II 

108TH CONGRESS 

2D SESSION S. 2145

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. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 27, 2004

Mr. BURNS (for himself, Mr. WYDEN, and Mrs. BOXER) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation 

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.

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. 

4 This Act may be cited as the ‘‘Software Principles 

5 Yielding Better Levels of Consumer Knowledge Act’’ or 

6 the ‘‘SPY BLOCK Act’’. 
2

•S 2145 IS 

1 SEC. 2. UNAUTHORIZED INSTALLATION OF COMPUTER 

2 SOFTWARE. 

3 (a) NOTICE, CHOICE, AND UNINSTALL PROCE4 DURES.—It is unlawful for any person who is not the user 

5 of a protected computer to install computer software on 

6 that computer, or to authorize, permit, or cause the instal7 lation of computer software on that computer, unless—

8 (1) the user of the computer has received notice 

9 that satisfies the requirements of section 3; 

10 (2) the user of the computer has granted con11 sent that satisfies the requirements of section 3; and 

12 (3) the computer software’s uninstall proce13 dures satisfy the requirements of section 3. 

14 (b) RED HERRING PROHIBITION.—It is unlawful for 

15 any person who is not the user of a protected computer 

16 to install computer software on that computer, or to au17 thorize, permit, or cause the installation of computer soft18 ware on that computer, if the design or operation of the 

19 computer software is intended, or may reasonably be ex20 pected, to confuse or mislead the user of the computer 

21 concerning the identity of the person or service responsible 

22 for the functions performed or content displayed by such 

23 computer software. 
3

•S 2145 IS 

1 SEC. 3. NOTICE, CONSENT, AND UNINSTALL REQUIRE2 MENTS. 

3 (a) NOTICE.—For purposes of section 2(a)(1), notice 

4 to the user of a computer shall—

5 (1) include a clear notification, displayed on the 

6 screen until the user either grants or denies consent 

7 to installation, of the name and general nature of 

8 the computer software that will be installed if the 

9 user grants consent; and 

10 (2) include a separate disclosure, with respect 

11 to each information collection, advertising, distrib12 uted computing, and settings modification feature 

13 contained in the computer software, that—

14 (A) remains displayed on the screen until 

15 the user either grants or denies consent to that 

16 feature; 

17 (B) in the case of an information collection 

18 feature, provides a clear description of—

19 (i) the type of personal or network in20 formation to be collected and transmitted 

21 by the computer software; and 

22 (ii) the purpose for which the personal 

23 or network information is to be collected, 

24 transmitted, and used; 

25 (C) in the case of an advertising feature, 

26 provides—
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•S 2145 IS 

1 (i) a representative example of the 

2 type of advertisement that may be deliv3 ered by the computer software; 

4 (ii) a clear description of—

5 (I) the estimated frequency with 

6 which each type of advertisement may 

7 be delivered; or 

8 (II) the factors on which the fre9 quency will depend; and 

10 (iii) a clear description of how the 

11 user can distinguish each type of advertise12 ment that the computer software delivers 

13 from advertisements generated by other 

14 software, Internet website operators, or 

15 services; 

16 (D) in the case of a distributed computing 

17 feature, provides a clear description of—

18 (i) the types of information or mes19 sages the computer software will cause the 

20 computer to transmit; 

21 (ii)(I) the estimated frequency with 

22 which the computer software will cause the 

23 computer to transmit such messages or in24 formation; or 
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•S 2145 IS 

1 (II) the factors on which the fre2 quency will depend; 

3 (iii) the estimated volume of such in4 formation or messages, and the likely im5 pact, if any, on the processing or commu6 nications capacity of the user’s computer; 

7 and 

8 (iv) the nature, volume, and likely im9 pact on the computer’s processing capacity 

10 of any computational or processing tasks 

11 the computer software will cause the com12 puter to perform in order to generate the 

13 information or messages the computer 

14 software will cause the computer to trans15 mit; 

16 (E) in the case of a settings modification 

17 feature, provides a clear description of the na18 ture of the modification, its function, and any 

19 collateral effects the modification may produce; 

20 and 

21 (F) provides a clear description of proce22 dures the user may follow to turn off such fea23 ture or uninstall the computer software. 

24 (b) CONSENT.—For purposes of section 2(a)(2), con25 sent requires—
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•S 2145 IS 

1 (1) consent by the user of the computer to the 

2 installation of the computer software; and 

3 (2) separate affirmative consent by the user of 

4 the computer to each information collection feature, 

5 advertising feature, distributed computing feature, 

6 and settings modification feature contained in the 

7 computer software. 

8 (c) UNINSTALL PROCEDURES.—For purposes of sec9 tion 2(a)(3), computer software shall—

10 (1) appear in the ‘‘Add/Remove Programs’’ 

11 menu or any similar feature, if any, provided by 

12 each operating system with which the computer soft13 ware functions; 

14 (2) be capable of being removed completely 

15 using the normal procedures provided by each oper16 ating system with which the computer software func17 tions for removing computer software; and 

18 (3) in the case of computer software with an 

19 advertising feature, include an easily identifiable link 

20 clearly associated with each advertisement that the 

21 software causes to be displayed, such that selection 

22 of the link by the user of the computer generates an 

23 on-screen window that informs the user about how 

24 to turn off the advertising feature or uninstall the 

25 computer software. 
7

•S 2145 IS 

1 SEC. 4. UNAUTHORIZED USE OF CERTAIN COMPUTER SOFT2 WARE. 

3 It is unlawful for any person who is not the user of 

4 a protected computer to use an information collection, ad5 vertising, distributed computing, or settings modification 

6 feature of computer software installed on that computer, 

7 if—

8 (1) the computer software was installed in vio9 lation of section 2; 

10 (2) the use in question falls outside the scope 

11 of what was described to the user of the computer 

12 in the notice provided pursuant to section 3(a); or 

13 (3) in the case of an information collection fea14 ture, the person using the feature fails to establish 

15 and maintain reasonable procedures to protect the 

16 security and integrity of personal information so col17 lected. 

18 SEC. 5. EXCEPTIONS. 

19 (a) PREINSTALLED SOFTWARE.—A person who in20 stalls, or authorizes, permits, or causes the installation of, 

21 computer software on a protected computer before the 

22 first retail sale of the computer shall be deemed to be in 

23 compliance with this Act if the user of the computer re24 ceives notice that would satisfy section 3(a)(2) and grants 

25 consent that would satisfy section 3(b)(2) prior to—
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•S 2145 IS 

1 (1) the initial collection of personal or network 

2 information, in the case of any information collection 

3 feature contained in the computer software; 

4 (2) the initial generation of an advertisement 

5 on the computer, in the case of any advertising fea6 ture contained in the computer software; 

7 (3) the initial transmission of information or 

8 messages, in the case of any distributed computing 

9 feature contained in the computer software; and 

10 (4) the initial modification of user settings, in 

11 the case of any settings modification feature. 

12 (b) OTHER EXCEPTIONS.—Sections 3(a)(2), 3(b)(2), 

13 and 4 do not apply to any feature of computer software 

14 that is reasonably needed to—

15 (1) provide capability for general purpose online 

16 browsing, electronic mail, or instant messaging, or 

17 for any optional function that is directly related to 

18 such capability and that the user knowingly chooses 

19 to use; 

20 (2) determine whether or not the user of the 

21 computer is licensed or authorized to use the com22 puter software; and 

23 (3) provide technical support for the use of the 

24 computer software by the user of the computer. 
9

•S 2145 IS 

1 (c) PASSIVE TRANSMISSION, HOSTING, OR LINK.—

2 For purposes of this Act, a person shall not be deemed 

3 to have installed computer software, or authorized, per4 mitted, or caused the installation of computer software, 

5 on a computer solely because that person provided—

6 (1) the Internet connection or other trans7 mission capability through which the software was 

8 delivered to the computer for installation; 

9 (2) the storage or hosting, at the direction of 

10 another person and without selecting the content to 

11 be stored or hosted, of the software or of an Internet 

12 website through which the software was made avail13 able for installation; or 

14 (3) a link or reference to an Internet website 

15 the content of which was selected and controlled by 

16 another person, and through which the computer 

17 software was made available for installation. 

18 (d) SOFTWARE RESIDENT IN TEMPORARY MEM19 ORY.—In the case of an installation of computer software 

20 that falls within the meaning of section 7(10)(B) but not 

21 within the meaning of section 7(10)(A), the requirements 

22 set forth in subsections (a)(1), (b)(1), and (c) of section 

23 3 shall not apply. 

24 (e) FEATURES ACTIVATED BY USER OPTIONS.—In 

25 the case of an information collection, advertising, distrib-
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•S 2145 IS 

1 uted computing, or settings modification feature that re2 mains inactive or turned off unless the user of the com3 puter subsequently selects certain optional settings or 

4 functions provided by the computer software, the require5 ments of subsections (a)(2) and (b)(2) of section 3 may 

6 be satisfied by providing the applicable disclosure and ob7 taining the applicable consent at the time the user selects 

8 the option that activates the feature, rather than at the 

9 time of initial installation. 

10 SEC. 6. ADMINISTRATION AND ENFORCEMENT. 

11 (a) IN GENERAL.—Except as provided in subsection 

12 (b), this Act shall be enforced by the Commission as if 

13 the violation of this Act were an unfair or deceptive act 

14 or practice proscribed under section 18(a)(1)(B) of the 

15 Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)). 

16 (b) ENFORCEMENT BY CERTAIN OTHER AGEN17 CIES.—Compliance with this Act shall be enforced 

18 under—

19 (1) section 8 of the Federal Deposit Insurance 

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

21 (A) national banks, and Federal branches 

22 and Federal agencies of foreign banks, by the 

23 Office of the Comptroller of the Currency; 

24 (B) member banks of the Federal Reserve 

25 System (other than national banks), branches
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•S 2145 IS 

1 and agencies of foreign banks (other than Fed2 eral branches, Federal agencies, and insured 

3 State branches of foreign banks), commercial 

4 lending companies owned or controlled by for5 eign banks, and organizations operating under 

6 section 25 or 25A of the Federal Reserve Act 

7 (12 U.S.C. 601 and 611), by the Board; and 

8 (C) banks insured by the Federal Deposit 

9 Insurance Corporation (other than members of 

10 the Federal Reserve System) and insured State 

11 branches of foreign banks, by the Board of Di12 rectors of the Federal Deposit Insurance Cor13 poration; 

14 (2) section 8 of the Federal Deposit Insurance 

15 Act (12 U.S.C. 1818), by the Director of the Office 

16 of Thrift Supervision, in the case of a savings asso17 ciation the deposits of which are insured by the Fed18 eral Deposit Insurance Corporation; 

19 (3) the Federal Credit Union Act (12 U.S.C. 

20 1751 et seq.) by the National Credit Union Adminis21 tration Board with respect to any Federal credit 

22 union; 

23 (4) part A of subtitle VII of title 49, United 

24 States Code, by the Secretary of Transportation 
12

•S 2145 IS 

1 with respect to any air carrier or foreign air carrier 

2 subject to that part; 

3 (5) the Packers and Stockyards Act, 1921 (7 

4 U.S.C. 181 et seq.) (except as provided in section 

5 406 of that Act (7 U.S.C. 226, 227)), by the Sec6 retary of Agriculture with respect to any activities 

7 subject to that Act; and 

8 (6) the Farm Credit Act of 1971 (12 U.S.C. 

9 2001 et seq.) by the Farm Credit Administration 

10 with respect to any Federal land bank, Federal land 

11 bank association, Federal intermediate credit bank, 

12 or production credit association. 

13 (c) EXERCISE OF CERTAIN POWERS.—For the pur14 pose of the exercise by any agency referred to in sub15 section (b) of its powers under any Act referred to in that 

16 subsection, a violation of this Act is deemed to be a viola17 tion of a requirement imposed under that Act. In addition 

18 to its powers under any provision of law specifically re19 ferred to in subsection (b), each of the agencies referred 

20 to in that subsection may exercise, for the purpose of en21 forcing compliance with any requirement imposed under 

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

23 (d) ACTIONS BY THE COMMISSION.—The Commis24 sion shall prevent any person from violating this Act in 

25 the same manner, by the same means, and with the same 
13

•S 2145 IS 

1 jurisdiction, powers, and duties as though all applicable 

2 terms and provisions of the Federal Trade Commission 

3 Act (15 U.S.C. 41 et seq.) were incorporated into and 

4 made a part of this Act. Any entity that violates any provi5 sion of that section is subject to the penalties and entitled 

6 to the privileges and immunities provided in the Federal 

7 Trade Commission Act in the same manner, by the same 

8 means, and with the same jurisdiction, power, and duties 

9 as though all applicable terms and provisions of the Fed10 eral Trade Commission Act were incorporated into and 

11 made a part of that section. 

12 (e) PRESERVATION OF COMMISSION AUTHORITY.—

13 Nothing contained in this section shall be construed to 

14 limit the authority of the Commission under any other 

15 provision of law. 

16 SEC. 7. ACTIONS BY STATES. 

17 (a) IN GENERAL.—

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

19 attorney general of a State has reason to believe 

20 that an interest of the residents of that State has 

21 been or is threatened or adversely affected by the 

22 engagement of any person in a practice that this Act 

23 prohibits, the State, as parens patriae, may bring a 

24 civil action on behalf of the residents of the State in 
14

•S 2145 IS 

1 a district court of the United States of appropriate 

2 jurisdiction—

3 (A) to enjoin that practice; 

4 (B) to enforce compliance with the rule; 

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

6 compensation on behalf of residents of the 

7 State; or 

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

9 may consider to be appropriate. 

10 (2) NOTICE.—

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

12 under paragraph (1), the attorney general of 

13 the State involved shall provide to the Commis14 sion—

15 (i) written notice of that action; and 

16 (ii) a copy of the complaint for that 

17 action. 

18 (B) EXEMPTION.—

19 (i) IN GENERAL.—Subparagraph (A) 

20 shall not apply with respect to the filing of 

21 an action by an attorney general of a State 

22 under this subsection, if the attorney gen23 eral determines that it is not feasible to 

24 provide the notice described in that sub25 paragraph before the filing of the action.
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•S 2145 IS 

1 (ii) NOTIFICATION.—In an action de2 scribed in clause (i), the attorney general 

3 of a State shall provide notice and a copy 

4 of the complaint to the Commission at the 

5 same time as the attorney general files the 

6 action. 

7 (b) INTERVENTION.—

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

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

10 right to intervene in the action that is the subject 

11 of the notice. 

12 (2) EFFECT OF INTERVENTION.—If the Com13 mission intervenes in an action under subsection (a), 

14 it shall have the right—

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

16 that arises in that action; and 

17 (B) to file a petition for appeal. 

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

19 civil action under subsection (a), nothing in this subtitle 

20 shall be construed to prevent an attorney general of a 

21 State from exercising the powers conferred on the attorney 

22 general by the laws of that State to—

23 (1) conduct investigations; 

24 (2) administer oaths or affirmations; or 
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•S 2145 IS 

1 (3) compel the attendance of witnesses or the 

2 production of documentary and other evidence. 

3 (d) ACTIONS BY THE COMMISSION.—In any case in 

4 which an action is instituted by or on behalf of the Com5 mission for violation of section 2 of this Act, no State may, 

6 during the pendency of that action, institute an action 

7 under subsection (a) against any defendant named in the 

8 complaint in that action for violation of that section. 

9 (e) VENUE; SERVICE OF PROCESS.—

10 (1) VENUE.—Any action brought under sub11 section (a) may be brought in the district court of 

12 the United States that meets applicable require13 ments relating to venue under section 1391 of title 

14 28, United States Code. 

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

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

17 in any district in which the defendant—

18 (A) is an inhabitant; or 

19 (B) may be found. 

20 SEC. 8. DEFINITIONS. 

21 In this Act: 

22 (1) ADVERTISEMENT.—The term ‘‘advertise23 ment’’ means a commercial promotion for a product 

24 or service, but does not include promotions for prod25 ucts or services that appear on computer software 
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•S 2145 IS 

1 help or support pages that are displayed in response 

2 to a request by the user. 

3 (2) ADVERTISING FEATURE.—The term ‘‘adver4 tising feature’’ means a function of computer soft5 ware that, when installed on a computer, delivers ad6 vertisements to the user of that computer. 

7 (3) AFFIRMATIVE CONSENT.—The term ‘‘af8 firmative consent’’ means consent expressed through 

9 action by the user of a computer other than default 

10 action specified by the installation sequence and 

11 independent from any other consent solicited from 

12 the user during the installation process. 

13 (4) CLEAR DESCRIPTION.—The term ‘‘clear de14 scription’’ means a description that is clear, con15 spicuous, concise, and in a font size that is at least 

16 as large as the largest default font displayed to the 

17 user by the software. 

18 (5) COMPUTER SOFTWARE.—The term ‘‘com19 puter software’’—

20 (A) means any program designed to cause 

21 a computer to perform a desired function or 

22 functions; and 

23 (B) does not include any cookie. 

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

25 file—
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•S 2145 IS 

1 (A) that is placed on a computer by an 

2 Internet service provider, interactive computer 

3 service, or Internet website; and 

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

5 information that can be read or recognized by 

6 an Internet service provider, interactive com7 puter service, or Internet website when the user 

8 of the computer uses or accesses such provider, 

9 service, or website. 

10 (7) DISTRIBUTED COMPUTING FEATURE.—The 

11 term ‘‘distributed computing feature’’ means a func12 tion of computer software that, when installed on a 

13 computer, transmits information or messages, other 

14 than personal or network information about the user 

15 of the computer, to any other computer without the 

16 knowledge or direction of the user and for purposes 

17 unrelated to the tasks or functions the user inten18 tionally performs using the computer. 

19 (8) FIRST RETAIL SALE.—The term ‘‘first retail 

20 sale’’ means the first sale of a computer, for a pur21 pose other than resale, after the manufacture, pro22 duction, or importation of the computer. For pur23 poses of this paragraph, the lease of a computer 

24 shall be considered a sale of the computer at retail.
19

•S 2145 IS 

1 (9) INFORMATION COLLECTION FEATURE.—The 

2 term ‘‘information collection feature’’ means a func3 tion of computer software that, when installed on a 

4 computer, collects personal or network information 

5 about the user of the computer and transmits such 

6 information to any other party on an automatic 

7 basis or at the direction of a party other than the 

8 user of the computer. 

9 (10) INSTALL.—The term ‘‘install’’ means—

10 (A) to write computer software to a com11 puter’s persistent storage medium, such as the 

12 computer’s hard disk, in such a way that the 

13 computer software is retained on the computer 

14 after the computer is turned off and subse15 quently restarted; or 

16 (B) to write computer software to a com17 puter’s temporary memory, such as random ac18 cess memory, in such a way that the software 

19 is retained and continues to operate after the 

20 user of the computer turns off or exits the 

21 Internet service, interactive computer service, or 

22 Internet website from which the computer soft23 ware was obtained. 

24 (11) NETWORK INFORMATION.—The term 

25 ‘‘network information’’ means—
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•S 2145 IS 

1 (A) an Internet protocol address or domain 

2 name of a user’s computer; or 

3 (B) a Uniform Resource Locator or other 

4 information that identifies Internet web sites or 

5 other online resources accessed by a user of a 

6 computer. 

7 (12) PERSONAL INFORMATION.—The term 

8 ‘‘personal information’’ means—

9 (A) a first and last name, whether given at 

10 birth or adoption, assumed, or legally changed; 

11 (B) a home or other physical address in12 cluding street name, name of a city or town, 

13 and zip code; 

14 (C) an electronic mail address or online 

15 username; 

16 (D) a telephone number; 

17 (E) a social security number; 

18 (F) any personal identification number; 

19 (G) a credit card number, any access code 

20 associated with the credit card, or both; 

21 (H) a birth date, birth certificate number, 

22 or place of birth; or 

23 (I) any password or access code. 
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•S 2145 IS 

1 (13) 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 (14) 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 (15) SETTINGS MODIFICATION FEATURE.—The 

9 term ‘‘settings modification feature’’ means a func10 tion of computer software that, when installed on a 

11 computer—

12 (A) modifies an existing user setting, with13 out direction from the user of the computer, 

14 with respect to another computer software ap15 plication previously installed on that computer; 

16 or 

17 (B) enables a user setting with respect to 

18 another computer software application pre19 viously installed on that computer to be modi20 fied in the future without advance notification 

21 to and consent from the user of the computer. 

22 (16) USER OF A COMPUTER.—The term ‘‘user 

23 of a computer’’ means a computer’s lawful owner or 

24 an individual who operates a computer with the au25 thorization of the computer’s lawful owner. 
22

•S 2145 IS 

1 SEC. 9. EFFECTIVE DATE. 

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

3 enactment of this Act.

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