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[Senate Report 108-424]
[From the U.S. Government Publishing Office]

108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-424
_______________________________________________________________________

                                     

                                                       Calendar No. 811

                           THE SPY BLOCK ACT

                               __________

                              R E P O R T

                                 OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                S. 2145

DATE deg.December 7, 2004.--Ordered to be printed
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                      one hundred eighth congress
                             second session

                     JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska                  ERNEST F. HOLLINGS, South Carolina
CONRAD BURNS, Montana                DANIEL K. INOUYE, Hawaii
TRENT LOTT, Mississippi              JOHN D. ROCKEFELLER IV, West 
KAY BAILEY HUTCHISON, Texas              Virginia
OLYMPIA J. SNOWE, Maine              JOHN F. KERRY, Massachusetts
SAM BROWNBACK, Kansas                JOHN B. BREAUX, Louisiana
GORDON SMITH, Oregon                 BYRON L. DORGAN, North Dakota
PETER G. FITZGERALD, Illinois        RON WYDEN, Oregon
JOHN ENSIGN, Nevada                  BARBARA BOXER, California
GEORGE ALLEN, Virginia               BILL NELSON, Florida
JOHN E. SUNUNU, New Hampshire        MARIA CANTWELL, Washington
                                     FRANK LAUTENBERG, New Jersey
           Jeanne Bumpus, Staff Director and General Counsel
                   Rob Freeman, Deputy Staff Director
     Samuel Whitehorn, Democratic Staff Director and Chief Counsel
               Margaret Spring, Democratic Senior Counsel

                                                       Calendar No. 811
108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-424

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

 
                           THE SPY BLOCK ACT

                                _______
                                

                December 7, 2004.--Ordered to be printed

                                _______
                                

       Mr. McCain, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                              R E P O R T

                         [To accompany S. 2145]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill joint resolution deg. (S. 
2145) TITLE deg. to regulate the unauthorized 
installation of computer software, to require clear disclosure 
to computer users of certain computer software features that 
may pose a threat to user privacy, and for other purposes, 
having considered the same, reports favorably thereon 
without amendment deg. with amendments deg. 
with an amendment (in the nature of a substitute) and 
recommends that the bill joint resolution deg. (as 
amended) do pass.

                          Purpose of the Bill

    The purpose of this legislation is to prohibit a variety of 
deceptive software and online practices that may result in 
spyware or other unwanted software being placed on consumers' 
computers. Specifically, the legislation would prohibit (1) 
deceptive software installation and removal practices; (2) 
software that collects information about consumers or their 
computer usage and transmits it to others automatically without 
consent or notice of such features to consumers prior to the 
collection of the information; (3) software delivering 
advertisements on consumers' computers without identifying 
itself as the source of the ads; and (4) various other 
practices that may frustrate a consumer's control of his or her 
computer.

                          Background and Needs

    The term ``spyware'' commonly refers to software that 
secretly monitors a computer user's activities, or collects his 
or her personal information, and shares it with others via the 
Internet without that user's knowledge or consent. Spyware may 
be downloaded onto a consumer's computer in several different 
forms: as self-executing programs contained in unsolicited e-
mail messages (spam); as advertisement-serving software 
(adware); as keystroke-logging software (key-loggers); or as 
what appears to be a harmless program or data file a user 
downloads from a website or obtains through a file-sharing 
program that actually contains malicious, self-executing 
software code much like a virus (Trojan horses). \1\ Spyware 
may be used for many criminal, deceptive, and privacy-intrusive 
purposes, including: to record a user's keystroke data and 
transmit to others his or her captured log-in account names, 
passwords and e-mail addresses; to steal a user's financial and 
other personally identifiable information (PII); to barrage 
users with pop-up advertisements; to change a computer's dial-
up connection to dial a ``900 number'' pay-per-minute call 
instead of the user's Internet service provider; and to 
redirect browser home pages to promotional or pornographic 
sites. According to a 2004 online safety study of home computer 
users conducted jointly by the National Cyber Security Alliance 
and America Online, Inc., eighty percent of those surveyed had 
spyware or adware programs on their home computer. \2\ 
---------------------------------------------------------------------------
    \1\ Internet industry experts differ in how they define the term 
``spyware.'' For some, the terms ``spyware'', ``adware'', 
``sneakware'', and ``malware'' are all used interchangeably. For 
others, especially Internet advertising companies, there are 
significant differences between spyware and adware, which will be 
further discussed below. 
    \2\ Press Release, National Cyber Security Alliance, October 25, 
2004 (see www.staysafeonline.info).
---------------------------------------------------------------------------
    As further discussed below, the legislation addresses 
deceptive practices and information collection with respect to 
two types of software: ``spyware'' and ``adware''.

                                SPYWARE

    The term spyware could be applied to software that does any 
number of monitoring activities without a consumer's knowledge 
or consent. However, most proponents of spyware legislation 
agree that certain practices are clearly anti-consumer 
practices that should be either prohibited because of privacy 
concerns (i.e., spyware) or regulated for other consumer 
protection purposes (i.e., deceptive trade practices). Taken 
together, these illegal or, at the very least, unacceptable 
practices typically are based on three types of problems: (1) 
threats to the privacy and security of a user's computer 
without his or her knowledge or consent; (2) the transparency 
of the process used in distributing the programs, including 
downloading and installing software on a consumer's computer; 
and (3) the availability of easy-to-understand user controls to 
remove any unwanted software. For example, most distributors of 
legitimate software would agree that the following practices 
should be, or are already, prohibited by law: reconfiguring a 
consumer's operating system or other software on the computer 
without the consumer's knowledge or consent; installing 
software on a consumer's computer without permission, through 
deceptive means, or by coercion; and preventing a consumer--by 
either software design or by artificially creating an 
unnecessarily complicated procedure--from easily removing 
unwanted software from his or her computer.
    In the prototypical case of spyware, a computer user is 
unaware that a software program has been installed on his or 
her computer, and if the user does becomes aware of it, he or 
she often has a difficult time uninstalling it. In some cases, 
spyware programs piggyback on other applications or trick users 
into authorizing their download and installation through 
deceptive ``pop-up'' ads. Additionally, some forms of spyware 
spread themselves by exploiting security vulnerabilities in e-
mail attachments or browsers. Most often, consumers unknowingly 
get spyware on their computer while downloading free 
applications such as screensavers, games, basic utility 
programs (e.g., calendars or calculators), or peer-to-peer 
(P2P) file-sharing programs. Even if some actual notice of the 
software's purpose is provided at the time of download, it is 
often buried in the complexities of an End User License 
Agreement (EULA) that obfuscates the warning. The usual result 
is that consumers typically do not know that spyware is being 
downloaded on their computer nor appreciate the level of 
permission that they are unwittingly giving others to access 
their computers, obtain their PII, or monitor their Internet 
browsing habits.
    By unintentionally allowing access to their computers, 
consumers run the risk, among other things, of having their 
credit card numbers and account passwords stolen, which may 
ultimately result in the crime of identity theft being 
perpetrated against them. Additionally, if a consumer gets 
enough spyware on his or her computer, important resources such 
as virtual memory and processing power may become over-
burdened, hindering the normal operation of the computer and 
preventing the consumer from doing other tasks. Disturbingly, a 
consumer in such situations normally experiences increasingly 
sluggish computer performance, and in some cases inoperability, 
without any clear indication to him or her of either the nature 
of the problem, the responsible software, or the solution by 
which to remedy it.
    These performance issues are compounded by the inherent 
characteristic of most spyware programs to not only be 
difficult to find, but also difficult to remove. Often a user 
will not be aware, even after the fact, that spyware has been 
installed and is running because the software automatically 
operates in the background. Additionally, most spyware programs 
will not list themselves in the operating system's installed 
program list, which is the most common way consumers would find 
software that they wanted to remove from their computer. 
Instead, the software code that runs spyware is often 
intentionally dispersed into many separate file folders 
throughout the computer, which usually makes it difficult for 
even professional computer technicians to remove it completely 
once installed. Some spyware programs also use separate stand-
alone features, such as a ``tickler'', which can reinstall the 
program after a user has attempted to remove it. Other spyware 
programs, dubbed ``burrower'' programs, implant themselves so 
deeply into a computer's operating system that they cannot be 
found because they effectively hide behind standard operating 
system filenames.

                                 ADWARE

    One type of software program that some may refer to as 
spyware is more accurately described as ``adware''. Adware is 
software that resides on consumers' computers and serves 
advertisements to them based upon their Internet browsing 
habits. The ads are usually displayed in the form of pop-up 
graphical message boxes (or``windows'') separate from the web 
browser.\3\ Advertising executives typically refer to this more 
targeted means of advertising as ``contextual advertising'' because it 
is based on an individual consumer's preferences derived from the 
context of the webpages he or she actually views. For example, when a 
computer user types a search term into a browser or clicks on a link 
indicating some interest in a type of commercial activity, an adware 
program will typically cause a pop-up window--containing an 
advertisement, coupon, or both--to be displayed on the user's screen 
until he or she either acts on it (i.e., by clicking on a link in the 
ad) or otherwise closes the pop-up window (if possible). Like 
telemarketing, this type of advertising and the methods companies 
employ to deliver it have raised privacy concerns for consumers who do 
not wish to receive the ads.
---------------------------------------------------------------------------
    \3\ These windows may appear on top of the current webpage a user 
is viewing (``pop-over'' ads), or underneath a webpage being viewed so 
that the user will not see them until they close their browser window 
(``pop-under'' ads).
---------------------------------------------------------------------------
    Adware is normally bundled with free software that a 
consumer downloads to his or her computer. Adware distributors 
often describe the adware as pop-up ad or coupon programs that 
make the free distribution of the other software economically 
viable in the first place. Adware company executives also argue 
that their companies do not distribute ``spyware'' because they 
provide consumers with clear and concise notices about the 
nature of their software and require a consumer's affirmative 
consent (i.e., opt-in consent) before any adware programs are 
downloaded or installed. Additionally, some adware companies 
have provided testimony to the Committee explaining that their 
programs do not collect PII nor share any information about a 
user's computer with third parties. Rather, they testified, the 
ad-serving software resident on a computer is used only to 
monitor that user's web-browsing patterns in order to request a 
highly contextual ad to be served to the computer that is 
targeted to that user's known preferences.\4\
---------------------------------------------------------------------------
    \4\ Additionally, other kinds of advertisement-serving software may 
operate in real time and have no need to store or transmit PII that 
might be ephemerally collected in the process of serving an 
advertisement to a computer.
---------------------------------------------------------------------------
    Adware companies maintain that these advertising practices 
are not only legal and consistent with good software practices, 
but that they are also consistent with traditional advertising 
practices in other mediums as well. For example, adware 
companies point out that this business model of receiving 
advertisements in return for free content is similar to many 
other legal, advertising-supported business models such as free 
over-the-air television supported by TV commercials, free 
Internet services like online e-mail supported by banner ads, 
and free Internet access provided by ISPs that serve 
advertisements through a proprietary browser that the user is 
required to use to obtain Internet access. In each of these 
other models, adware companies claim that consumers have no 
control over the content, frequency, or length of time they are 
forced to view ads. In addition, they argue that in each of 
these other models, consumers face a stark choice: either 
receive the free content with the ads, or not at all. Adware 
companies therefore defend their model as no different than the 
others--you may remove the adware, but when you do, the free 
software with which it was bundled will also be removed. For 
these reasons, adware companies argue that software operating 
as their programs do should not be prohibited or regulated like 
spyware.
    Consumer advocacy groups and privacy experts argue in 
response, however, that the other forms of advertising are mass 
market advertising, and traditionally do not involve the 
collection of PII or the monitoring of users' off-site viewing 
habits in order to serve ads.\5\ Furthermore, these observers 
argue that adware practices raise privacy concerns that are not 
raised by traditional one-way, mass market advertising 
practices, a key difference which justifies closer scrutiny and 
regulation by the government. Finally, some commercial websites 
contend that adware programs have enabled their competitors' 
pop-over ads to be displayed on top of their webpages' content, 
raising concerns of unfair trade practices, consumer deception, 
and trademark infringement. Companies concerned about the 
competitive fairness of contextual advertising claim that 
customers are being confused by the pop-up ads, and that the 
adware distributors are unjustly enriching themselves by 
selling advertising space to companies on their competitors' 
websites without authorization. Industry observers who support 
adware-based business models counter that these issues of 
competitive fairness should be addressed in traditional forums, 
such as the courts, the Federal Trade Commission and the 
Department of Justice, and that these developing business 
models should not be prohibited preemptively by legislation.
---------------------------------------------------------------------------
    \5\ For example, when browsing a financial website, you may see ads 
for mortgage loans. However, the financial website typically will not 
serve you ads for herbal medicines (even if you normally browse medical 
sites) because the website typically does not track your viewing habits 
on webpages not hosted by that financial website.
---------------------------------------------------------------------------

              CURRENT EFFORTS TO ADDRESS CONSUMER CONCERNS

    Anti-spyware Software. In response to the growing 
proliferation of spyware and adware, manufacturers of privacy 
and security software are now offering anti-spyware software to 
consumers. Some of these companies have extensive previous 
experience creating firewall, anti-virus, or anti-spam 
software, and have begun including new anti-spyware features in 
their existing titles as they release the latest versions. 
Other companies have launched targeted anti-spyware programs 
specifically designed to address the more complex tasks 
associated with spyware. These programs may include features 
such as detecting, removing, and preventing users from 
unwittingly downloading spyware and other unknown malicious 
software that may threaten the user's privacy, or the security 
or operational integrity of the user's computer system.
    Operationally, anti-spyware applications act much like 
anti-virus software in that these programs are only able to 
find and remove spyware and other programs that have been 
identified by their programmers. The increasing proliferation 
of malicious programs, however, creates an overwhelming problem 
for anti-spyware programmers who have a difficult time keeping 
up with the onslaught of new variations of spyware. For 
example, PestPatrol, a leading anti-spyware program, only 
recognized six types of spyware programs at the beginning of 
2003, but within six months the company had identified over 
forty different types of spyware.\6\ Theseanti-spyware 
companies are facing an uphill battle very similar to the one fought by 
spam-filtering companies in their fight to keep spam out of users' e-
mail inboxes. As more investment dollars flow to privacy and security 
software developers, consumers can expect the release of many more 
titles of anti-spyware software that employ the latest technological 
means to combat spyware creators' ever-evolving techniques.
---------------------------------------------------------------------------
    \6\ PC Magazine, ``Special Report: Spyware and Identity Theft,'' 
March 2, 2004.
---------------------------------------------------------------------------
    Operating System and Internet Browser Upgrades. Microsoft 
recently released an operating system upgrade to its popular 
Windows XP system that contains the code for an enhanced-
security Windows Internet browser. This latest release, Service 
Pack 2 (or SP2), has been widely reported as a significant step 
in resolving numerous security issues found with previous 
versions of XP. It is expected that a number of the new 
features contained in SP2 will alleviate some of the problems 
experienced by consumers that have been attributable to 
spyware. In particular, SP2 provides a new firewall program for 
users. Unlike XP's earlier firewall, this one is automatically 
enabled as a default and protects every connection on a 
computer, even if a user already has third-party software 
firewalls running on the computer. The new system also monitors 
the activities of all computer programs that are running--if 
one of them attempts to open up a new channel of communication 
with the Internet, the user is prompted to first approve the 
action. This latter feature may help prevent the type of 
spyware that collects personal information and, unbeknownst to 
the user, surreptitiously transmits it through an open Internet 
connection to a destination where it may be stored. In addition 
to Microsoft's efforts, other developers of operating systems 
and Internet browsers are working to update their systems to 
provide better security from all Internet threats including 
spyware.
    Consumer Awareness of Safe Browsing Practices. Many public 
interest organizations and consumer advocacy groups that 
monitor Internet practices have begun initiatives to educate 
consumers about the proliferation and harmfulness of spyware. 
The Center for Democracy and Technology (CD&T), in particular, 
released a report in November 2003 entitled Ghosts in Our 
Machines: Background and Policy Proposals on the ``Spyware'' 
Problem.\7\ Much of the information on the spyware practices 
reported by CD&T has been previously summarized in the 
background section above, but the report also provides tips for 
computer users about what steps they can take today to protect 
their personal information and programs from spyware. For 
example, in addition to running spyware detection and removal 
utilities, CD&T recommends that consumers avoid installing 
free, ad-supported applications unless they are from a trusted 
party, particularly if the advertising component is provided by 
an unknown third party. CD&T also advises consumers to 
diligently monitor their Internet browsing, being mindful of 
webpages or pop-up ads with automated download procedures that 
may start running without their consent or active input. As 
suggest by the report, Internet users who wish to prevent 
spyware on their computers should raise the security level of 
their Internet browsers so that automated, self-executing 
downloads are prohibited.\8\
---------------------------------------------------------------------------
    \7\ Copies of this report may be obtained at http://www.cdt.org/
privacy/spyware.
    \8\ Using a browser's highest security setting, however, may cause 
the loss of some functionality, particularly on webpages that contain 
significant amounts of graphic or video content, or interactive 
features.
---------------------------------------------------------------------------
    In addition to consumer advocacy groups, government 
officials at the Federal Trade Commission and the Organization 
for Economic Co-operation and Development (OECD) have 
spearheaded efforts at both organizations to develop a set of 
understandable Internet security principles that should be 
publicly promoted and voluntarily adopted in order to keep 
consumers safe online.\9\ The spread of spyware and the 
proliferation of computer viruses are greatly aided by computer 
users' lack of awareness of the risks of such harmful programs. 
Through government and private efforts to strengthen consumer 
awareness of the potential risks arising from indiscriminately 
downloading unfamiliar software, the spread of spyware and 
malicious programs could potentially be reduced.
---------------------------------------------------------------------------
    \9\ The Federal Trade Commission's ``Stay Safe Online'' initiative 
and related resources can be viewed at http://www.ftc.gov/infosecurity.
---------------------------------------------------------------------------
    Software Industry Efforts. One of the concerns raised by 
business software companies with respect to proposed spyware 
legislation is that the definition of spyware must be narrowly 
tailored. If not, they explain, important business software 
relied on by corporate America will be unintentionally pulled 
into a web of burdensome regulatory practices that may not only 
prevent the software's most efficient use, but also limit its 
future innovation and development. Software industry efforts 
have therefore focused on identifying a set of industry best 
practices for the download, installation, and removal of 
software programs on consumers' computers in order to define 
legitimate practices that should remain free of regulation. 
Likewise, the industry's help in identifying ``unacceptable'' 
or deliberately criminal or deceptive trade practices will not 
only aid policymakers, but also will help consumer advocacy 
groups shape the message to consumers as to the type of 
suspicious software practices they should be mindful of while 
using a computer. Many spyware experts suggest that 
policymakers, consumer groups, and software developers should 
work cooperatively together to identify areas ripe for 
legislation, to improve consumer awareness of spyware-related 
problems, and to encourage safe online browsing and downloading 
practices.
    State Legislation. In 2004, several State legislatures 
considered, and in some cases passed, spyware legislation to 
address many of the deceptive practices outlined above. 
Industry representatives opposed to State legislation have 
argued that many of these spyware practices already violate 
existing Federal and State civil laws and regulations governing 
computer fraud and abuse, electronic privacy, and consumer 
protection, as well as criminal fraud laws. Industry observers 
supporting Federal legislation, however, contend that one 
uniform national law regulating spyware is necessary to preempt 
States from enacting 50 different laws in the future that may 
create uncertainty for business models or unintentionally 
capture legitimate software practices within the scope of their 
regulations.

                          Legislative History

    On February 27, 2004, Senator Burns introduced S. 2145, the 
``SPY BLOCK Act of 2004,'' which was referred to the Committee 
on Commerce, Science, and Transportation for consideration. The 
bill was originally cosponsored by Senators Wyden and Boxer, 
and is also cosponsored by Senator Clinton. Additionally, 
spyware legislation was introduced in the House of 
Representatives by Rep. Bono on July 25, 2003 (H.R. 2929), and 
by Rep. Goodlatte on June 23, 2004 (H.R. 4661).
    On March 23, 2004, the Committee's Communications 
Subcommittee held a hearing on S. 2145 at which Subcommittee 
Chairman Burns presided. Witnesses at the hearing included a 
diverse group of representatives from a company, an industry 
association, a public interest group, and a private party, each 
of whom had expertise on spyware, adware, and other Internet 
matters raising consumer protection concerns.
    On September 22, 2004, the Committee met in open executive 
session to consider an amendment in the nature of a substitute 
to S. 2145 offered by Senator Burns that made several 
substantive changes to the bill's provisions as introduced. 
Additionally, Senator Allen offered an amendment to add 
criminal penalties for using unauthorized software 
installations on a computer to engage in federal criminal 
activities or impair the computer's security protections. The 
amendments were adopted by voice vote and the bill, as amended, 
was ordered to be reported.

                            Estimated Costs

  In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, October 5, 2004.
Hon. John McCain,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2145, the SPY BLOCK 
Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Susanne S. 
Mehlman (for federal costs), and Sarah Puro (for the impact on 
state, local, and tribal governments).
            Sincerely,
                                        Elizabeth Robinson,
                               (For Douglas Holtz-Eakin, Director).
    Enclosure.

S. 2145--SPY BLOCK Act

    Summary: S. 2145 would prohibit the use of computer 
software (known as spyware) to collect personal information and 
to monitor the behavior of computer users without permission. 
Enacting S. 2145 could affect direct spending and receipts 
because those individuals who violate the provisions under this 
legislation could be subject to civil and criminal penalties. 
Based on information provided by the Federal Trade Commission 
(FTC), CBO estimates that implementing S. 2145 would not have a 
significant effect on revenues, direct spending, or spending 
subject to appropriation.
    S. 2145 contains intergovernmental mandates as defined in 
the Unfunded Mandates Reform Act (UMRA), but CBO estimates that 
the resulting costs for state, local, and tribal governments 
would be minimal and would not exceed the threshold established 
in UMRA ($60 million in 2004, adjusted annually for inflation).
    The bill would impose mandates on the private sector. CBO's 
analysis of the cost of those mandates will be provided later 
in a separate report.
    Estimated cost to the Federal Government: Enacting S. 2145 
could increase federal direct spending and revenues from the 
criminal and civil penalties assessed for violations under the 
bill's provisions, but CBO estimates that any new collections 
and subsequent spending would be less than $500,000 a year.
    Implementing the bill also could increase spending by the 
FTC and other federal agencies for law enforcement, subject to 
the availability of appropriated funds. However, due to the 
relatively small number of cases likely to be involved, CBO 
expects that any such increase would be insignificant.
    Estimated impact on state, local, and tribal governments: 
Section 8 would require the Attorney General of a state who 
files a civil suit against a person engaging in activities 
prohibited by this bill to notify the FTC and would grant the 
FTC the right to intervene in such a suit. This requirement on 
the officers of a state constitutes a mandate as defined in 
UMRA.
    Section 9(b) would preempt state laws that prohibit the use 
of certain types of computer software and would establish 
penalties for violators. Section 1030A would prohibit states 
from creating civil penalties that specifically reference the 
provisions of this bill. Those preemptions and prohibitions are 
mandates as defined in UMRA but would specifically preserve 
state authority to pursue fraud, trespass, contract, and tort 
cases under state law. They also would not prohibit states from 
enacting similar criminal and civil statutes.
    CBO estimates that any costs to state, local, or tribal 
governments would be insignificant and would fall significantly 
below the threshold established in UMRA ($60 million in 2004, 
adjusted annually for inflation).
    Estimated impact on the private sector: The bill would 
impose mandates on the private sector. CBO's analysis of the 
cost of those mandates will be provided later in a separate 
report.
    Previous CBO estimates: On July 8, 2004, CBO transmitted a 
cost estimate for H.R. 2929, the Securely Protect Yourself 
Against Cyber Trespass Act, as ordered reported by the House 
Committee on Energy and Commerce on June 24, 2004. In addition, 
on September 28, 2004, CBO transmitted a cost estimate for H.R. 
4661, the Internet Spyware (I-SPY) Prevention Act of 2004, as 
ordered reported by the House Committee on the Judiciary on 
September 8, 2004. All three pieces of legislation are similar, 
although H.R. 4661 would authorize the appropriation of funds 
to enforce its provisions. The intergovernmental mandates in S. 
2145 also were contained in H.R. 2929 and H.R. 4661.
    Estimate prepared by: Federal Costs: Susanne S. Mehlman. 
Impact on State, Local, and Tribal Governments: Sarah Puro.
    Estimate approved by: Robert A. Sunshine, Assistant 
Director for Budget Analysis.

                      Regulatory Impact Statement

  In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       NUMBER OF PERSONS COVERED

    S. 2145 would establish Federal regulations for certain 
practices that may result in spyware or other unwanted software 
being placed on consumers' computers without their consent. The 
bill would therefore cover every person or entity that causes 
the installation of software or the delivery of advertisements 
in a proscribed manner on consumers' computers, subject to 
certain limitations set forth in the legislation.

                            ECONOMIC IMPACT

    S. 2145 would require software distributors, websites, 
Internet service providers, and other online entities involved 
in the distribution, download, installation, operation, or 
removal of software, or in the delivery of advertisements in a 
certain manner, to comply with notice, consent, and removal 
requirements when causing the installation of software or 
delivery of advertisements in such manner on consumers' 
computers. Although such entities may already voluntarily 
provide notice, consent, and other protections for consumers, 
the legislation could nonetheless create compliance costs on 
such providers in the form of equipment upgrades or personnel 
additions in order to ensure that their practices satisfy the 
new federal requirements. Such expenditures may have an 
economic impact on such businesses and the software 
distribution or online advertising industries in general, and 
the costs may be passed on to Internet users through increased 
costs of software, Internet access, website premium fees, or 
other charges.

                                PRIVACY

    S. 2145 would likely increase consumer privacy by imposing 
limitations on the installation of software that may collect 
and transmit information about a user, a user's web-browsing 
habits, or other use of a computer without the user's consent 
or prior notice. Such restrictions should result in a reduced 
likelihood of Internet users having unwanted software installed 
on their computer and personal information shared without their 
consent. In this regard, the legislation is similar to online 
privacy legislation which the Committee has previously 
considered.

                               PAPERWORK

    S. 2145 is expected to have minimal or no impact on current 
paperwork levels.

                      Section-by-Section Analysis

Section 1. Short title

    Section 1 would set forth the short title of the 
legislation as the ``Software Principles Yielding Better Levels 
of Consumer Knowledge Act'' or the ``SPY BLOCK Act''.

Section 2. Prohibited practices in relation to software installation in 
        general

    Section 2 would prohibit certain installation and removal 
practices for computer software. Subsection (a) would prohibit 
the surreptitious installation of software by persons other 
than the authorized user of a computer. For purposes of this 
subsection, surreptitious installation would mean the 
installation of software in a manner that is designed either to 
conceal from the computer user the fact that the software is 
being installed or to prevent the user from having an 
opportunity to knowingly grant or withhold his or her consent 
to the installation.
    Subsection (b) would prohibit third parties wishing to 
install software on users' computers from using misleading 
inducements to achieve that result. For purposes of this 
subsection, misleading inducements to install would be inducing 
an authorized user of a computer to consent to the installation 
of software by making false representations about any of the 
following: the identity of an operator of an Internet website 
or online service at which the software is made available for 
download from the Internet; the identity of the author or 
publisher of the software; the nature or function of the 
software; or the consequences of not installing the software.
    Subsection (c) would prohibit the installation of software 
on a computer if such software could not be uninstalled or 
disabled by the reasonable efforts of the user. This 
prohibition would not, however, require that individual 
features or functions of a software program, updates to a 
previously installed software program, or software programs 
that were installed on a bundled basis be separately capable of 
being uninstalled or disabled on an individual basis.

Section 3. Installing surreptitious information collection features on 
        a user's computer

    Section 3 would prohibit software having surreptitious 
information collection features from being installed on a 
user's computer without first informing and obtaining the 
consent of the user.
    Specifically, this section would prohibit a person who is 
not an authorized user of a computer to cause the installation 
of software on that computer that collects and transmits 
information about an authorized user of the computer, or an 
authorized user's Internet browsing behavior or other use of 
the computer, to any other person, on an automatic basis or at 
the direction of a person other than the authorized user of the 
computer, if--
          (1) the software's collection and transmission of 
        such information is not functionally related to or in 
        support of a software capability or function that an 
        authorized user of the computer has chosen or consented 
        to execute or enable, and
          (2) either--
                  (A) there has been no notification to an 
                authorized user of the computer, prior to the 
                collection of such information, explaining the 
                type or manner of information collection, or
                  (B) if notice has been provided--
                          (i) it was not provided in a manner 
                        reasonably calculated to provide actual 
                        notice to an authorized user of the 
                        computer, or
                          (ii) it occurred at a time or in a 
                        manner that did not enable an 
                        authorized user of the computer to 
                        consider the information contained in 
                        the notification before choosing 
                        whether to permit the collection or 
                        transmission of information.
    This section also provides an exception to these 
requirements for software that is reasonably necessary to 
determine whether a user of a computer is licensed or 
authorized to use the software.

Section 4. Adware that conceals its operation

    Section 4 would prohibit adware that conceals its operation 
by delivering ads to a computer at a time or in a manner such 
that a reasonable user of the computer may not understand that 
the software is responsible for delivering the advertisements, 
and the ads do not contain a label or other reasonable means of 
identifying which software is responsible for its delivery.

Section 5. Other practices that thwart user control of computer

    Section 5 would prohibit certain practices that thwart user 
control of a computer. Under the provisions of this section, it 
would be unlawful for any person who is not the authorized user 
of a computer knowingly and without authorization--
           to utilize the computer to send unsolicited 
        information or material from the computer to other 
        computers;
           to divert the Internet browser of the 
        computer away from the website the user intended to 
        view to one or more other websites, unless such 
        diversion has been authorized by the website the user 
        intended to view;
           to display an advertisement, series of 
        advertisements, or other content through windows in the 
        computer's Internet browser in such a manner that the 
        user of the computer cannot end the display of such 
        advertisements or content without turning off the 
        computer or closing the Internet browser;
           to covertly modify settings relating to the 
        use of the computer or to the computer's access to or 
        use of the Internet, including--
                   altering the default webpage that 
                initially appears when a user of the computer 
                launches an Internet browser;
                   altering the default provider or web 
                proxy used to access or search the Internet;
                   altering bookmarks used to store 
                favorite Internet website addresses; or
                   altering settings relating to 
                security measures that protect the computer and 
                the information stored on the computer against 
                unauthorized access or use;
           to use software installed in violation of 
        section 3 to collect information about the user or the 
        user's Internet browsing behavior; or
           to remove, disable, or render inoperative a 
        security or privacy protection technology installed on 
        the computer.

Section 6. Limitations on liability

    Section 6 would limit the liability of any person who may 
inadvertently provide services, such as Internet access or web 
hosting services, over which prohibited software practices are 
conducted without their active participation in such practices. 
Under this section, a person would not be liable for violations 
of the Act solely because the person provided the Internet 
connection, telephone connection, or other transmission or 
routing function through which software was delivered to a 
protected computer for installation. Additionally, a person 
would not be liable for violations of the Act solely for 
providing storage for software or for hosting an Internet 
website through which such software was made available for 
installation to a computer. Finally, a person would not be 
liable for violations of the Act solely for providing an 
information location tool (i.e., a directory, index, reference, 
pointer, or hypertext link) through which a user of a protected 
computer located software available for installation.
    This section would also ensure that providers of a network 
or online service shall not be deemed to have violated sections 
3 or 5 of the Act for any installation, monitoring or use of 
software for the purposes of (1) protecting the security of the 
network, service, or computer, (2) facilitating diagnostics, 
technical support, maintenance, network management, or repair 
of the network or services, or (3) preventing or detecting 
unauthorized, fraudulent, or otherwise unlawful uses of the 
network or service.

Section 7. Administration and enforcement

    Section 7 would provide that the Act be enforced by the 
Federal Trade Commission (FTC) as if the violation of this Act 
were an unfair or deceptive act or practice proscribed by an 
FTC trade rule or regulation pursuant to the Commission's 
authority under section 18(a)(1)(B) of the FTC Act (15 U.S.C. 
57a(a)(1)(B)). The FTC would be required to prevent persons 
from violating this legislation in the same manner, by the same 
means, and with the same jurisdiction, powers, and duties as 
though all applicable terms and provisions of the FTC Act were 
incorporated and made a part of this legislation.
    This section would also provide for enforcement by other 
agencies for entities subject to their jurisdiction due to the 
jurisdictional limitations of the FTC. These agencies would be 
permitted under the Act to exercise authority provided by their 
own statutory grants to enforce the substantive provisions of 
this legislation.

Section 8. Actions by States

    Section 8 would grant State attorneys general the right to 
bring a civil action for violations of the Act. A State may 
bring an action in parens patriae for aggrieved residents of 
the State in a district court of the United States of 
appropriate jurisdiction to enjoin practices, enforce 
compliance with a rule that has been violated, obtain damage, 
restitution or other compensation on behalf of its residents, 
or obtain such other relief as the court may consider 
appropriate.
    Except where an attorney general determines that it is not 
feasible prior to the filing of an action, this section would 
require a State to provide the FTC with written notice of the 
action and a copy of the complaint for that action prior to its 
filing. In the event such prior notification is not feasible, 
the State would be required to provide such notification 
simultaneously with the filing of the action. Upon receipt of 
the notice, the FTC would have the right to intervene in the 
action, and if it intervenes, would have the further rights to 
be heard with respect to any matter that arises in that action 
and to file a petition for appeal.

Section 9. Effect on other laws

    Section 9 would clarify the effect the legislation would 
have on current Federal and State law. This section would set 
forth that nothing in the Act should be construed to limit or 
affect in any way the FTC's authority to bring enforcement 
actions or take any other measures under the FTC Act or any 
other provision of law.
    Additionally, this section would provide a general rule 
preempting any State statute, regulation, or rule that 
expressly limits or restricts the installation or use of 
software (1) to collect information about the user of the 
computer, or the user's Internet browsing behavior or other use 
of the computer, or (2) to cause advertisements to be delivered 
to the user of the computer. Exceptions to this general rule of 
preemption would be provided for State laws that prohibit 
deception in connection with the installation or use of such 
software and any other State laws not specific to software, 
including State trespass, contract, tort, or anti-fraud law.

Section 10. Penalties for certain unauthorized activities relating to 
        computers

    Section 10 would provide criminal liability for certain 
acts carried out using software without the authorization of 
the user of the computer. This section would make it a crime to 
intentionally access a computer without authorization, or 
intentionally exceed authorized access, by causing a computer 
program or code to be copied onto the computer and using that 
program or code in furtherance of another federal criminal 
offense. Such conduct would be punishable by fine or 
imprisonment for up to 5 years. Additionally, this section 
would make it a crime to intentionally access a computer 
without authorization, or intentionally exceed authorized 
access, by causing a computer program or code to be copied onto 
the computer and using that program or code to intentionally 
impair the security protections of a computer. Such conduct 
would be punishable by fine or imprisonment for up to 2 years.
    Section 10 would also provide the same limitations on 
liability for purposes of this section's provisions that are 
provided under section 6 for purposes of the bill's civil 
provisions. Specifically, under these limitations on liability, 
providers of certain services, such as Internet access, website 
hosting, website indexing, or network monitoring services, 
would not be criminally liable under this section solely for 
providing those services through which software may be used in 
violation of this section. This section would also prohibit the 
bringing of State civil actions under the law of any State 
where the action is premised in whole or in part on the 
defendant's violating this section. For purposes of this 
section, then term ``State'' would include the District of 
Columbia, Puerto Rico, and any other territory or possession of 
the United States.

Section 11. Definitions

    Section 11 would define 10 terms used throughout the Act. 
The following definitions included in the Act are of particular 
importance to understanding the legislation and the explanation 
of the Act's provisions provided in this section-by-section 
analysis:
          Software. The term ``software'' would mean any 
        program designed to cause a computer to perform a 
        desired function or functions. Such term would not 
        include a cookie, as defined in this section.
          Cookie. The term ``cookie'' would mean a text file 
        that is placed on a computer by an ISP, an interactive 
        computer service, or Internet website, the sole 
        function of which is to record information that can be 
        read or recognized when the user of the computer 
        subsequently accesses particular websites or online 
        locations or services.
          Install. The term ``install'' would mean to write 
        computer software to a computer's persistent storage 
        medium, such as the computer's hard disk, in such a way 
        that the computersoftware is retained on the computer 
after the computer is turned off and subsequently restarted. The term 
``install'' would also mean to write computer software to a computer's 
temporary memory, such as random access memory, in such a way that the 
software is retained and continues to operate after the user of the 
computer turns off or exits the Internet service, interactive computer 
service, or Internet website from which the computer software was 
obtained.
          Cause the installation. The term ``cause the 
        installation'' would mean to knowingly provide the 
        technical means by which the software is installed, or 
        to knowingly induce or pay or provide other 
        consideration to another person to do so.

Section 12. Effective date

    Section 12 would provide that the provisions of this 
legislation would take effect 180 days after the date of 
enactment.

                        Changes in Existing Law

  In compliance with paragraph 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill, 
as reported, are shown as follows (existing law proposed to be 
omitted is enclosed in black brackets, new material is printed 
in italic, 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. 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 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 intentionally impairs the security protection 
of the protected computer shall be fined under this title or 
imprisoned not more than 2 years, or both.
  (c) A person shall not violate this section who solely 
provides--
          (1) an Internet connection, telephone connection, or 
        other transmission or routing function through which 
        software is delivered to a protected computer for 
        installation;
          (2) the storage or hosting of software, or of an 
        Internet website, through which software is made 
        available for installation to a protected computer; or
          (3) an information location tool, such as a 
        directory, index, reference, pointer, or hypertext 
        link, through which a user of a protected computer 
        locates software available for installation.
  (d) A provider of a network or online service that an 
authorized user of a protected computer uses or subscribes to 
shall not violate this section by any monitoring of, 
interaction with, or installation of software for the purpose 
of--
          (1) protecting the security of the network, service, 
        or computer;
          (2) facilitating diagnostics, technical support, 
        maintenance, network management, or repair; or
          (3) preventing or detecting unauthorized, fraudulent, 
        or otherwise unlawful uses of the network or service.
  (e) 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.

                                  
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