made by this Act, 
and all other available tools, vigorously to prosecute those who use 
spyware to commit crimes and those that conduct phishing and pharming 
scams.

                          Purpose and Summary

    H.R. 1525, the ``Internet Spyware (I-SPY) Prevention Act of 
2007,'' amends title 18 of the United States Code to clarify 
and enhance criminal penalties when spyware is used for the 
purpose of perpetrating identity theft and other privacy 
intrusions against innocent Internet users. In addition, H.R. 
1525 provides resources and guidance to the Department of 
Justice for the prosecution of spyware, as well as for phishing 
and pharming, which involve other types of fraudulent 
activities. This legislation is substantially similar to H.R. 
744, the ``Internet Spyware (I-SPY) Prevention Act of 2005,'' 
which passed the House during the 109th Congress by a vote of 
395-1.

                Background and Need for the Legislation

    The proliferation of spyware and phishing threatens to 
undermine consumer confidence in the integrity and security of 
the Internet. Software and electronic communications are 
increasingly being used by criminals to invade individuals' and 
businesses' computers without authorization. Two particularly 
egregious examples involve the use of spyware and phishing 
scams.
    Spyware presents privacy, security, and functionality 
concerns for both Internet users and legitimate commercial 
activity on the Internet. The Federal Trade Commission has 
defined ``spyware'' as software that ``aids in gathering 
information about a person or organization without their 
knowledge and that may send such information to another entity 
without the consumer's consent, or that asserts control over a 
computer without the consumer's knowledge.'' \1\ For example, 
one type of spyware is placed on a user's system to steal 
confidential information such as user names, passwords, and 
credit card details. Adware, another form of spyware, in its 
worst form traces a user's Web activity and causes ``pop-up'' 
advertisements to suddenly appear on the user's monitor in 
response, which in many instances cannot be closed by the user.
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    \1\ Federal Trade Commission, Public Workshop: Monitoring Software 
on Your PC: Spyware, Adware, and Other Software, 69 Fed. Reg. 8538 
(Feb. 24, 2004), at http://www.ftc.gov/os/2004/02/
0402I7spywareworkshopfrn.pdf.
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    The greatest security and privacy challenges posed by 
spyware relate to technologies such as keystroke logging 
programs that capture a user's passwords, Social Security 
number, or bank or credit account numbers. This information can 
then be captured and redirected for criminal purposes including 
fraud, larceny, identity theft, or other cybercrimes. Recent 
studies estimate that 80 percent of computers are infected with 
some form of spyware and that 89 percent of consumers are 
unaware of the fact that they have spyware. \2\
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    \2\ Patricia Moloney Figliola, Spyware: Background and Policy 
Issues for Congress, Congressional Research Service Report to Congress, 
at 4 (July 17, 2006); see also Pew Internet & American Life Project, 
Spyware: The threat of unwanted software programs is changing the way 
people use the Internet, at 3 (July 5, 2005), at http://
www.pewInternet.org/pdfs/PIP_SpywareReport_July_5.pdf (2005).
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    A difficulty in combating spyware is that many legitimate 
and beneficial tools for making a user's computing and Internet 
experience more enjoyable are technologically indistinguishable 
from spyware that is used to harm users and computers. For 
example, a ``cookie'' is a small text file typically downloaded 
when a person visits a website. It stores personal information 
and data about the user's preferences to make navigation of the 
site easier. A cookie typically is only accessible and active 
when the user is visiting that website.
    Nevertheless, a cookie can be used for less benevolent 
purposes, such as intentionally targeting the user with ads, or 
tracking the user's visits to other web sites and communicating 
this information to the originating website upon a return 
visit. A cookie can also be used for even more malicious 
purposes, such as, to give a criminal access to a user's 
personal information so that the criminal can then defraud or 
otherwise harm the user.
    Similarities in technological aspects of various cookies, 
yet differences in their use, exemplify why it is imperative to 
address the problem of spyware with appropriate care. The 
problem concerns the illegal use of the Internet and various 
codes, programs, and software, rather than particular 
technologies. Shortsighted regulatory approaches designed to 
stop spyware may unavoidably capture legitimate uses of 
technology. Accordingly, the Committee has concluded that the 
pernicious effects of spyware are most effectively addressed 
through defining prohibited criminal behavior, rather than 
regulating how technology is used and accessed by consumers.
    H.R. 1525, the ``Internet Spyware (I-SPY) Prevention Act of 
2007,'' amends title 18 of the United States Code to clarify 
and enhance criminal penalties when spyware is used for the 
purpose of perpetrating identity theft and other privacy 
intrusions against innocent Internet users. Specifically, it 
prohibits an individual from intentionally accessing a 
protected computer without authorization, or exceeding 
authorized access, by causing a computer program or code to be 
copied onto the protected computer, and intentionally using 
that program or code: (1) in furtherance of another Federal 
criminal offense; (2) to obtain or transmit personal 
information (including a Social Security number or other 
Government-issued identification number, a bank or credit card 
number, or an associated password or access code) with intent 
to defraud or injure a person or cause damage to a protected 
computer; or (3) to impair the security protection of that 
computer.
    H.R. 1525, in addition, addresses other types of fraudulent 
activities, such as online identity theft known as 
``phishing.'' Phishing refers to the artifice of using websites 
that closely emulate those of legitimate businesses or other 
entities. It also includes the use of e-mails that appear to be 
sent from legitimate businesses.\3\ These fraudulent web sites 
and e-mails are designed to deceive Internet users into 
revealing personal information that can then be used to defraud 
these users.\4\ While phishing is adequately addressed by 
existing Federal wire fraud or identity theft statues, 
additional funds are needed to prosecute the crime.\5\ Pharming 
is a version of phishing that involves the fraudulent use of 
domain names. In pharming, hackers hijack a legitimate 
website's domain name, and redirect traffic intended for that 
website to their own. The computer user sees the intended 
website's address in the browser's address line, but instead, 
he or she is connected to the hacker's site and may unknowingly 
provide personal information to the hacker.\6\
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    \3\ See The Internet Spyware (I-SPY) Prevention Act of 2007: 
Hearing on H.R. 1525 Before the Subcomm. on Crime, Terrorism, and 
Homeland Security of the H. Comm. on the Judiciary, 110th Cong. (2007) 
(testimony of Representative Zoe Lofgren (D-CA)).
    \4\ The Anti-Phishing Working Group, an industry organization, 
reported that in January 2007 alone there were 29,930 incidents of 
phishing reported. See http://www.antiphishing.org.
    \5\ Some forms of spyware-related behavior may arguably violate 
sections 1030 and 1037 of title 18 of the United States Code. There 
may, however, be insufficient emphasis upon, guidance to, and 
enforcement of such crimes by Federal prosecutors.
    \6\ See Marcia Smith, Internet Privacy: Overview and Legislation in 
the 109th Congress, Congressional Research Service Report for Congress 
(Jan. 26, 2006).
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    To address these fraudulent activities, H.R. 1525 would 
authorize $10 million to be appropriated for each of fiscal 
years 2008 through 2011 to the Attorney General for 
prosecutions needed to discourage the unlawful use of spyware 
as well as phishing and pharming.

                                Hearings

    The Committee's Subcommittee on Crime, Terrorism, and 
Homeland Security held 1 day of hearings on H.R. 1525 on May 1, 
2007. Testimony was received from Representative Zoe Lofgren 
(D-CA) and Representative Bob Goodlatte (R-VA).

                        Committee Consideration

    On May 2, 2007, the Committee met in open session and 
ordered the bill, H.R. 1525, favorably reported with an 
amendment, by voice vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that there 
were no recorded votes during the Committee's consideration of 
H.R. 1525.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1525, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 17, 2007.
Hon. John Conyers, Jr., Chairman
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1525, the Internet 
Spyware (I-SPY) Prevention Act of 2007.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Mark 
Grabowicz (for federal costs), and Melissa Merrell (for the 
State and local impact).
            Sincerely,
                                           Peter R. Orszag,
                                                          Director.
    Enclosure.

H.R. 1525--Internet Spyware (I-SPY) Prevention Act of 2007.

    Summary: H.R. 1525 would establish new federal crimes for 
the use of certain computer software--known as spyware--to 
collect personal information or to commit a federal criminal 
offense. The bill would authorize the appropriation of $40 
million over the 2008-2011 period for the Attorney General to 
prosecute violations of the new law. Assuming appropriation of 
the authorized amounts, CBO estimates that implementing the 
bill would cost $9 million in 2008 and $40 million over the 
2008-2012 period. CBO expects that enacting the bill would have 
an insignificant effect on federal revenues and direct 
spending.
    H.R. 1525 contains an intergovernmental mandate as defined 
in the Unfunded Mandates Reform Act (UMRA), but CBO estimates 
that any costs to State, local, and tribal governments would be 
minimal and would not exceed the threshold established in UMRA 
($66 million in 2007, adjusted annually for inflation). The 
bill contains no new private-sector mandates as defined in 
UMRA.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 1525 is shown in the following table. 
The costs of this legislation fall within budget function 750 
(administration of justice).

----------------------------------------------------------------------------------------------------------------
                                                                       By fiscal year, in millions of dollars--
                                                                    --------------------------------------------
                                                                       2008     2009     2010     2011     2012
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                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Authorization Level................................................       10       10       10       10        0
Estimated Outlays..................................................        9       10       10       10        1
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    For this estimate, CBO assumes that the bill will be 
enacted near the start of the fiscal year 2008 and that the 
authorized amounts will be appropriated each year.
    Enacting H.R. 1525 could increase federal revenues and 
direct spending as a result of additional criminal penalties 
assessed for violations of law relating to spyware. Collections 
of criminal penalties are recorded in the budget as revenues, 
deposited in the Crime Victims Fund, and later spent. CBO 
estimates, however, that any additional revenues and direct 
spending that would result from enacting the bill would not be 
significant because of the relatively small number of cases 
likely to be involved.
    Estimated impact on state, local, and tribal governments: 
Section 1030A (c) of H.R. 1525 would prohibit States from 
creating civil penalties that specifically reference the 
federal statute. This prohibition would constitute a mandate as 
define in UMRA, but it is narrow and would not prohibit States 
from passing similar criminal and civil statutes. CBO estimates 
that any costs to State, local, or tribal governments would be 
minimal and would fall significantly below the threshold 
established in UMRA ($66 million in 2007, adjusted annually for 
inflation).
    Estimated impact on the private sector: The bill contains 
no new private-sector mandates as defined in UMRA.
    Estimate prepared by: Federal Costs: Mark Grabowicz; Impact 
on state, local, and tribal governments: Melissa Merrell; 
Impact on the private sector: Paige Piper/Bach.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
1525 enhances existing fraud and computer crime law with strong 
criminal penalties targeting egregious abuses perpetrated upon 
Internet users by persons who use spyware, and provides 
additional resources to combat spyware and phishing.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 8, clause 3 of the 
Constitution.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 1525 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(d), 9(e), or 9(t) of rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.

Sec. 1. Short title

    Section 1 sets forth the short title of the bill as the 
``Internet Spyware (I-SPY) Prevention Act of 2007.''

Sec. 2. Penalties for certain unauthorized activities relating to 
        computers.

    Section 2 establishes new criminal offenses and penalties 
for certain types of spyware activity. It amends title 18 of 
the United States Code to add a new provision, section 1030A. 
New section 1030A makes it a crime to intentionally access a 
protected computer without authorization or to exceed 
authorized access by causing a computer program or code to be 
copied onto the protected computer. It should be noted that 
section 1030A is not intended to supersede or displace sections 
1030 and 1037 of title 18, nor is it intended to limit in any 
respect the ability of prosecutors to continue bringing actions 
for spyware- or phishing-related crimes under these or other 
existing statutes.
    Section 1030A(a) provides that anyone who uses that program 
or code in furtherance of another Federal criminal offense 
shall be fined under title 18 or imprisoned for up to 5 years, 
or both.
    Section 1030A(b) authorizes the imposition of fines under 
title 18 or imprisonment up to 2 years, or both, for anyone who 
by means of such program or code: (1) intentionally obtains, or 
transmits to another, personal information with the intent to 
defraud or injure a person or cause damage to a protected 
computer; or (2) intentionally impairs the security protection 
of the protected computer.
    Section 1030A(c) provides that no person may bring a civil 
action under the law of any State if such action is premised in 
whole or in part upon the defendant's violation of this 
section. This provision does not preempt cases brought in State 
court based on independent State law causes of action, nor is 
the provision intended to preempt existing or future State laws 
that may prohibit conduct similar or identical to the conduct 
prohibited in the Act. The provision simply provides that 
violation of the Act itself cannot supply the basis for a State 
civil action. As some States permit civil tort actions premised 
on a violation of Federal criminal statutes, the Committee 
believes the clarifying language of section 1030A(c) is 
necessary. In addition, because much of the power and promise 
of the Internet comes from its ability to transcend geographic 
and political boundaries, it is important to avoid having 
Internet commerce become mired in potentially inconsistent 
State application of Federal law. Section 1030A(c) ensures that 
this does not happen.
    Section 1030A(d) defines certain terms used in this 
section. The terms ``protected computer'' and ``exceeds 
authorized access'' have the same meanings as set forth in 
section 1030 of title 18. The term ``personal information'' 
means: (1) a first and last name; (2) a home or other physical 
address, including street name; (3) an electronic mail address; 
(4) a telephone number; (5) a Social Security number, tax ID 
number, driver's license number, passport number, or any other 
Government-issued identification number; or (6) a credit card 
or bank account number or any password or access code 
associated with a credit card number or bank account.
    Section 2(b) of the Act makes a conforming amendment to the 
table of sections in title 18 of the United States Code.

Sec. 3. Authorization of appropriations

    Section 3 authorizes $10 million to be appropriated for 
each of fiscal years 2008 through 2011 to the Attorney General 
for prosecutions needed to discourage the use of spyware as 
well as phishing and pharming.

Sec. 4. Findings and Sense of Congress concerning the enforcement of 
        certain cybercrimes

    Subsection 4(a) sets forth findings on the impact of 
cybercrimes involving spyware and phishing and the effects of 
such crimes on the confidence of Internet users.
    Subsection 4(b) offers guidance to the Department of 
Justice by setting forth Congress' view of the gravity of these 
crimes and their effects, and declares that it is the sense of 
Congress that the Department of Justice utilize this Act and 
all other available tools to vigorously prosecute those who 
utilize spyware or phishing software to engage in criminal 
activity.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

TITLE 18, UNITED STATES CODE

           *       *       *       *       *       *       *

PART I--CRIMES

           *       *       *       *       *       *       *

                 CHAPTER 47--FRAUD AND FALSE STATEMENTS

Sec.
1001.  Statements or entries generally.
          * * * * * * *
1030A.  Illicit indirect use of protected computers.
          * * * * * * *

Sec. 1030A.  Illicit indirect use of protected computers

    (a) Whoever intentionally accesses a protected computer 
without authorization, or exceeds authorized access to a 
protected computer, by causing a computer program or code to be 
copied onto the protected computer, and intentionally uses that 
program or code in furtherance of another Federal criminal 
offense shall be fined under this title or imprisoned not more 
than 5 years, or both.
    (b) Whoever intentionally accesses a protected computer 
without authorization, or exceeds authorized access to a 
protected computer, by causing a computer program or code to be 
copied onto the protected computer, and by means of that 
program or code--
          (1) intentionally obtains, or transmits to another, 
        personal information with the intent to defraud or 
        injure a person or cause damage to a protected 
        computer; or
          (2) intentionally impairs the security protection of 
        the protected computer with the intent to defraud or 
        injure a person or damage a protected computer;
shall be fined under this title or imprisoned not more than 2 
years, or both.
    (c) No person may bring a civil action under the law of any 
State if such action is premised in whole or in part upon the 
defendant's violating this section. For the purposes of this 
subsection, the term ``State'' includes the District of 
Columbia, Puerto Rico, and any other territory or possession of 
the United States.
    (d) As used in this section--
          (1) the terms ``protected computer'' and ``exceeds 
        authorized access'' have, respectively, the meanings 
        given those terms in section 1030; and
          (2) the term ``personal information'' means--
                  (A) a first and last name;
                  (B) a home or other physical address, 
                including street name;
                  (C) an electronic mail address;
                  (D) a telephone number;
                  (E) a Social Security number, tax 
                identification number, drivers license number, 
                passport number, or any other government-issued 
                identification number; or
                  (F) a credit card or bank account number or 
                any password or access code associated with a 
                credit card or bank account.
    (e) This section does not prohibit any lawfully authorized 
investigative, protective, or intelligence activity of a law 
enforcement agency of the United States, a State, or a 
political subdivision of a State, or of an intelligence agency 
of the United States.

           *       *       *       *       *       *       *

                                  
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