U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

49–010 

" ! SENATE 109TH CONGRESS

2nd Session 

REPORT

2006

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 

JUNE 12, 2006.—Ordered to be printed 


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(II) 

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 

CONRAD BURNS, Montana 

TRENT LOTT, Mississippi 

KAY BAILEY HUTCHISON, Texas 

OLYMPIA J. SNOWE, Maine 

GORDON H. SMITH, Oregon 

JOHN ENSIGN, Nevada 

GEORGE ALLEN, Virginia 

JOHN E. SUNUNU, New Hampshire 

JIM DEMINT, South Carolina 

DAVID VITTER, Louisiana 

JOHN D. ROCKEFELLER IV, West Virginia 

JOHN F. KERRY, Massachusetts 

BYRON L. DORGAN, North Dakota 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK LAUTENBERG, New Jersey 

E. BENJAMIN NELSON, Nebraska 

MARK PRYOR, Arkansas 

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 


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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 (S. 687) 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 with an amendment (in 

the nature of a substitute) and recommends that the bill (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 considVerDate Aug 31 2005 02:45 Jun 13, 2006 Jkt 049010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6601 E:\HR\OC\SR262.XXX SR262

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ered 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: 


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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). 


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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 


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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 


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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 operVerDate Aug 31 2005 02:45 Jun 13, 2006 Jkt 049010 PO 00000 Frm 00008 Fmt 6659 Sfmt 6601 E:\HR\OC\SR262.XXX SR262

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ating 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 communicaVerDate Aug 31 2005 02:45 Jun 13, 2006 Jkt 049010 PO 00000 Frm 00009 Fmt 6659 Sfmt 6601 E:\HR\OC\SR262.XXX SR262

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tions 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-inVerDate Aug 31 2005 02:45 Jun 13, 2006 Jkt 049010 PO 00000 Frm 00010 Fmt 6659 Sfmt 6601 E:\HR\OC\SR262.XXX SR262

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stalled, 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 


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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 acVerDate Aug 31 2005 02:45 Jun 13, 2006 Jkt 049010 PO 00000 Frm 00012 Fmt 6659 Sfmt 6601 E:\HR\OC\SR262.XXX SR262

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cess 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. McCain1

Mr. Lott1 Mr. Smith 

Mrs. Hutchison Mr. Ensign 


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Ms. Snowe1 Mr. Allen 

Mr. Inouye Mr. Sununu 

Mr. Rockefeller1 Mr. DeMint 

Mr. Kerry1 Mr. Vitter1

Mr. Dorgan1 Mr. Nelson of Nebraska 

Mrs. Boxer1

Mr. Nelson of Florida 

Ms. Cantwell 

Mr. Lautenberg1

Mr. Pryor 

Mr. Stevens 

1By 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. McCain1 Mr. Burns 

Mr. Smith Mr. Lott1

Mr. Ensign Mrs. Hutchison 

Mr. Allen Ms. Snowe 

Mr. Sununu Mr. Inouye 

Mr. DeMint Mr. Rockefeller1

Mr. Vitter1 Mr. Kerry1

Ms. Cantwell Mr. Dorgan1

Mr. Nelson of Nebraska Mrs. Boxer1

Mr. Nelson of Florida 

Mr. Lautenberg1

Mr. Pryor 

Mr. Stevens 1By 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 


ycherry on PROD1PC64 with REPORTS
13 

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 hereinVerDate Aug 31 2005 02:45 Jun 13, 2006 Jkt 049010 PO 00000 Frm 00015 Fmt 6659 Sfmt 6601 E:\HR\OC\SR262.XXX SR262

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after 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 


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15 

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 


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(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 


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17 

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 


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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 


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19 

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 


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20 

(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 SERV- ICE.—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 


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21 

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

§ 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 proVerDate Aug 31 2005 02:45 Jun 13, 2006 Jkt 049010 PO 00000 Frm 00023 Fmt 6659 Sfmt 6603 E:\HR\OC\SR262.XXX SR262

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tected 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. 

Æ 


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