II 

110TH CONGRESS 

1ST SESSION S. 1625 

To protect against 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. 

IN THE SENATE OF THE UNITED STATES 

JUNE 14, 2007 

Mr. PRYOR (for himself, Mr. NELSON of Florida, and Mrs. BOXER) introduced 

the following bill; which was read twice and referred to the Committee 

on Commerce, Science, and Transportation 

A BILL 

To protect against 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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Counter Spy Act’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 


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Sec. 2. Federal Trade Commission authority to combat deceptive acts or practices relating to spyware. 

Sec. 3. Prohibited behaviors. 

Sec. 4. Installing personal information collection features on a user’s computer. 

Sec. 5. Adware that conceals its operation. 

Sec. 6. Limitations on liability. 

Sec. 7. FTC administration and enforcement. 

Sec. 8. Enforcement by other agencies. 

Sec. 9. State enforcement. 

Sec. 10. Other enforcement. 

Sec. 11. Effect on other laws. 

Sec. 12. Definitions. 

Sec. 13. Criminal penalties for certain unauthorized activities relating to computers. 

Sec. 14. Effective date. 

1 SEC. 2. FEDERAL TRADE COMMISSION AUTHORITY TO COM2 BAT DECEPTIVE ACTS OR PRACTICES RELAT3 ING TO SPYWARE. 

4 (a) IN GENERAL.—It is a violation of section 5 of 

5 the Federal Trade Commission Act (15 U.S.C. 45) to in6 stall through unfair or deceptive acts or practices software 

7 on protected computers. 

8 (b) RULE OF CONSTRUCTION.—This Act shall not be 

9 construed to limit in any way what is an unfair or decep10 tive act or practice under the Federal Trade Commission 

11 Act (15 U.S.C. 41 et seq.). 

12 SEC. 3. PROHIBITED BEHAVIORS. 

13 It is unlawful for a person who is not an authorized 

14 user of a protected computer to cause the installation on 

15 that computer of software that— 

16 (1) takes control of the protected computer 

17 by— 


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1 (A) ZOMBIES.—Transmitting or relaying 

2 commercial electronic mail or a computer virus 

3 from a protected computer if the transmission 

4 or relaying is initiated by a person other than 

5 an authorized user and without the authoriza6 tion of an authorized user; 

7 (B) MODEM HIJACKING.—Accessing or 

8 using the modem or Internet service of an au9 thorized user of a protected computer for the 

10 purpose of— 

11 (i) causing damage to the protected 

12 computer; or 

13 (ii) causing the authorized user to 

14 incur financial charges for a service that is 

15 not authorized by that authorized user; 

16 (C) DENIAL OF SERVICE ATTACKS.—Using 

17 a protected computer as part of an activity per18 formed by a group of computers for the purpose 

19 of causing damage, including launching a denial 

20 of service attack; or 

21 (D) ENDLESS LOOP POP-UP ADVERTISE22 MENTS.—Opening multiple, sequential, stand23 alone advertisements in an authorized user’s 

24 protected computer without the authorization of 

25 that user and with knowledge that a reasonable 


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1 computer user cannot close the advertisements 

2 without turning off the computer or forcing an 

3 application to close using means other than the 

4 ordinary means for closing the application, ex5 cept that this subparagraph does not apply to 

6 communications— 

7 (i) originated by the computer’s oper8 ating system; 

9 (ii) originated by software that the 

10 user knowingly chooses to activate; 

11 (iii) originated by a service provider 

12 that the user chooses to use; or 

13 (iv) presented for any of the purposes 

14 described in section 6; 

15 (2) modifies— 

16 (A) ENABLING IDENTITY THEFT.—An au17 thorized user’s security or other settings related 

18 to access to, or use of, the Internet on a pro19 tected computer that protect information about 

20 the authorized user for the purpose of stealing 

21 the authorized user’s sensitive personal infor22 mation; or 

23 (B) DISABLING SECURITY.—The security 

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1 pose of causing damage to that computer or an2 other computer; or 

3 (C) BROWSER SETTINGS.—Through unfair 

4 or deceptive means— 

5 (i) the page that appears when an au6 thorized user launches an Internet browser 

7 or similar software program used to access 

8 and navigate the Internet; 

9 (ii) the default provider or Web proxy 

10 the authorized user uses to access or 

11 search the Internet; 

12 (iii) the authorized user’s list of book13 marks used to access Web pages; or 

14 (iv) the toolbars, buttons, and other 

15 functions on a user’s Internet browser or 

16 software used to access and navigate the 

17 Internet; 

18 (3) prevents, without authorization from the au19 thorized user, that user’s reasonable efforts to block 

20 the installation of, to disable, or to uninstall soft21 ware by unfair or deceptive means, including— 

22 (A) FALSIFYING OPTION TO DECLINE IN23 STALLS.—Presenting the authorized user with 

24 an option to decline installation of software 

25 with knowledge that, when the option is selected 


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1 by the authorized user, the installation never2 theless proceeds; or 

3 (B) EVADING UNINSTALLS BY UNFAIR OR

4 DECEPTIVE MEANS.— 

5 (i) falsely representing that the soft6 ware has been disabled; 

7 (ii) requiring in an unfair or deceptive 

8 manner the user to access the Internet to 

9 remove the software with knowledge or 

10 reckless disregard of the fact that the soft11 ware frequently operates in a manner that 

12 prevents the user from accessing the Inter13 net; 

14 (iii) changing the name, location or 

15 other designation information of the soft16 ware for the purpose of preventing an au17 thorized user from locating the software to 

18 remove it; 

19 (iv) using randomized or intentionally 

20 deceptive filenames, directory folders, for21 mats, or registry entries for the purpose of 

22 avoiding detection and removal of the soft23 ware by an authorized user; 

24 (v) causing the installation of software 

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1 puter memory for the purpose of evading 

2 authorized users’ attempts to remove the 

3 software from the computer; or 

4 (vi) requiring, without the authority of 

5 the owner of the computer, that an author6 ized user obtain a special code or download 

7 software from a third party to uninstall 

8 the software. 

9 SEC. 4. INSTALLING PERSONAL INFORMATION COLLEC10 TION FEATURES ON A USER’S COMPUTER. 

11 (a) IN GENERAL.—It is unlawful for a person who 

12 is not an authorized user of a protected computer to cause 

13 the installation on that computer of software that collects 

14 sensitive personal information from an authorized user, 

15 unless that person provides a clear and conspicuous disclo16 sure of such collection and obtains the authorized user’s 

17 consent prior to any such collection of information in any 

18 case in which the software extracts from the hard drive 

19 or other storage medium of the protected computer the 

20 authorized user’s— 

21 (1) Social Security number; 

22 (2) tax identification number; 

23 (3) driver’s license number; 

24 (4) passport number; 


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1 (5) any other government-issued identification 

2 number; 

3 (6) financial account, credit card, or debit card 

4 numbers; 

5 (7) account balances, or overdraft history; or 

6 (8) other sensitive personal information. 

7 (b) OTHER PERSONALLY IDENTIFYING INFORMA8 TION.—It is unlawful for a person who is not an author9 ized user of a protected computer to cause the installation 

10 on that computer of software that engages in any of the 

11 following practices without a prior disclosure that is clear12 ly and conspicuously available to, or with the knowledge 

13 of, the authorized user, and for a purpose unrelated to 

14 any of the purposes of the software or service described 

15 to an authorized user: 

16 (1) The use of a keystroke-logging function that 

17 records all or substantially all keystrokes made by 

18 an owner or operator of a computer and transfers 

19 that information from the computer to another per20 son. 

21 (2) Collection in a manner that correlates per22 sonally identifying information with a history of all 

23 or substantially all of the Web sites visited by an 

24 owner or operator, other than Web sites operated by 

25 the person providing such software. 


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1 (3) Extracting from the hard drive or other 

2 storage medium of the computer— 

3 (A) the substantive contents of files, data, 

4 software, or other information knowingly saved 

5 or installed by the authorized user of a pro6 tected computer, exclusive of data that provide 

7 a purely technical function; or 

8 (B) the substantive contents of commu9 nications sent by a user of a protected com10 puter from that computer to any other com11 puter. 

12 (c) EXCEPTION.—This section shall not be inter13 preted to restrict a person from causing the installation 

14 of software that collects information for the provider of 

15 an online service or website knowingly used or subscribed 

16 to by an authorized user if the information collected is 

17 used only to affect the user’s experience while using the 

18 online service or website. 

19 (d) UNINSTALL FUNCTIONALITY.— 

20 (1) IN GENERAL.—It is unlawful for a person 

21 who is not an authorized user of a protected com22 puter to cause the installation of software that per23 forms any function described in subsection (a) or (b) 

24 if the software cannot subsequently be uninstalled or 

25 disabled by an authorized user through a program 


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1 removal function that is usual and customary with 

2 the computer’s operating system or otherwise as 

3 clearly and conspicuously disclosed to the user. 

4 (2) CONSTRUCTION.— 

5 (A) AUTHORITY TO UNINSTALL.—Software 

6 that enables an authorized user of a protected 

7 computer, such as a parent, employer, or sys8 tem administrator, to choose to prevent another 

9 user of the same computer from uninstalling or 

10 disabling the software shall not be considered to 

11 prevent reasonable efforts to uninstall or dis12 able the software within the meaning of para13 graph (1) if at least 1 authorized user retains 

14 the ability to uninstall or disable the software. 

15 (B) RULE OF CONSTRUCTION.—This sub16 section shall not be construed to require indi17 vidual features or functions of a software pro18 gram, upgrades to a previously installed soft19 ware program, or software programs that were 

20 installed on a bundled basis with other software 

21 or with hardware to be capable of being 

22 uninstalled or disabled separately from such 

23 software or hardware. 


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1 SEC. 5. ADWARE THAT CONCEALS ITS OPERATION. 

2 (a) IN GENERAL.—It is unlawful for a person who 

3 is not an authorized user of a protected computer to cause 

4 the installation on that computer of software that causes 

5 advertising windows to appear on the protected computer 

6 regardless of whether any other non-advertising-related 

7 functionality of the software or of other software installed 

8 as part of a bundle with such software is— 

9 (1) activated by the authorized user; or 

10 (2) conspicuously active on the protected com11 puter unless the software complies with subsection 

12 (b). 

13 (b) LABEL REQUIRED FOR CERTAIN ADVERTISE14 MENTS.—Subsection (a) does not apply if— 

15 (1) the software displays to the user, each time 

16 the software causes an advertisement to appear, a 

17 clear and conspicuous label or other reasonable 

18 means of identifying to the user of the computer the 

19 identity or name of the software that caused the ad20 vertisement to appear; 

21 (2) the software was installed as part of a bun22 dle of software, and the software displays to the user 

23 the name of a program in such bundle that the au24 thorized user is likely to identify as the main compo25 nent of the software bundle; and 


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1 (3) a clear and conspicuous hypertext link to in2 structions concerning how the user may uninstall the 

3 software causing the advertisement to appear 

4 through usual and customary means within the com5 puter’s operating system. 

6 (c) EXCEPTION.—Software that causes advertise7 ments to be displayed without a clear and conspicuous 

8 label or other reasonable means of identification shall not 

9 give rise to liability under subsection (a) if those advertise10 ments are displayed to a user of the computer only when 

11 a user is accessing or using an Internet website or online 

12 service— 

13 (1) owned or operated by the author or pub14 lisher of the software; or 

15 (2) the owner or operator of which has author16 ized the author or publisher of the software to dis17 play such advertisements to users of that website or 

18 service. 

19 SEC. 6. LIMITATIONS ON LIABILITY. 

20 (a) IN GENERAL.—The restrictions imposed by sec21 tion 3, 4, and 5 of this Act do not apply to any monitoring 

22 of, or interaction with, a subscriber’s Internet or other 

23 network connection or service, or a protected computer, 

24 by or at the direction of a telecommunications carrier, 

25 cable operator, computer hardware or software provider, 


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1 financial institution or provider of information services or 

2 interactive computer service for— 

3 (1) network or computer security purposes; 

4 (2) diagnostics; 

5 (3) technical support; 

6 (4) repair; 

7 (5) network management; 

8 (6) authorized updates of software or system 

9 firmware; 

10 (7) authorized remote system management; 

11 (8) authorized provision of protection for users 

12 of the computer from objectionable content; 

13 (9) authorized scanning for computer software 

14 used in violation of sections 3, 4, or 5 for removal 

15 by an authorized user; or 

16 (10) detection or prevention of the unauthorized 

17 use of software fraudulent or other illegal activities. 

18 (b) MANUFACTURER’S LIABILITY FOR THIRD-PARTY

19 SOFTWARE.—A manufacturer or retailer of a computer 

20 shall not be liable under any provision of this Act for caus21 ing the installation on the computer, prior to the first re22 tail sale and delivery of the computer, of third-party 

23 branded software, unless the manufacturer or retailer— 


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1 (1) uses the software to collect information 

2 about a user of the computer or the use of a pro3 tected computer by that user; or 

4 (2) knows that the software will cause adver5 tisements for the manufacturer or retailer to be dis6 played to a user of the computer, or derives a finan7 cial benefit from other advertisements displayed on 

8 the computer. 

9 (c) EXCEPTION FOR AUTHORIZED INVESTIGATIVE

10 AGENCIES.—Nothing in this Act prohibits any lawfully 

11 authorized investigative, protective, or intelligence activity 

12 of a law enforcement agency of the United States, a State, 

13 or a political subdivision of a State, or of an intelligence 

14 agency of the United States. 

15 (d) SERVICES PROVIDED OVER MVPD SYSTEMS.— 

16 It is not a violation of this Act for a multichannel video 

17 programming distributor (as defined in section 602(13) of 

18 the Communications Act of 1934 (47 U.S.C. 522(13))) to 

19 utilize a navigation device, or interact with such a device, 

20 or to install or use software on such a device, in connection 

21 with the provision of multichannel video programming or 

22 other services offered over a multichannel video program23 ming system or the collection or disclosure of subscriber 

24 information, if the provision of such service or the collec25 tion or disclosure of such information is subject to section 


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1 338(i) or section 631 of the Communications Act of 1934 

2 (47 U.S.C. 338(i); 551). 

3 SEC. 7. FTC ADMINISTRATION AND ENFORCEMENT. 

4 (a) IN GENERAL.—Except as provided in sections 8, 

5 9, and 10, this Act shall be enforced by the Commission 

6 as if a violation of this Act or of any regulation promul7 gated by the Commission under this Act were an unfair 

8 or deceptive act or practice proscribed under section 

9 18(a)(1)(B) of the Federal Trade Commission Act (15 

10 U.S.C. 57a(a)(1)(B)). 

11 (b) PENALTIES.— 

12 (1) TREBLE FINE.—The penalty for a violation 

13 of this Act or of any regulation promulgated by the 

14 Commission under this Act may be increased by the 

15 Commission to threefold the amount of penalty oth16 erwise applicable under section 5 of the Federal 

17 Trade Commission Act (15 U.S.C. 45). 

18 (2) PENALTY FOR PATTERN OR PRACTICE OF

19 VIOLATIONS.— 

20 (A) IN GENERAL.—If the Commission de21 termines that a person has engaged in a pat22 tern or practice of activity that violates the pro23 visions of this Act, the Commission may, in its 

24 discretion, seek a civil penalty for such pattern 

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1 mined by the Commission, of not more than 

2 $3,000,000 for each such violation of this Act. 

3 (B) TREATMENT OF SINGLE ACTION OR

4 CONDUCT.—For purposes of subparagraph (A), 

5 any single action or conduct that violates this 

6 Act with respect to multiple protected com7 puters shall be treated as a single violation. 

8 (c) SEIZURE AND FORFEITURE OF TAINTED ASSETS

9 OF VIOLATOR.—In an enforcement action brought for a 

10 violation of this Act under section 19(b) of the Federal 

11 Trade Commission Act (15 U.S.C. 57b(b)), the Commis12 sion may petition the court to order the seizure and for13 feiture of any assets of the violator attributable to viola14 tion of this Act. 

15 (d) ILL-GOTTEN GAINS.—The Commission may re16 quire any person who violates this Act to disgorge any ill17 gotten gains procured through unfair or deceptive acts or 

18 practices in violation of this Act and shall seize any such 

19 gains it has required to be disgorged. 

20 (e) ACTIONS BY THE COMMISSION.— 

21 (1) IN GENERAL.—The Commission shall pre22 vent any person from violating this Act in the same 

23 manner, by the same means, and with the same ju24 risdiction, powers, and duties as though all applica25 ble terms and provisions of the Federal Trade ComVerDate Aug 31 2005 22:25 Jun 20, 2007 Jkt 059200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\S1625.IS S1625

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1 mission Act (15 U.S.C. 41 et seq.) were incor2 porated into and made a part of this Act. Any entity 

3 that violates any provision of this Act is subject to 

4 the penalties and entitled to the privileges and im5 munities provided in the Federal Trade Commission 

6 Act in the same manner, by the same means, and 

7 with the same jurisdiction, power, and duties as 

8 though all applicable terms and provisions of the 

9 Federal Trade Commission Act were incorporated 

10 into and made a part of this Act. 

11 (2) OTHER AUTHORITY NOT AFFECTED.—Noth12 ing in this Act shall be construed to limit or affect 

13 in any way the Commission’s authority to bring en14 forcement actions or take any other measure under 

15 the Federal Trade Commission Act (15 U.S.C. 41 et 

16 seq.) or any other provision of law. 

17 SEC. 8. ENFORCEMENT BY OTHER AGENCIES. 

18 (a) IN GENERAL.—Compliance with this Act shall be 

19 enforced exclusively under— 

20 (1) section 8 of the Federal Deposit Insurance 

21 Act (12 U.S.C. 1818), in the case of— 

22 (A) national banks, and Federal branches 

23 and Federal agencies of foreign banks, and any 

24 subsidiaries of such entities (except brokers, 

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1 ment companies, and investment advisers), by 

2 the Office of the Comptroller of the Currency; 

3 (B) member banks of the Federal Reserve 

4 System (other than national banks), branches 

5 and agencies of foreign banks (other than Fed6 eral branches, Federal agencies, and insured 

7 State branches of foreign banks), commercial 

8 lending companies owned or controlled by for9 eign banks, organizations operating under sec10 tion 25 or 25A of the Federal Reserve Act (12 

11 U.S.C. 601 and 611), and bank holding compa12 nies and their nonbank subsidiaries or affiliates 

13 (except brokers, dealers, persons providing in14 surance, investment companies and investment 

15 advisers), by the Board of Governors of the 

16 Federal Reserve System; 

17 (C) banks insured by the Federal Deposit 

18 Insurance Corporation (other than members of 

19 the Federal Reserve System), insured State 

20 branches of foreign banks, and any subsidiaries 

21 of such entities (except brokers, dealers, per22 sons providing insurance, investment companies 

23 and investment advisers), by the Board of Di24 rectors of the Federal Deposit Insurance Cor25 poration; and 


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1 (D) savings associations the deposits of 

2 which are insured by the Federal Deposit In3 surance Corporation, and any subsidiaries of 

4 such savings associations (except brokers, deal5 ers, persons providing insurance, investment 

6 companies and investment advisers), by the Di7 rector of the Office of Thrift Supervision; 

8 (2) the Federal Credit Union Act (12 U.S.C. 

9 1751 et seq.) by the Board of the National Credit 

10 Union Administration Board with respect to any 

11 Federal credit union and any subsidiaries of such a 

12 credit union; 

13 (3) the Securities and Exchange Act of 1934 

14 (15 U.S.C. 78a et seq.) by the Securities and Ex15 change Commission with respect to— 

16 (A) a broker or dealer subject to that Act; 

17 (B) an investment company subject to the 

18 Investment Company Act of 1940 (15 U.S.C. 

19 80a–1 et seq.); and 

20 (C) an investment advisor subject to the 

21 Investment Advisers Act of 1940 (15 U.S.C. 

22 80b–1 et seq.); 

23 (4) the Communications Act of 1934 (47 

24 U.S.C. 151 et seq.) by the Federal Communications 


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1 Commission with respect to any person subject to 

2 the provisions of that Act; 

3 (5) part A of subtitle VII of title 49, United 

4 States Code, by the Secretary of Transportation 

5 with respect to any air carrier or foreign air carrier 

6 subject to that part; and 

7 (6) State insurance law, in the case of any per8 son engaged in providing insurance, by the applica9 ble State insurance authority of the State in which 

10 the person is domiciled. 

11 (b) EXERCISE OF CERTAIN POWERS.—For the pur12 pose of the exercise by any agency referred to in sub13 section (a) of its powers under any Act referred to in that 

14 subsection, a violation of this Act is deemed to be a viola15 tion of a requirement imposed under that Act. In addition 

16 to its powers under any provision of law specifically re17 ferred to in subsection (a), each of the agencies referred 

18 to in that subsection may exercise, for the purpose of en19 forcing compliance with any requirement imposed under 

20 this Act, any other authority conferred on it by law. 

21 SEC. 9. STATE ENFORCEMENT. 

22 (a) IN GENERAL.— 

23 (1) CIVIL ACTIONS.—In any case in which the 

24 attorney general of a State has reason to believe 

25 that an interest of the residents of that State has 


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1 been or is threatened or adversely affected by the 

2 engagement of any person in a practice that is pro3 hibited under this section, the State, as parens 

4 patriae, may bring a civil action on behalf of the 

5 residents of that State in a district court of the 

6 United States of appropriate jurisdiction, or any 

7 other court of competent jurisdiction— 

8 (A) to enjoin that practice; 

9 (B) to enforce compliance with this Act; 

10 (C) to obtain damage, restitution, or other 

11 compensation on behalf of residents of the 

12 State; or 

13 (D) to obtain such other relief as the court 

14 may consider to be appropriate. 

15 (2) NOTICE.— 

16 (A) IN GENERAL.—Before filing an action 

17 under paragraph (1), the attorney general of a 

18 State shall provide to the Commission— 

19 (i) written notice of the action; and 

20 (ii) a copy of the complaint for the ac21 tion. 

22 (B) EXEMPTION.— 

23 (i) IN GENERAL.—Subparagraph (A) 

24 shall not apply with respect to the filing of 

25 an action by an attorney general of a State 


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1 under this subsection, if the attorney gen2 eral of a State determines that it is not 

3 feasible to provide the notice described in 

4 that subparagraph before the filing of the 

5 action. 

6 (ii) NOTIFICATION.—In an action de7 scribed in clause (i), the attorney general 

8 of a State shall provide notice and a copy 

9 of the complaint to the Commission at the 

10 same time as the attorney general files the 

11 action. 

12 (b) INTERVENTION.— 

13 (1) IN GENERAL.—On receiving notice under 

14 subsection (a)(2), the Commission shall have the 

15 right to intervene in the action that is the subject 

16 of the notice. 

17 (2) EFFECT OF INTERVENTION.—If the Com18 mission intervenes in an action under subsection (a), 

19 it shall have the right— 

20 (A) to be heard with respect to any matter 

21 that arises in that action; and 

22 (B) to file a petition for appeal. 

23 (c) CONSTRUCTION.—For purposes of bringing any 

24 civil action under subsection (a), nothing in this Act shall 

25 be construed to prevent an attorney general of a State 


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1 from exercising the powers conferred on the attorney gen2 eral by the laws of that State— 

3 (1) to conduct investigations; 

4 (2) to administer oaths or affirmations; or 

5 (3) to compel the attendance of witnesses or the 

6 production of documentary and other evidence. 

7 (d) ACTION BY THE COMMISSION MAY PRECLUDE

8 STATE ACTION.—In any case in which an action is insti9 tuted by or on behalf of the Commission for violation of 

10 this Act, no State may, during the pendency of that action, 

11 institute an action under subsection (a) against any de12 fendant named in the complaint in that action for violation 

13 of that section. 

14 (e) VENUE; SERVICE OF PROCESS.— 

15 (1) VENUE.—Any action brought under sub16 section (a) may be brought in the district court of 

17 the United States that meets applicable require18 ments relating to venue under section 1391 of title 

19 28, United States Code. 

20 (2) SERVICE OF PROCESS.—In an action 

21 brought under subsection (a), process may be served 

22 in any district in which the defendant— 

23 (A) is an inhabitant; or 

24 (B) may be found. 


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1 SEC. 10. OTHER ENFORCEMENT. 

2 In the case of a violation of section 3(1)(B)(ii) that 

3 causes a telecommunications carrier to incur costs for the 

4 origination, transport, or termination of a call triggered 

5 using the modem of a customer of such telecommuni6 cations carrier as a result of such violation, the tele7 communications carrier may bring a civil action against 

8 the violator— 

9 (1) to recover— 

10 (A) the charges such carrier is obligated to 

11 pay to another carrier or to an information 

12 service provider as a result of the violation, in13 cluding but not limited to charges for the origi14 nation, transport, or termination of the call; 

15 (B) the costs of handling customer inquir16 ies or complaints with respect to amounts billed 

17 for such calls; and 

18 (C) other related costs and reasonable at19 torneys fees; and 

20 (2) to obtain an order to enjoin the violation. 

21 SEC. 11. EFFECT ON OTHER LAWS. 

22 (a) FEDERAL LAW.—Nothing in this Act shall be 

23 construed to limit or affect in any way the Commission’s 

24 authority to bring enforcement actions or take any other 

25 measures under the Federal Trade Commission Act or any 

26 other provision of law. 


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1 (b) PREEMPTION OF STATE OR LOCAL LAW.—Ex2 cept as provided in subsection (c), this Act supersedes any 

3 provision of a statute, regulation, or rule, and any require4 ment, prohibition, or remedy under the law of any State 

5 or political subdivision thereof that relates to, or confers 

6 a remedy for— 

7 (1) the installation or use of software to deliver 

8 advertisements to a protected computer; 

9 (2) the installation or use of software to collect 

10 information about a user of a protected computer or 

11 the user’s use of that computer; 

12 (3) the installation or use of software to allow 

13 a person other than an authorized user of the com14 puter to direct or control a protected computer; or 

15 (4) the method or manner of uninstalling or 

16 disabling software that performs any of the func17 tions described in paragraphs (1) through (3). 

18 (c) STATE LAW NOT SPECIFIC TO SOFTWARE.—This 

19 Act shall not be construed to preempt actions or remedies 

20 based upon— 

21 (1) a State’s generally applicable common law; 

22 or 

23 (2) any provision of generally applicable State 

24 consumer protection law. 


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1 SEC. 12. DEFINITIONS. 

2 In this Act: 

3 (1) ADVERTISING WINDOW.—The term ‘‘adver4 tising window’’ means a window— 

5 (A) that is displayed separately from other 

6 windows displayed to the authorized user (at 

7 the time a software program is activated) by 

8 any other active program; and 

9 (B) the content of which is entirely or in 

10 substantial part related to advertising. 

11 (2) AUTHORIZED USER.—The term ‘‘authorized 

12 user’’, when used with respect to a computer, means 

13 the owner or lessee of a computer, or someone using 

14 or accessing a computer with the authorization of 

15 the owner or lessee. 

16 (3) BUNDLE.—With respect to software, the 

17 term ‘‘bundle’’ means a set of executable software 

18 programs that are installed together. 

19 (4) CAUSE THE INSTALLATION.— 

20 (A) IN GENERAL.—The term ‘‘cause the 

21 installation’’ when used with respect to par22 ticular software, means (with knowledge or con23 scious avoidance of actual knowledge that soft24 ware performs a function described in section 3, 

25 4, or 5)— 


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1 (i) knowingly to provide the technical 

2 means by which the software is installed; 

3 or 

4 (ii) knowingly to pay or provide other 

5 consideration to, or knowingly to induce or 

6 authorize, another person to provide the 

7 technical means by which the software is 

8 installed. 

9 (B) EXCEPTIONS.—The term ‘‘cause the 

10 installation’’ does not include providing— 

11 (i) the Internet connection, telephone 

12 connection, or other transmission or rout13 ing function through which software was 

14 delivered to a protected computer for in15 stallation; 

16 (ii) the storage or hosting of software 

17 or of an Internet website through which 

18 the software was made available by a third 

19 party for installation to the protected com20 puter; or 

21 (iii) an information location tool, such 

22 as a directory, index, reference, pointer, or 

23 hypertext link, through which a user of a 

24 protected computer located software avail25 able for installation. 


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1 (5) COMMISSION.—The term ‘‘Commission’’ 

2 means the Federal Trade Commission. 

3 (6) COOKIE.—The term ‘‘cookie’’ means a text 

4 file— 

5 (A) that is placed on a computer by, or on 

6 behalf of, an Internet service provider, inter7 active computer service, or Internet website; 

8 and 

9 (B) the sole function of which is to record 

10 information that can be read or recognized 

11 when the user of the computer subsequently ac12 cesses particular websites or online locations or 

13 services. 

14 (7) DAMAGE.—The term ‘‘damage’’ has the 

15 meaning given that term in section 1030(e)(8) of 

16 title 18, United States Code. 

17 (8) INSTALL.— 

18 (A) IN GENERAL.—The term ‘‘install’’ 

19 means— 

20 (i) to write computer software to a 

21 computer’s persistent storage medium, 

22 such as the computer’s hard disk, in such 

23 a way that the computer software is re24 tained on the computer after the computer 


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1 is turned off and subsequently restarted; 

2 or 

3 (ii) to write computer software to a 

4 computer’s temporary memory, such as 

5 random access memory, in such a way that 

6 the software is retained and continues to 

7 operate after the user of the computer 

8 turns off or exits the Internet service, 

9 interactive computer service, or Internet 

10 website from which the computer software 

11 was obtained. 

12 (B) EXCEPTION FOR TEMPORARY

13 CACHE.—The term ‘‘install’’ does not include 

14 the writing of software to an area of the per15 sistent storage medium that is expressly re16 served for the temporary retention of recently 

17 accessed or input data or information, if the 

18 software retained in that area remains inoper19 ative unless a user of the computer chooses to 

20 access that temporary retention area. 

21 (9) LOSS.—The term ‘‘loss’’ has the meaning given 

22 that term in section 1030(e)(11) of title 18, United States 

23 Code. 


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1 (10) PERSON.—The term ‘‘person’’ has the 

2 meaning given that term in section 3(32) of the 

3 Communications Act of 1934 (47 U.S.C. 153(32)). 

4 (11) PROTECTED COMPUTER.—The term ‘‘pro5 tected computer’’ has the meaning given that term 

6 in section 1030(e)(2)(B) of title 18, United States 

7 Code. 

8 (12) PERSONALLY IDENTIFYING INFORMA9 TION.—The term ‘‘personally identifying informa10 tion’’ means, with respect to a protected computer— 

11 (A) the authorized user’s last name, com12 bined with the user’s first initial or first name; 

13 (B) the authorized user’s home address; 

14 (C) the authorized user’s telephone num15 ber; or 

16 (D) or other information that is sufficient 

17 to identify an authorized user by name. 

18 (13) SENSITIVE PERSONAL INFORMATION.— 

19 The term ‘‘sensitive personal information’’ means an 

20 individual’s name, address, or telephone number, 

21 when combined with that individual’s— 

22 (A) Social Security number, taxpayer iden23 tification number, or an employer identification 

24 number that is the same as or is derived from 

25 the Social Security number; 


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1 (B) financial account number, or credit 

2 card or debit card number, combined with any 

3 required security code, access code, or password 

4 that would permit access to such individual’s 

5 account; or 

6 (C) driver’s license identification number 

7 or State resident identification number. 

8 (14) SOFTWARE.—The term ‘‘software’’ means 

9 any program designed to cause a computer to per10 form a function or functions, but does not include a 

11 cookie. 

12 (15) UNFAIR OR DECEPTIVE ACT OR PRAC13 TICE.—The term ‘‘unfair or deceptive act or prac14 tice’’ has the same meaning as when used in section 

15 5 of the Federal Trade Commission Act (15 U.S.C. 

16 45). 

17 SEC. 13. CRIMINAL PENALTIES FOR CERTAIN UNAUTHOR18 IZED ACTIVITIES RELATING TO COMPUTERS. 

19 (a) IN GENERAL.—Chapter 47 of title 18, United 

20 States Code, is amended by inserting after section 1030 

21 the following: 

22 ‘‘§ 1030A. Illicit indirect use of protected computers 

23 ‘‘(a) FURTHERANCE OF CRIMINAL OFFENSE.—Who24 ever intentionally accesses a protected computer without 

25 authorization, or exceeds authorized access to a protected 


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1 computer, by causing a computer program or code to be 

2 copied onto the protected computer, and intentionally uses 

3 that program or code in furtherance of another Federal 

4 criminal offense shall be fined under this title or impris5 oned not more than 5 years, or both. 

6 ‘‘(b) SECURITY PROTECTION.—Whoever intentionally 

7 accesses a protected computer without authorization, or 

8 exceeds authorized access to a protected computer, by 

9 causing a computer program or code to be copied onto 

10 the protected computer, and by means of that program 

11 or code intentionally impairs the security protection of the 

12 protected computer shall be fined under this title or im13 prisoned not more than 2 years, or both. 

14 ‘‘(c) INDIVIDUAL EXEMPTION.—A person shall not 

15 violate this section who solely provides— 

16 ‘‘(1) an Internet connection, telephone connec17 tion, or other transmission or routing function 

18 through which software is delivered to a protected 

19 computer for installation; 

20 ‘‘(2) the storage or hosting of software, or of an 

21 Internet website, through which software is made 

22 available for installation to a protected computer; or 

23 ‘‘(3) an information location tool, such as a di24 rectory, index, reference, pointer, or hypertext link, 


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1 through which a user of a protected computer lo2 cates software available for installation. 

3 ‘‘(d) NETWORK EXEMPTION.—A provider of a net4 work or online service that an authorized user of a pro5 tected computer uses or subscribes to shall not violate this 

6 section by any monitoring or, interaction with, or installa7 tion of software for the purpose of— 

8 ‘‘(1) protecting the security of the network, 

9 service, or computer; 

10 ‘‘(2) facilitating diagnostics, technical support, 

11 maintenance, network management, or repair; or 

12 ‘‘(3) preventing or detecting unauthorized, 

13 fraudulent, or otherwise unlawful uses of the net14 work or service. 

15 ‘‘(e) DEFINITIONS.—In this section: 

16 ‘‘(1) COMPUTER; PROTECTED COMPUTER.—The 

17 terms ‘computer’ and ‘protected computer’ have the 

18 meanings given such terms in section 1030(e) of this 

19 title. 

20 ‘‘(2) STATE.—The term ‘State’ includes each of 

21 the several States, the District of Columbia, Puerto 

22 Rico, and any other territory or possession of the 

23 United States.’’. 

24 (b) CONFORMING AMENDMENT.—The table of sec25 tions at the beginning of chapter 47 of title 18, United 


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1 States Code, is amended by inserting after the item relat2 ing to section 1030 the following new item: 

‘‘1030A. Illicit indirect use of protected computers.’’. 

3 SEC. 14. EFFECTIVE DATE. 

4 This Act shall take effect 180 days after the date of 

5 enactment of this Act. 

Æ 


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