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[Senate Report 109-262]
[From the U.S. Government Publishing Office]

109th Congress                                                   Report
                                 SENATE
 2nd Session                                                    109-262
_______________________________________________________________________

                                     

                                                       Calendar No. 467
 
  SOFTWARE PRINCIPLES YIELDING BETTER LEVELS OF CONSUMER KNOWLEDGE ACT

                               __________

                              R E P O R T

                                 of the

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                 S. 687

DATE deg.June 12, 2006.--Ordered to be printed
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                       one hundred ninth congress
                             second session

                     TED STEVENS, Alaska, Chairman
                 DANIEL K. INOUYE, Hawaii, Co-Chairman
JOHN McCAIN, Arizona                 JOHN D. ROCKEFELLER IV, West 
CONRAD BURNS, Montana                    Virginia
TRENT LOTT, Mississippi              JOHN F. KERRY, Massachusetts
KAY BAILEY HUTCHISON, Texas          BYRON L. DORGAN, North Dakota
OLYMPIA J. SNOWE, Maine              BARBARA BOXER, California
GORDON H. SMITH, Oregon              BILL NELSON, Florida
JOHN ENSIGN, Nevada                  MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia               FRANK LAUTENBERG, New Jersey
JOHN E. SUNUNU, New Hampshire        E. BENJAMIN NELSON, Nebraska
JIM DeMINT, South Carolina           MARK PRYOR, Arkansas
DAVID VITTER, Louisiana
                    Lisa Sutherland, Staff Director
             Christine Drager Kurth, Deputy Staff Director
                    Kenneth Nahigian, Chief Counsel
     Margaret Cummisky, Democratic Staff Director and Chief Counsel
 Samuel Whitehorn, Democratic Deputy Staff Director and General Counsel

                                                       Calendar No. 467
109th Congress                                                   Report
                                 SENATE
 2nd Session                                                    109-262

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

  SOFTWARE PRINCIPLES YIELDING BETTER LEVELS OF CONSUMER KNOWLEDGE ACT

                                _______
                                

                 June 12, 2006.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 687]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill joint resolution deg. (S. 
687) 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 
unfair or deceptive software and online practices that may 
result in spyware, adware or other unwanted software 
surreptitiously being placed on consumers' computers. The 
Committee substitute amended S. 687 to focus on unfair and 
deceptive practices involving software, not on legitimate 
software applications or legitimate uses of information. The 
legislation would prohibit the unauthorized installation of 
software that: (1) takes control of or modifies a user's 
computer or prevents reasonable efforts by the user to block, 
disable, or uninstall such software, (2) collects sensitive 
personal information without the user's prior consent, (3) 
collects and transmits personally identifiable information 
without prior disclosure to, or the knowledge of the user, and 
(4) causes advertising windows to appear on the user's 
computer, except when certain conditions are met or exceptions 
apply. The legislation also would clarify that the installation 
of software on a user's computer shall be considered an unfair 
or deceptive practice in violation of section 5 of the Federal 
Trade Commission Act (15 U.S.C. 41 et seq.), and provide a 
uniform national standard governing regulation of spyware and 
adware without overriding State common law or generally 
applicable consumer protection law. The legislation would not 
inhibit ``anti-spyware'' software programs that remove spyware 
from user computers.

                         Summary of Provisions

  S. 687, the SPYBLOCK Act of 2005, would provide consumers 
with protection against the unauthorized installation of 
software commonly referred to as ``spyware'' that takes control 
of a computer, modifies settings on a computer for various 
improper purposes, and evades user efforts to uninstall the 
software. The legislation also would provide a disclosure and 
consent regime for the collection of sensitive personal 
information by software programs and a disclosure regime for 
personally identifiable information that is collected. It also 
would prohibit adware that cannot be uninstalled and that does 
not identify that it is triggering advertisements. Specific 
exceptions are included to protect legitimate software 
functionality.

                          Legislative History

  On March 20, 2005, Senator Burns introduced S. 687, the 
``SPYBLOCK Act of 2005.'' Senators Wyden and Boxer were 
original co-sponsors, and were later joined by Senators Snowe 
and Bill Nelson. On May 11, 2005, Senator Allen introduced S. 
1004, the ``Enhanced Consumer Protection Against Spyware Act of 
2005'', with Senators Ensign and Smith as original co-sponsors. 
Senators DeMint, Enzi and Sununu also co-sponsored S. 1004. On 
May 11, 2005, the Full Committee held a hearing on the topic of 
spyware. Witnesses included industry associations, anti-Spyware 
companies, consumer groups, and others. On October 5, 2005, the 
Trade, Tourism and Economic Development Subcommittee held 
another hearing on Spyware, with Chairwoman Majoras of the 
Federal Trade Commission (FTC or Commission) as the sole 
witness.
  On November 17, 2005, the Committee met in open Executive 
Session to consider an amendment in the nature of a substitute 
to S. 687 offered by Senator Burns. This amendment was adopted 
14-8 by a roll call vote. An amendment in the nature of a 
substitute offered by Senator Allen to substitute the text of 
S. 1004 was defeated by a 13-9 roll call vote. Senator Sununu 
offered an amendment, which was accepted on voice vote. Senator 
Sununu's amendment would double the FTC penalties for an unfair 
or deceptive act or practice that exploits popular reaction to 
a national emergency, major disaster, or international 
disaster. 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:

                                                  December 12, 2005
Hon. Ted Stevens,
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. 687, a bill 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.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Melissa Z. 
Petersen (for federal costs), Sarah Puro (for the impact on 
state and local governments), and Paige Piper/Bach (for the 
impact on the private sector.
            Sincerely,
                                       Douglas Holtz-Eakin,
                                                          Director.
    Enclosure
S. 687--A bill 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
    Summary: S. 687 would prohibit the use of computer software 
(known as spyware) to collect personal information and to 
monitor the behavior of computer users without a user's 
consent. The Federal Trade Commission (FTC) would be directed 
to enforce this bill's provisions relating to spyware. S. 687 
also would direct the FTC to assess and collect civil penalties 
for violations of laws relating to spyware and for unfair or 
deceptive business practices committed during designated 
emergency periods. (Civil penalties are recorded in the federal 
budget as revenues.) Finally, S. 687 would establish criminal 
penalties for certain unauthorized uses of a computer. 
(Collections of criminal fines are recorded in the budget as 
revenues, deposited in the Crime Victims Fund, and spent in 
subsequent years.)
    Based on information provided by the FTC, CBO estimates 
that enacting S. 687 would not have a significant effect on 
revenues or direct spending. Assuming appropriation of the 
necessary amounts, CBO estimates that implementing the bill 
would cost about $1 million in 2006 and about $7 million over 
the 2006-2010 period.
    S. 687 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 ($62 million in 2005, adjusted annually for inflation).
    S. 687 would impose private-sector mandates, as defined in 
UMRA, on persons who cause the installation of certain software 
on computers owned by another person. Based on information from 
the industry and the FTC, CBO expects that the aggregate direct 
cost to comply with those mandates would be small and fall 
below the annual threshold established by UMRA for private-
sector mandates ($123 million in 2005, adjusted annually for 
inflation).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 687 is shown in the following table. The 
costs of this legislation fall within budget function 370 
(commerce and housing credit).

----------------------------------------------------------------------------------------------------------------
                                                                    By fiscal year, in millions of dollars--
                                                               -------------------------------------------------
                                                                  2006      2007      2008      2009      2010
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated authorization level.................................         1         1         1         2         2
Estimated outlays.............................................         1         1         1         2         2
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that the 
bill will be enacted in 2006. We also assume that amounts 
needed to implement S. 687 will be appropriated for each year 
and that outlays will follow historical trends for similar 
programs. Implementing the bill would increase spending by the 
FTC for enforcing the bill's provisions related to spyware, 
subject to the availability of appropriated funds. Based on 
information from the agency, CBO estimates that such activities 
would cost about $1 million 2006 and about $7 million over the 
2006-2010 period.
    Enacting S. 687 could increase federal revenues from civil 
penalties assessed for violating laws related to spyware and 
from increasing penalties assessed for unfair or deceptive 
business practices committed during designated emergency 
periods. Collections of civil fines are recorded in the budget 
as revenues. Based on information provided by the FTC, CBO 
estimates that any new collections would be less than $500,000 
a year.
    Enacting S. 687 also could increase federal revenues as a 
result of increasing the maximum civil penalty assessed for 
certain unauthorized uses of computers. Collections of criminal 
fines are recorded in the budget as revenues, deposited in the 
Crime Victims Fund, and spent in subsequent years. Based on 
information provided by the FTC, CBO expects that under S. 687 
any additional receipts and direct spending would total less 
than $500,000 each year.
    Estimated impact on state, local, and tribal governments: 
S. 687 contains intergovernmental mandates as defined in UMRA, 
but CBO estimates that any costs to state, local, or tribal 
governments would be insignificant and would fall significantly 
below the threshold established in UMRA ($62 million in 2005, 
adjusted annually for inflation).
    Section 109 would require the Attorney General of a state 
who files a civil suit 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 11 (b) would preempt state laws that prohibit the 
use of certain types of computer software and would establish 
penalties for violators. Section 110(b) would prohibit states 
from creating civil penalties that specifically reference the 
statute. These preemptions and prohibitions, while mandates as 
defined in UMRA, are narrow and would specifically preserve 
state authority to pursue fraud, trespass, contract, and tort 
cases under state law. They also would not prohibit states from 
passing similar criminal and civil statutes.
    Estimated impact on the private sector: S. 687 would impose 
private-sector mandates, as defined in UMRA, on persons who 
cause the installation of certain software on computers owned 
by another person. Based on information from the industry and 
the FTC, CBO expects that the aggregate direct cost to comply 
with those mandates would be small and fall below the annual 
threshold established by UMRA for private-sector mandates ($123 
million in 2005, adjusted annually for inflation).
    The bill would impose mandates on persons who cause the 
installation of software that can be used to collect 
information from or take control of a computer without the 
consent of the authorized user. Currently, the FTC is 
prosecuting various cases against persons who cause the 
unauthorized installation of software on another person's 
computer under the unfair or deceptive practices provisions of 
the Federal Trade Commission Act. The bill would impose new 
private-setor mandates on persons to the extent that its 
provisions would prohibit activities allowed under current law. 
According to the FTC, the requirements contained in this bill 
represent only marginal changes to current law, if any. Based 
on information from the industry and the FTC, CBO expects that 
the aggregate direct cost to comply with any incremental 
requirements in the bill would be small and fall below UMRA's 
annual threshold for private-sector mandates.
    Estimate prepared by: Federal costs: Melissa Z. Petersen; 
impact on state, local, and tribal governments: Sarah Pauro; 
impact on the private sector: Paige Piper/Bach.
    Estimate approved by: Peter H. Fontaine, Deputy 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. 687 would establish Federal regulations for certain 
practices that may result in spyware, adware, or other types of 
unwanted software being placed or hidden on consumers' 
computers without their knowledge or consent. The bill would, 
therefore, cover persons or entities that cause the 
installation of such software in a proscribed manner on 
consumers' computers, subject to certain limitations set forth 
in the legislation.

                            ECONOMIC IMPACT

  S. 687 would require software distributors, websites, and 
other online entities involved in the distribution, download, 
installation, operation, or removal of software programs, or in 
the delivery of advertisements through adware programs, to 
comply with the consumer safeguards set forth. Many companies 
already may refrain from the practices prohibited by the 
legislation or voluntarily provide protections for consumers 
that would be sufficient to avoid potential liability. Overall, 
the reduction of spyware should have a positive impact on 
consumer confidence and electronic commerce. The legislation 
could create compliance costs for some companies in the form of 
software 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, 
which could be passed on to consumers.

                                PRIVACY

  S. 687 likely would increase consumer privacy by imposing 
limitations on the installation of software that may 
surreptitiously collect and transmit sensitive personal 
information or personally identifiable information.

                               PAPERWORK

  S. 687 is expected to have minimal or no impact on current 
paperwork levels.

                      Section-by-Section Analysis

                            TITLE I--SPYWARE

Section 101. Short title
  Section 101 would set forth the short title for the bill as 
the ``Software Principles Yielding Better Levels of Consumer 
Knowledge Act'' or the ``SPY BLOCK Act''.
Section 102. FTC authority to combat deceptive acts or practices 
        relating to spyware
  Section 102 would clarify that the installation of software 
shall be considered an unfair or deceptive act or practice in 
violation of section 5 of the FTC Act. It also would make clear 
that title I does not limit the range of unfair or deceptive 
acts or practices that violate the FTC Act to those acts or 
practices that are enumerated in the bill.
Section 103. Prohibited behaviors
  Section 103 would prohibit the unauthorized installation of 
software that: (1) takes control of a computer, (2) modifies 
settings on a computer for various improper purposes, or (3) 
evades user efforts to decline installation or disable or 
uninstall software.
  Specifically, paragraph (1) addresses:
          (A) ``zombies'' software that takes control of a 
        computer connected to a network to transmit or relay 
        spam or computer viruses from that computer without the 
        authorization of an authorized user of the computer;
          (B) ``modem hijacking'' software that accesses or 
        uses an authorized user's modem or Internet service for 
        the purpose of causing either damage or fees to be 
        incurred;
          (C) ``denial of service attacks'' software that uses 
        multiple computers for the purpose of causing damage to 
        other computers; and
          (D) ``endless loop pop-up advertisement'' software 
        that opens multiple pop-up advertising windows on a 
        user's computer without the authorization of the user. 
        This prohibition would not cover communications 
        originated by the computer's operating system, by 
        software the user knowingly chooses to activate, by a 
        service the user chooses to activate, or for any of the 
        purposes addressed in section 106.
  Specifically, paragraph (2) addresses:
          (A) ``enabling identity theft'' by modifying the 
        security or other settings related to access or use of 
        the Internet that protect information about the 
        authorized user;
          (B) ``disabling security'' by modifying the security 
        settings of a networked computer for the purpose of 
        causing damage to the computer or another computer; and
          (C) ``browser settings'' by modifying the authorized 
        user's home page, default Internet access or search 
        provider, search bookmarks, or web proxy through which 
        the authorized user's Internet traffic flows.
  Specifically, paragraph (3) addresses:
          (A) ``falsifying option to decline installs'' by 
        preventing, without permission of the authorized user, 
        a user's reasonable efforts to prevent installation of, 
        disable, or uninstall software; and
          (B) ``evading uninstalls by unfair or deceptive 
        means'' by misrepresenting that the software has been 
        removed or creating obstacles to the removal of the 
        software.
Section 104. Installing personal information collection features on a 
        user's computer
  Subsection (a) would prohibit causing the installation on a 
user's computer of software that collects sensitive personal 
information without first providing clear and conspicuous 
disclosure to the user and obtaining the user's consent. It 
would require disclosure and consent to extract from the 
computer an authorized user's social security number, tax 
identification number, driver's license number, passport 
number, other government-issued identification number, as well 
as financial account or credit or debit card number, account 
balance or overdraft history or other sensitive personal 
information. It is not the Committee's intent that disclosure 
and consent be required each time that such a piece of data is 
collected so long as disclosure and consent to such an ongoing 
practice is provided and is consistent with such disclosure and 
the consumer's reasonable expectations.
  Subsection (b) would prohibit causing the installation of 
four types of software that collect personally identifiable 
information if they are installed without providing clear and 
conspicuous notice to the user or without the knowledge of the 
user and for a purpose unrelated to any of the purposes of the 
software or service described to the user. Subsection (b)(1) 
addresses keystroke logging functions that record all or 
substantially all of the keystrokes made on the computer. 
Subsection (b)(2) addresses surreptitiously installing a 
software program that collects a history of all or 
substantially all of the websites the user visits and 
correlates it with personally identifiable information. 
Subsection (b)(3) addresses extracting from the computer's 
storage medium the substantive contents of files, data, 
software or other information that an authorized user has 
knowingly saved or installed and extracting from the computer's 
storage medium the substantive contents of communications sent 
from the computer to other computers. This would not include 
``data that provide a purely technical function''.
  Subsection (c) would provide an exemption permitting the 
installation of software that collects information for the 
provider of an online service or website that the user 
knowingly has used or subscribed to if the information is used 
only to affect the user's experience while using the online 
service or website.
   Subsection (d)(1) would prohibit causing the installation of 
software that performs any of the functions described in 
subsections (a) or (b) if the software cannot be uninstalled or 
disabled through a program removal function that is usual and 
customary with the computer's operating system. Subsection 
(d)(2) would exempt programs that allow one authorized user of 
a computer to prevent other authorized users from uninstalling 
or disabling the program, provided that at least one authorized 
user (such as a system administrator or parent) retains the 
ability to uninstall or disable the program. This subsection 
also would make clear that the uninstall requirement does not 
require that the user be able separately to uninstall different 
features or functions, upgrades, or elements of a software or 
software/hardware bundle.
Section 105. Adware that conceals its operation
  Subsection (a) would prohibit causing the installation of 
software that triggers advertising windows to appear on a 
user's computer regardless of whether any other functionality 
of the software is activated by the user or conspicuously 
active on the computer unless the software complies with 
subsection (b).
  Subsection (b) would provide an exception to the prohibition 
in subsection (a) if a clear and conspicuous label identifying 
to the user which software is responsible for the ads' delivery 
and a clear and conspicuous hypertext link to instructions 
regarding how to uninstall the adware program are present.
  Subsection (c) would clarify that the labeling requirements 
of this section do not apply to advertising software that 
displays ads only when the user accesses a particular website 
or service that either: (1) is owned or operated by the author 
or publisher of the software or (2) the owner or operator has 
authorized the display of the ads.
Section 106. Limitations on liability
  Subsection (a) would ensure that monitoring or interaction, 
by means of a software program, with a subscriber's computer or 
network connection or service by or at the direction of a 
telecommunications carrier, cable operator, provider of 
computer hardware or software, financial institution, provider 
of an information service, or of an interactive computer 
service would be exempt from the restrictions in sections 103, 
104, and 105 of the Act if performed for: (1) network of 
computer security, (2) diagnostics, (3) technical support, (4) 
repair, (5) network management, (6) authorized updates, (7) 
authorized remote system management, (8) authorized protection 
of users from objectionable content, (9) authorized scanning 
for software used in violation of sections 103, 104, or 105 for 
removal by an authorized user, or (10) preventing or detecting 
unauthorized use of software, fraudulent, or other unlawful 
activities.
  Subsection (b) would exempt manufacturers and retailers of 
computers from potential liability for causing the installation 
of pre-installed, third-party branded software unless the 
manufacturer or retailer uses the software to collect 
information about a user or his or her use of the computer, or 
knows that the software will display advertisements of the 
manufacturer or retailer, or derives a direct financial benefit 
from other advertisements displayed on the computer.
  Subsection (c) would clarify that nothing in title I 
prohibits lawful investigative, protective or intelligence 
activity--for example, placing a keystroke logging program on 
the computer of a person who is the target of a law enforcement 
investigation, where permitted by law.
  Subsection (d) would clarify that it is not a violation of 
title I for a multichannel video programming distributor to use 
a navigation device to provide service, or to collect or 
disclose subscriber information if such practices are covered 
by the Communications Act of 1934.
Section 107. FTC Administration and enforcement
  Subsection (a) would provide that the Act would be enforced 
by the 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 Federal Trade Commission Act (15 U.S.C. 
57a(a)(1)(B)), except as provided in sections 108, 109, and 110 
of the Act.
  Subsection (b) would permit the FTC to obtain up to treble 
the penalties authorized under section 5 of the FTC Act and to 
seek a civil penalty for a pattern or practice of activity 
violating this Act of not more than $3 million for each 
violation.
  Subsections (c) and (d) would give the Commission authority 
to seek seizure and forfeiture of the assets of a violator 
attributable to a violation of title I, and to require 
disgorgement of ill-gotten gains procured through unfair or 
deceptive acts or practices in violation of title I.
  Subsection (e) would charge the FTC with enforcing this Act 
as it would the Federal Trade Commission Act and clarify that 
this Act does not limit the FTC's existing authority.
Section 108. Enforcement by other agencies
  This section would 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 109. State enforcement
  Subsection (a) would provide State attorneys general the 
right to bring a civil action for violations of title I. 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 damages, 
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, subsection (b) 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 right to 
be heard with respect to any matter that arises in that action 
and to file a petition for appeal.
Section 110. Other enforcement
  Subsection (a) would provide a civil right of action for 
telecommunications carriers who incur costs as a result of 
modem-hijacking. The carrier could recover the charges it is 
obligated to pay other carriers or information service 
providers as a result of the violation, the costs of handling 
customer inquiries or complaints, costs and reasonable 
attorney's fees and an order to enjoin the violation.
  Subsection (b) would preclude any person from bringing a 
lawsuit under State or local law--such as a State unfair or 
deceptive trade practice statute that provides for a private 
right of action for violations of Federal law--premised in 
whole or in part upon the defendant's violating this Act.
Section 111. Effect on other laws
  Subsection (a) would clarify 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.
  Subsection (b) would provide a general rule preempting any 
statute, regulation, or rule of a State or political 
subdivision that relates to or confers a remedy for (1) the 
installation or use of software to deliver advertisements to a 
protected computer, (2) the installation or use of software to 
collect information about a user of a protected computer, or 
the user's use of that computer, (3) the installation or use of 
software to allow a person other than an authorized user to 
direct or control a protected computer, or (4) the method or 
way of uninstalling or disabling software that performs any of 
the three functions described above.
  Subsection (c) would provide that title I does not preempt 
actions or remedies based upon a State's generally applicable 
common law or any provision of generally applicable State 
consumer protection law.
Section 112. Definitions
  Section 112 would define ``advertising window'', ``authorized 
user'', ``bundle'', ``cause the installation'', ``commission'', 
``cookie'', ``damage'', ``install'', ``loss'', ``person'', 
``protected computer'', ``personally identifying information'', 
``sensitive personal information'', ``software'' and ``unfair 
or deceptive act or practice''.
Section 113. Criminal penalties for certain unauthorized activities 
        relating to computers
  Section 113 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 five years or both. 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 two years or both.
  Section 113 would provide an exemption from criminal 
liability for individuals and network providers under certain 
circumstances.
Section 114. Effective date
  Section 114 would provide that the provisions of title I 
would take effect 180 days after the date of enactment.

                TITLE II--INCREASE IN CERTAIN PENALTIES

  Section 201. Increase in penalties for unfair or deceptive 
act or practices exploiting reaction to certain emergencies and 
major disasters.
  Subsection (a) would double the civil penalty for engaging in 
an unfair or deceptive act or practice in violation of section 
5 of the Federal Trade Commission Act committed during national 
emergency period, international disaster or disaster period.
  Subsection (b) would provide for a penalty of up to $22,000 
for each violation of section 13 of the Federal Trade 
Commission Act committed during national emergency, 
international disaster or disaster period.
  ``National emergency period'' describes the a one year period 
beginning with the President declaring a national emergency 
under the National Emergencies Act.
  ``Disaster period'' describes the one year period beginning 
with the President declaring an emergency or major disaster 
under the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act.
  ``International Disaster'' describes any natural or man-made 
disaster in which the President furnishes assistance to a 
foreign country, international organization or private 
voluntary organization pursuant to the Foreign Assistance Act.

                      Rollcall Votes in Committee

  In accordance with paragraph 7(c) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following description of the record votes during its 
consideration of S. 687:

  Senator Burns offered an amendment in the nature of a 
substitute. By rollcall vote of 14 yeas and 8 nays as follows, 
the amendment was adopted:
        YEAS--14                      NAYS--8
Mr. Burns                           Mr. McCain\1\
Mr. Lott\1\                         Mr. Smith
Mrs. Hutchison                      Mr. Ensign
Ms. Snowe\1\                        Mr. Allen
Mr. Inouye                          Mr. Sununu
Mr. Rockefeller\1\                  Mr. DeMint
Mr. Kerry\1\                        Mr. Vitter\1\
Mr. Dorgan\1\                       Mr. Nelson of Nebraska
Mrs. Boxer\1\
Mr. Nelson of Florida
Ms. Cantwell
Mr. Lautenberg\1\
Mr. Pryor
Mr. Stevens

    \1\By proxy

  Senator Allen offered an amendment in the nature of a 
substitute to substitute the text of S. 1004. By rollcall vote 
of 9 yeas and 13 nays as follows, the amendment was defeated:
        YEAS--9                       NAYS--13
Mr. McCain\1\                       Mr. Burns
Mr. Smith                           Mr. Lott\1\
Mr. Ensign                          Mrs. Hutchison
Mr. Allen                           Ms. Snowe
Mr. Sununu                          Mr. Inouye
Mr. DeMint                          Mr. Rockefeller\1\
Mr. Vitter\1\                       Mr. Kerry\1\
Ms. Cantwell                        Mr. Dorgan\1\
Mr. Nelson of Nebraska              Mrs. Boxer\1\
                                    Mr. Nelson of Florida
                                    Mr. Lautenberg\1\
                                    Mr. Pryor
                                    Mr. Stevens

    \1\By proxy

                        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):

                      FEDERAL TRADE COMMISSION ACT

SEC. 5. UNFAIR METHODS OF COMPETITION UNLAWFUL; PREVENTION BY 
                    COMMISSION.

                             [15 U.S.C. 45]

  (a) Declaration of unlawfulness; power to prohibit unfair 
practices; inapplicability to foreign trade.--
          (1) Unfair methods of competition in or affecting 
        commerce, and unfair or deceptive acts or practices in 
        or affecting commerce, are hereby declared unlawful.
          (2) The Commission is hereby empowered and directed 
        to prevent persons, partnerships, or corporations, 
        except banks, savings and loan institutions described 
        in section 18(f)(3), Federal credit unions described in 
        section 18(f)(4), common carriers subject to the Acts 
        to regulate commerce, air carriers and foreign air 
        carriers subject to the Federal Aviation Act of 1958, 
        and persons, partnerships, or corporations insofar as 
        they are subject to the Packers and Stockyards Act, 
        1921, as amended, except as provided in section 406(b) 
        of said Act, from using unfair methods of competition 
        in or affecting commerce and unfair or deceptive acts 
        or practices in or affecting commerce.
          (3) This subsection shall not apply to unfair methods 
        of competition involving commerce with foreign nations 
        (other than import commerce) unless--
                  (A) such methods of competition have a 
                direct, substantial, and reasonably foreseeable 
                effect--
                          (i) on commerce which is not commerce 
                        with foreign nations, or on import 
                        commerce with foreign nations; or
                          (ii) on export commerce with foreign 
                        nations, of a person engaged in such 
                        commerce in the United States; and
                  (B) such effect gives rise to a claim under 
                the provisions of this subsection, other than 
                this paragraph. If this subsection applies to 
                such methods of competition only because of the 
                operation of subparagraph (A)(ii), this 
                subsection shall apply to such conduct only for 
                injury to export business in the United States.
  (b) Proceeding by Commission; modifying and setting aside 
orders.-- Whenever the Commission shall have reason to believe 
that any such person, partnership, or corporation has been or 
is using any unfair method of competition or unfair or 
deceptive act or practice in or affecting commerce, and if it 
shall appear to the Commission that a proceeding by it in 
respect thereof would be to the interest of the public, it 
shall issue and serve upon such person, partnership, or 
corporation a complaint stating its charges in that respect and 
containing a notice of a hearing upon a day and at a place 
therein fixed at least thirty days after the service of said 
complaint. The person, partnership, or corporation so 
complained of shall have the right to appear at the place and 
time so fixed and show cause why an order should not be entered 
by the Commission requiring such person, partnership, or 
corporation to cease and desist from the violation of the law 
so charged in said complaint. Any person, partnership, or 
corporation may make application, and upon good cause shown may 
be allowed by the Commission to intervene and appear in said 
proceeding by counsel or in person. The testimony in any such 
proceeding shall be reduced to writing and filed in the office 
of the Commission. If upon such hearing the Commission shall be 
of the opinion that the method of competition or the act or 
practice in question is prohibited by this Act, it shall make a 
report in writing in which it shall state its findings as to 
the facts and shall issue and cause to be served on such 
person, partnership, or corporation an order requiring such 
person, partnership, or corporation to cease and desist from 
using such method of competition or such act or practice. Until 
the expiration of the time allowed for filing a petition for 
review, if no such petition has been duly filed within such 
time, or, if a petition for review has been filed within such 
time then until the record in the proceeding has been filed in 
a court of appeals of the United States, as hereinafter 
provided, the Commission may at any time, upon such notice and 
in such manner as it shall deem proper, modify or set aside, in 
whole or in part, any report or any order made or issued by it 
under this section. After the expiration of the time allowed 
for filing a petition for review, if no such petition has been 
duly filed within such time, the Commission may at any time, 
after notice and opportunity for hearing, reopen and alter, 
modify, or set aside, in whole or in part, any report or order 
made or issued by it under this section, whenever in the 
opinion of the Commission conditions of fact or of law have so 
changed as to require such action or if the public interest 
shall so require, except that--
          (1) the said person, partnership, or corporation may, 
        within sixty days after the service upon him or it of 
        said report or order entered after such a reopening, 
        obtain a review thereof in the appropriate court of 
        appeals of the United States, in the manner provided in 
        subsection (c) of this section; and
          (2) in the case of an order, the Commission shall 
        reopen any such order to consider whether such order 
        (including any affirmative relief provision contained 
        in such order) should be altered, modified, or set 
        aside, in whole or in part, if the person, partnership, 
        or corporation involved files a request with the 
        Commission which makes a satisfactory showing that 
        changed conditions of law or fact require such order to 
        be altered, modified, or set aside, in whole or in 
        part. The Commission shall determine whether to alter, 
        modify, or set aside any order of the Commission in 
        response to a request made by a person, partnership, or 
        corporation under paragraph (2) not later than 120 days 
        after the date of the filing of such request.
  (c) Review of order; rehearing.--Any person, partnership, or 
corporation required by an order of the Commission to cease and 
desist from using any method of competition or act or practice 
may obtain a review of such order in the court of appeals of 
the United States, within any circuit where the method of 
competition or the act or practice in question was used or 
where such person, partnership, or corporation resides or 
carries on business, by filing in the court, within sixty days 
from the date of the service of such order, a written petition 
praying that the order of the Commission be set aside. A copy 
of such petition shall be forthwith transmitted by the clerk of 
the court to the Commission, and thereupon the Commission shall 
file in the court the record in the proceeding, as provided in 
section 2112 of title 28, United States Code. Upon such filing 
of the petition the court shall have jurisdiction of the 
proceeding and of the question determined therein concurrently 
with the Commission until the filing of the record and shall 
have power to make and enter a decree affirming, modifying, or 
setting aside the order of the Commission, and enforcing the 
same to the extent that such order is affirmed and to issue 
such writs as are ancillary to its jurisdiction or are 
necessary in its judgment to prevent injury to the public or to 
competitors pendente lite. The findings of the Commission as to 
the facts, if supported by evidence, shall be conclusive. To 
the extent that the order of the Commission is affirmed, the 
court shall thereupon issue its own order commanding obedience 
to the terms of such order of the Commission. If either party 
shall apply to the court for leave to adduce additional 
evidence, and shall show to the satisfaction of the court that 
such additional evidence is material and that there were 
reasonable grounds for the failure to adduce such evidence in 
the proceeding before the Commission, the court may order such 
additional evidence to be taken before the Commission and to be 
adduced upon the hearing in such manner and upon such terms and 
conditions as to the court may seem proper. The Commission may 
modify its findings as to the facts, or make new findings, by 
reason of the additional evidence so taken, and it shall file 
such modified or new findings, which, if supported by evidence, 
shall be conclusive, and its recommendation, if any, for the 
modification or setting aside of its original order, with the 
return of such additional evidence. The judgment and decree of 
the court shall be final, except that the same shall be subject 
to review by the Supreme Court upon certiorari, as provided in 
section 240 of the Judicial Code (28 U.S.C. 1254).
  (d) Jurisdiction of court.--Upon the filing of the record 
with it the jurisdiction of the court of appeals of the United 
States to affirm, enforce, modify, or set aside orders of the 
Commission shall be exclusive.
  (e) Extension from liability.--No order of the Commission or 
judgment of court to enforce the same shall in anywise relieve 
or absolve any person, partnership, or corporation from any 
liability under the Antitrust Acts.
  (f) Service of complaints, orders and other processes; 
return.--Complaints, orders, and other processes of the 
Commission under this section may be served by anyone duly 
authorized by the Commission, either (a) by delivering a copy 
thereof to the person to be served, or to a member of the 
partnership to be served, or the president, secretary, or other 
executive officer or a director of the corporation to be 
served; or (b) by leaving a copy thereof at the residence or 
the principal office or place of business of such person, 
partnership, or corporation; or by mailing a copy thereof by 
registered mail or by certified mail addressed to such person, 
partnership, or corporation at his or its residence or 
principal office or place of business. The verified return by 
the person so serving said complaint, order, or other process 
setting forth the manner of said service shall be proof of the 
same, and the return post office receipt for said complaint, 
order, or other process mailed by registered mail or by 
certified mail as aforesaid shall be proof of the service of 
the same.
  (g) Finality of order.--An order of the Commission to cease 
and desist shall become final--
          (1) Upon the expiration of the time allowed for 
        filing a petition for review, if no such petition has 
        been duly filed within such time; but the Commission 
        may thereafter modify or set aside its order to the 
        extent provided in the last sentence of subsection (b).
          (2) Except as to any order provision subject to 
        paragraph (4), upon the sixtieth day after such order 
        is served, if a petition for review has been duly 
        filed; except that any such order may be stayed, in 
        whole or in part and subject to such conditions as may 
        be appropriate, by--
                  (A) the Commission;
                  (B) an appropriate court of appeals of the 
                United States, if
                          (i) a petition for review of such 
                        order is pending in such court, and
                          (ii) an application for such a stay 
                        was previously submitted to the 
                        Commission and the Commission, within 
                        the 30-day period beginning on the date 
                        the application was received by the 
                        Commission, either denied the 
                        application or did not grant or deny 
                        the application; or
                  (C) the Supreme Court, if an applicable 
                petition for certiorari is pending.
          (3) For purposes of subsection (m)(1)(B) and of 
        section 19(a)(2) (15 U.S.C. 57b(a)(2)), if a petition 
        for review of the order of the Commission has been 
        filed--
                  (A) upon the expiration of the time allowed 
                for filing a petition for certiorari, if the 
                order of the Commission has been affirmed or 
                the petition for review has been dismissed by 
                the court of appeals and no petition for 
                certiorari has been duly filed;
                  (B) upon the denial of a petition for 
                certiorari, if the order of the Commission has 
                been affirmed or the petition for review has 
                been dismissed by the court of appeals; or
                  (C) upon the expiration of 30 days from the 
                date of issuance of a mandate of the Supreme 
                Court directing that the order of the 
                Commission be affirmed or the petition for 
                review be dismissed.
          (4) In the case of an order provision requiring a 
        person, partnership, or corporation to divest itself of 
        stock, other share capital, or assets, if a petition 
        for review of such order of the Commission has been 
        filed--
                  (A) upon the expiration of the time allowed 
                for filing a petition for certiorari, if the 
                order of the Commission has been affirmed or 
                the petition for review has been dismissed by 
                the court of appeals and no petition for 
                certiorari has been duly filed;
                  (B) upon the denial of a petition for 
                certiorari, if the order of the Commission has 
                been affirmed or the petition for review has 
                been dismissed by the court of appeals; or
                  (C) upon the expiration of 30 days from the 
                date of issuance of a mandate of the Supreme 
                Court directing that the order of the 
                Commission be affirmed or the petition for 
                review be dismissed.
  (h) Modification or setting aside of order by Supreme 
Court.--If the Supreme Court directs that the order of the 
Commission be modified or set aside, the order of the 
Commission rendered in accordance with the mandate of the 
Supreme Court shall become final upon the expiration of thirty 
days from the time it was rendered, unless within such thirty 
days either party has instituted proceedings to have such order 
corrected to accord with the mandate, in which event the order 
of the Commission shall become final when so corrected.
  (i) Modification or setting aside of order by Court of 
Appeals.--If the order of the Commission is modified or set 
aside by the court of appeals, and if (1) the time allowed for 
filing a petition for certiorari has expired and no such 
petition has been duly filed, or (2) the petition for 
certiorari has been denied, or (3) the decision of the court 
has been affirmed by the Supreme Court, then the order of the 
Commission rendered in accordance with the mandate of the court 
of appeals shall become final on the expiration of thirty days 
from the time such order of the Commission was rendered, unless 
within such thirty days either party has instituted proceedings 
to have such order corrected so that it will accord with the 
mandate, in which event the order of the Commission shall 
become final when so corrected.
  (j) Rehearing upon order or remand.--If the Supreme Court 
orders a rehearing; or if the case is remanded by the court of 
appeals to the Commission for a rehearing, and if (1) the time 
allowed for filing a petition for certiorari has expired, and 
no such petition has been duly filed, or (2) the petition for 
certiorari has been denied, or (3) the decision of the court 
has been affirmed by the Supreme Court, then the order of the 
Commission rendered upon such rehearing shall become final in 
the same manner as though no prior order of the Commission had 
been rendered.
  (k) ``Mandate'' defined.--As used in this section the term 
``mandate,'' in case a mandate has been recalled prior to the 
expiration of thirty days from the date of issuance thereof, 
means the final mandate.
  (l) Penalty for violation of order; injunctions and other 
appropriate equitable relief.--Any person, partnership, or 
corporation who violates an order of the Commission after it 
has become final, and while such order is in effect, shall 
forfeit and pay to the United States a civil penalty of not 
more than $10,000 for each violation, which shall accrue to the 
United States and may be recovered in a civil action brought by 
the Attorney General of the United States. Each separate 
violation of such an order shall be a separate offense, except 
that in the case of a violation through continuing failure to 
obey or neglect to obey a final order of the Commission, each 
day of continuance of such failure or neglect shall be deemed a 
separate offense. In such actions, the United States district 
courts are empowered to grant mandatory injunctions and such 
other and further equitable relief as they deem appropriate in 
the enforcement of such final orders of the Commission.
  (m) Civil actions for recovery of penalties for knowing 
violations of rules and cease and desist orders respecting 
unfair or deceptive acts or practices; jurisdiction; maximum 
amount of penalties; continuing violations; de novo 
determinations; compromise or settlement procedure.--
          (1)(A) The Commission may commence a civil action to 
        recover a civil penalty in a district court of the 
        United States against any person, partnership, or 
        corporation which violates any rule under this Act 
        respecting unfair or deceptive acts or practices (other 
        than an interpretive rule or a rule violation of which 
        the Commission has provided is not an unfair or 
        deceptive act or practice in violation of subsection 
        (a)(1)) with actual knowledge or knowledge fairly 
        implied on the basis of objective circumstances that 
        such act is unfair or deceptive and is prohibited by 
        such rule. In such action, such person, partnership, or 
        corporation shall be liable for a civil penalty of not 
        more than $10,000 for each violation.
          (B) If the Commission determines in a proceeding 
        under subsection (b) that any act or practice is unfair 
        or deceptive, and issues a final cease and desist 
        order, other than a consent order, with respect to such 
        act or practice, then the Commission may commence a 
        civil action to obtain a civil penalty in a district 
        court of the United States against any person, 
        partnership, or corporation which engages in such act 
        or practice--
                  (1) after such cease and desist order becomes 
                final (whether or not such person, partnership, 
                or corporation was subject to such cease and 
                desist order), and
                  (2) with actual knowledge that such act or 
                practice is unfair or deceptive and is unlawful 
                under subsection (a)(1) of this section.
        In such action, such person, partnership, or 
        corporation shall be liable for a civil penalty of not 
        more than $10,000 for each violation.
          (C) In the case of a violation through continuing 
        failure to comply with a rule or with section 5(a)(1), 
        each day of continuance of such failure shall be 
        treated as a separate violation, for purposes of 
        subparagraphs (A) and (B). In determining the amount of 
        such a civil penalty, the court shall take into account 
        the degree of culpability, any history of prior such 
        conduct, ability to pay, effect on ability to continue 
        to do business, and such other matters as justice may 
        require.
  (D) In the case of a violation involving an unfair or 
deceptive act or practice in a national emergency period or 
disaster period, or relating to an international disaster, the 
amount of the civil penalty under this paragraph shall be 
double the amount otherwise provided in this paragraph, if the 
act or practice exploits popular reaction to the national 
emergency or major disaster that is the basis for such period, 
or to the international disaster.
  (E) In this paragraph:
          (i) The term ``national emergency period'' means the 
        period that--
                  (I) begins on the date the President declares 
                a national emergency under the National 
                Emergencies Act (50 U.S.C. 1601 et seq.); and
                  (II) ends on the expiration of the 1-year 
                period beginning on the date of the termination 
                of the national emergency.
          (ii) The term ``disaster period'' means the 1-year 
        period beginning on the date the President declares an 
        emergency or major disaster under the Robert T. 
        Stafford Disaster Relief and Emergency Assistance Act 
        (42 U.S.C. 5121 et seq.).
          (iii) The term ``international disaster'' means any 
        natural or man-made disaster in response to which the 
        President furnishes assistance to any foreign country, 
        international organization, or private voluntary 
        organization pursuant to section 491 of the Foreign 
        Assistance Act (22 U.S.C. 2292(b)).
          (2) If the cease and desist order establishing that 
        the act or practice is unfair or deceptive was not 
        issued against the defendant in a civil penalty action 
        under paragraph (1)(B) the issues of fact in such 
        action against such defendant shall be tried de novo. 
        Upon request of any party to such an action against 
        such defendant, the court shall also review the 
        determination of law made by the Commission in the 
        proceeding under subsection (b) that the act or 
        practice which was the subject of such proceeding 
        constituted an unfair or deceptive act or practice in 
        violation of subsection (a).
          (3) The Commission may compromise or settle any 
        action for a civil penalty if such compromise or 
        settlement is accompanied by a public statement of its 
        reasons and is approved by the court.
  (n) Definition of unfair acts or practices.--The Commission 
shall have no authority under this section or section 18 to 
declare unlawful an act or practice on the grounds that such 
act or practice is unfair unless the act or practice causes or 
is likely to cause substantial injury to consumers which is not 
reasonably avoidable by consumers themselves and not outweighed 
by countervailing benefits to consumers or to competition. In 
determining whether an act or practice is unfair, the 
Commission may consider established public policies as evidence 
to be considered with all other evidence. Such public policy 
considerations may not serve as a primary basis for such 
determination.

                      FEDERAL TRADE COMMISSION ACT

SEC. 13. FALSE ADVERTISEMENTS; INJUNCTIONS AND RESTRAINING ORDERS.

                             [15 U.S.C. 53]

  (a) Power of Commission; jurisdiction of courts.--Whenever 
the Commission has reason to believe--
          (1) that any person, partnership, or corporation is 
        engaged in, or is about to engage in, the dissemination 
        or the causing of the dissemination of any 
        advertisement in violation of section 12, and
          (2) that the enjoining thereof pending the issuance 
        of a complaint by the Commission under section 5, and 
        until such complaint is dismissed by the Commission or 
        set aside by the court on review, or the order of the 
        Commission to cease and desist made thereon has become 
        final within the meaning of section 5, would be to the 
        interest of the public,
the Commission by any of its attorneys designated by it for 
such purpose may bring suit in a district court of the United 
States or in the United States court of any Territory, to 
enjoin the dissemination or the causing of the dissemination of 
such advertisement. Upon proper showing a temporary injunction 
or restraining order shall be granted without bond. Any suit 
may be brought where such person, partnership, or corporation 
resides or transacts business, or wherever venue is proper 
under section 1391 of title 28, United States Code. In 
addition, the court may, if the court determines that the 
interests of justice require that any other person, 
partnership, or corporation should be a party in such suit, 
cause such other person, partnership, or corporation to be 
added as a party without regard to whether venue is otherwise 
proper in the district in which the suit is brought. In any 
suit under this section, process may be served on any person, 
partnership, or corporation wherever it may be found.
  (b) Temporary restraining orders; preliminary injunctions.--
Whenever the Commission has reason to believe
          (1) that any person, partnership, or corporation is 
        violating, or is about to violate, any provision of law 
        enforced by the Federal Trade Commission, and
          (2) that the enjoining thereof pending the issuance 
        of a complaint by the Commission and until such 
        complaint is dismissed by the Commission or set aside 
        by the court on review, or until the order of the 
        Commission made thereon has become final, would be in 
        the interest of the public
the Commission by any of its attorneys designated by it for 
such purpose may bring suit in a district court of the United 
States to enjoin any such act or practice. Upon a proper 
showing that, weighing the equities and considering the 
Commission's likelihood of ultimate success, such action would 
be in the public interest, and after notice to the defendant, a 
temporary restraining order or a preliminary injunction may be 
granted without bond: Provided, however, That if a complaint is 
not filed within such period (not exceeding 20 days) as may be 
specified by the court after issuance of the temporary 
restraining order or preliminary injunction, the order or 
injunction shall be dissolved by the court and be of no further 
force and effect: Provided further, That in proper cases the 
Commission may seek, and after proper proof, the court may 
issue, a permanent injunction. Any suit may be brought where 
such person, partnership, or corporation resides or transacts 
business, or wherever venue is proper under section 1391 of 
title 28, United States Code. In addition, the court may, if 
the court determines that the interests of justice require that 
any other person, partnership, or corporation should be a party 
in such suit, cause such other person, partnership, or 
corporation to be added as a party without regard to whether 
venue is otherwise proper in the district in which the suit is 
brought. In any suit under this section, process may be served 
on any person, partnership, or corporation wherever it may be 
found.
  (c) Service of process of the Commission; proof of service.--
Any process of the Commission under this section may be served 
by any person duly authorized by the Commission--
          (1) by delivering a copy of such process to the 
        person to be served, to a member of the partnership to 
        be served, or to the president, secretary, or other 
        executive officer or a director of the corporation to 
        be served;
          (2) by leaving a copy of such process at the 
        residence or the principal office or place of business 
        of such person, partnership, or corporation; or
          (3) by mailing a copy of such process by registered 
        mail or certified mail addressed to such person, 
        partnership, or corporation at his, or her, or its 
        residence, principal office, or principal place or 
        business. The verified return by the person serving 
        such process setting forth the manner of such service 
        shall be proof of the same.
  (d) Exception of periodical publications.--Whenever it 
appears to the satisfaction of the court in the case of a 
newspaper, magazine, periodical, or other publication, 
published at regular intervals--
          (1) that restraining the dissemination of a false 
        advertisement in any particular issue of such 
        publication would delay the delivery of such issue 
        after the regular time therefor, and
          (2) that such delay would be due to the method by 
        which the manufacture and distribution of such 
        publication is customarily conducted by the publisher 
        in accordance with sound business practice, and not to 
        any method or device adopted for the evasion of this 
        section or to prevent or delay the issuance of an 
        injunction or restraining order with respect to such 
        false advertisement or any other advertisement,
the court shall exclude such issue from the operation of the 
restraining order or injunction.
  (e) National Emergency or Disaster Period.--
          (1) In general.--If a person, partnership, or 
        corporation is found, in an action under subsection 
        (b), to have committed a violation involving an unfair 
        or deceptive act or practice in a national emergency 
        period or a disaster period, or relating to an 
        international disaster, and if the act or practice 
        exploits popular reaction to the national emergency or 
        major disaster that is the basis for such period, or to 
        the international disaster, the court, after awarding 
        equitable relief (if any) under any other authority of 
        the court, shall hold the person, partnership, or 
        corporation liable for a civil penalty of not more than 
        $22,000 for each such violation.
          (2) Definitions.--In this subsection:
                  (A) National emergency period.--The term 
                ``national emergency period'' means the period 
                that--
                          (i) begins on the date the President 
                        declares a national emergency under the 
                        National Emergencies Act (50 U.S.C. 
                        1601 et seq.); and
                          (ii) ends on the expiration of the 1-
                        year period beginning on the date of 
                        the termination of the national 
                        emergency.
                  (B) Disaster period.--The term ``disaster 
                period'' means the 1-year period beginning on 
                the date the President declares an emergency or 
                major disaster under the Robert T. Stafford 
                Disaster Relief and Emergency Assistance Act 
                (42 U.S.C. 5121 et seq.).
                  (C) International disaster.--The term 
                ``international disaster'' means any natural or 
                man-made disaster in response to which the 
                President furnishes assistance to any foreign 
                country, international organization, or private 
                voluntary organization pursuant to section 491 
                of the Foreign Assistance Act (22 U.S.C. 
                2292(b)).

                      TITLE 18, UNITED STATES CODE

                 CHAPTER 47. FRAUD AND FALSE STATEMENTS

Sec. 1030A. Illicit indirect use of protected computers

  (a) Furtherance of Criminal Offense.--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) Security Protection.--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) Individual Exemption.--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) Network Exemption.--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 
or, 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) Definitions.--In this section:
          (1) Computer; protected computer.--The terms 
        ``computer'' and ``protected computer'' have the 
        meanings given such terms in section 1030(e) of this 
        title.
          (2) State.--The term ``State'' includes each of the 
        several States, the District of Columbia, Puerto Rico, 
        and any other territory or possession of the United 
        States.

                                  
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