II 

108TH CONGRESS 

2D SESSION S. 2131

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 26, 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 ‘‘Controlling Invasive 

5 and Unauthorized Software Act’’. 
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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. 
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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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1 (i) a representative full-size example 

2 of each type of advertisement that may be 

3 delivered by the computer software; 

4 (ii) a clear description of the esti5 mated frequency with which each type of 

6 advertisement may be delivered; and 

7 (iii) a clear description of how the 

8 user can distinguish each type of advertise9 ment that the computer software delivers 

10 from advertisements generated by other 

11 software, Internet website operators, or 

12 services; 

13 (D) in the case of a distributed computing 

14 feature, provides a clear description of—

15 (i) the types of information or mes16 sages the computer software will cause the 

17 computer to transmit; 

18 (ii) the estimated frequency with 

19 which the computer software will cause the 

20 computer to transmit such messages or in21 formation; 

22 (iii) the estimated volume of such in23 formation or messages, and the likely im24 pact, if any, on the processing or commu-
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1 nications capacity of the user’s computer; 

2 and 

3 (iv) the nature, volume, and likely im4 pact on the computer’s processing capacity 

5 of any computational or processing tasks 

6 the computer software will cause the com7 puter to perform in order to generate the 

8 information or messages the computer 

9 software will cause the computer to trans10 mit; 

11 (E) in the case of a settings modification 

12 feature, provides a clear description of the na13 ture of the modification, its function, and any 

14 collateral effects the modification may produce; 

15 and 

16 (F) provides a clear description of proce17 dures the user may follow to turn off such fea18 ture or uninstall the computer software. 

19 (b) CONSENT.—For purposes of section 2(a)(2), con20 sent requires—

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

22 installation of the computer software; and 

23 (2) separate affirmative consent by the user of 

24 the computer to each information collection feature, 

25 advertising feature, distributed computing feature, 
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1 and settings modification feature contained in the 

2 computer software. 

3 (c) UNINSTALL PROCEDURES.—For purposes of sec4 tion 2(a)(3), computer software shall—

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

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

7 each operating system with which the computer soft8 ware functions; 

9 (2) be capable of being removed completely 

10 using the normal procedures provided by each oper11 ating system with which the computer software func12 tions for removing computer software; and 

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

14 advertising feature, include an easily identifiable link 

15 clearly associated with each advertisement that the 

16 software causes to be displayed, such that selection 

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

18 on-screen window that informs the user about how 

19 to turn off the advertising feature or uninstall the 

20 computer software. 

21 SEC. 4. UNAUTHORIZED USE OF CERTAIN COMPUTER SOFT22 WARE. 

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

24 a protected computer to use an information collection, ad25 vertising, distributed computing, or settings modification 
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1 feature of computer software installed on that computer, 

2 if—

3 (1) the computer software was installed in vio4 lation of section 2; 

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

6 of what was described to the user of the computer 

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

8 (3) in the case of an information collection fea9 ture, the person using the feature fails to establish 

10 and maintain reasonable procedures to protect the 

11 security and integrity of personal information so col12 lected. 

13 SEC. 5. EXCEPTIONS. 

14 (a) PREINSTALLED SOFTWARE.—A person who in15 stalls, or authorizes, permits, or causes the installation of, 

16 computer software on a protected computer before the 

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

18 compliance with this Act if the user of the computer re19 ceives notice that would satisfy section 3(a)(2) and grants 

20 consent that would satisfy section 3(b)(2) prior to—

21 (1) the initial collection of personal or network 

22 information, in the case of any information collection 

23 feature contained in the computer software; 
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1 (2) the initial generation of an advertisement 

2 on the computer, in the case of any advertising fea3 ture contained in the computer software; 

4 (3) the initial transmission of information or 

5 messages, in the case of any distributed computing 

6 feature contained in the computer software; and 

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

8 the case of any settings modification feature. 

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

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

11 that is reasonably needed to—

12 (1) provide capability for general purpose online 

13 browsing, electronic mail, or instant messaging, or 

14 for any optional function that is directly related to 

15 such capability and that the user knowingly chooses 

16 to use; 

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

18 computer is licensed or authorized to use the com19 puter software; and 

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

21 computer software by the user of the computer. 

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

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

24 to have installed computer software, or authorized, per-
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1 mitted, or caused the installation of computer software, 

2 on a computer solely because that person provided—

3 (1) the Internet connection or other trans4 mission capability through which the software was 

5 delivered to the computer for installation; 

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

7 another person and without selecting the content to 

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

9 website through which the software was made avail10 able for installation; or 

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

12 the content of which was selected and controlled by 

13 another person, and through which the computer 

14 software was made available for installation. 

15 (d) SOFTWARE RESIDENT IN TEMPORARY MEM16 ORY.—In the case of an installation of computer software 

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

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

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

20 3 shall not apply. 

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

22 the case of an information collection, advertising, distrib23 uted computing, or settings modification feature that re24 mains inactive or turned off unless the user of the com25 puter subsequently selects certain optional settings or 
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1 functions provided by the computer software, the require2 ments of subsections (a)(2) and (b)(2) of section 3 may 

3 be satisfied by providing the applicable disclosure and ob4 taining the applicable consent at the time the user selects 

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

6 time of initial installation. 

7 SEC. 6. ADMINISTRATION AND ENFORCEMENT. 

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

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

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

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

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

13 (b) ENFORCEMENT BY CERTAIN OTHER AGEN14 CIES.—Compliance with this Act shall be enforced 

15 under—

16 (1) section 8 of the Federal Deposit Insurance 

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

18 (A) national banks, and Federal branches 

19 and Federal agencies of foreign banks, by the 

20 Office of the Comptroller of the Currency; 

21 (B) member banks of the Federal Reserve 

22 System (other than national banks), branches 

23 and agencies of foreign banks (other than Fed24 eral branches, Federal agencies, and insured 

25 State branches of foreign banks), commercial 
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1 lending companies owned or controlled by for2 eign banks, and organizations operating under 

3 section 25 or 25A of the Federal Reserve Act 

4 (12 U.S.C. 601 and 611), by the Board; and 

5 (C) banks insured by the Federal Deposit 

6 Insurance Corporation (other than members of 

7 the Federal Reserve System) and insured State

8 branches of foreign banks, by the Board of Di9 rectors of the Federal Deposit Insurance Cor10 poration; 

11 (2) section 8 of the Federal Deposit Insurance 

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

13 of Thrift Supervision, in the case of a savings asso14 ciation the deposits of which are insured by the Fed15 eral Deposit Insurance Corporation; 

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

17 1751 et seq.) by the National Credit Union Adminis18 tration Board with respect to any Federal credit 

19 union; 

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

21 States Code, by the Secretary of Transportation 

22 with respect to any air carrier or foreign air carrier 

23 subject to that part; 

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

25 U.S.C. 181 et seq.) (except as provided in section 
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1 406 of that Act (7 U.S.C. 226, 227)), by the Sec2 retary of Agriculture with respect to any activities 

3 subject to that Act; and 

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

5 2001 et seq.) by the Farm Credit Administration 

6 with respect to any Federal land bank, Federal land 

7 bank association, Federal intermediate credit bank, 

8 or production credit association. 

9 (c) EXERCISE OF CERTAIN POWERS.—For the pur10 pose of the exercise by any agency referred to in sub11 section (b) of its powers under any Act referred to in that 

12 subsection, a violation of this Act is deemed to be a viola13 tion of a requirement imposed under that Act. In addition 

14 to its powers under any provision of law specifically re15 ferred to in subsection (b), each of the agencies referred 

16 to in that subsection may exercise, for the purpose of en17 forcing compliance with any requirement imposed under 

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

19 (d) ACTIONS BY THE COMMISSION.—The Commis20 sion shall prevent any person from violating this Act in 

21 the same manner, by the same means, and with the same 

22 jurisdiction, powers, and duties as though all applicable 

23 terms and provisions of the Federal Trade Commission 

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

25 made a part of this Act. Any entity that violates any provi-
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1 sion of that section is subject to the penalties and entitled 

2 to the privileges and immunities provided in the Federal 

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

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

5 as though all applicable terms and provisions of the Fed6 eral Trade Commission Act were incorporated into and 

7 made a part of that section. 

8 (e) PRESERVATION OF COMMISSION AUTHORITY.—

9 Nothing contained in this section shall be construed to 8 

10 limit the authority of the Commission under any other 

11 provision of law. 

12 SEC. 7. ACTIONS BY STATES. 

13 (a) IN GENERAL.—

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

15 attorney general of a State has reason to believe 

16 that an interest of the residents of that State has 

17 been or is threatened or adversely affected by the 

18 engagement of any person in a practice that this Act 

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

20 civil action on behalf of the residents of the State in 

21 a district court of the United States of appropriate 

22 jurisdiction—

23 (A) to enjoin that practice; 

24 (B) to enforce compliance with the rule; 
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1 (C) to obtain damage, restitution, or other 

2 compensation on behalf of residents of the 

3 State; or 

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

5 may consider to be appropriate. 

6 (2) NOTICE.—

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

8 under paragraph (1), the attorney general of 

9 the State involved shall provide to the Commis10 sion—

11 (i) written notice of that action; and 

12 (ii) a copy of the complaint for that 

13 action. 

14 (B) EXEMPTION.—

15 (i) IN GENERAL.—Subparagraph (A) 

16 shall not apply with respect to the filing of 

17 an action by an attorney general of a State 

18 under this subsection, if the attorney gen19 eral determines that it is not feasible to 

20 provide the notice described in that sub21 paragraph before the filing of the action. 

22 (ii) NOTIFICATION.—In an action de23 scribed in clause (i), the attorney general 

24 of a State shall provide notice and a copy 

25 of the complaint to the Commission at the 
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1 same time as the attorney general files the 

2 action. 

3 (b) INTERVENTION.—

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

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

6 right to intervene in the action that is the subject 

7 of the notice. 

8 (2) EFFECT OF INTERVENTION.—If the Com9 mission intervenes in an action under subsection (a), 

10 it shall have the right—

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

12 that arises in that action; and 

13 (B) to file a petition for appeal. 

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

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

16 shall be construed to prevent an attorney general of a 

17 State from exercising the powers conferred on the attorney 

18 general by the laws of that State to—

19 (1) conduct investigations; 

20 (2) administer oaths or affirmations; or 

21 (3) compel the attendance of witnesses or the 

22 production of documentary and other evidence. 

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

24 which an action is instituted by or on behalf of the Com25 mission for violation of section 2 of this Act, no State may, 
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1 during the pendency of that action, institute an action 

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

3 complaint in that action for violation of that section. 

4 (e) VENUE; SERVICE OF PROCESS.—

5 (1) VENUE.—Any action brought under sub6 section (a) may be brought in the district court of 

7 the United States that meets applicable require8 ments relating to venue under section 1391 of title 

9 28, United States Code. 

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

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

12 in any district in which the defendant—

13 (A) is an inhabitant; or 

14 (B) may be found. 

15 SEC. 8. DEFINITIONS. 

16 In this Act: 

17 (1) ADVERTISEMENT.—The term ‘‘advertise18 ment’’ means a commercial promotion for a product 

19 or service, but does not include promotions for prod20 ucts or services that appear on computer software 

21 help or support pages that are displayed in response 

22 to a request by the user. 

23 (2) ADVERTISING FEATURE.—The term ‘‘adver24 tising feature’’ means a function of computer soft-
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1 ware that, when installed on a computer, delivers ad2 vertisements to the user of that computer. 

3 (3) AFFIRMATIVE CONSENT.—The term ‘‘af4 firmative consent’’ means consent expressed through 

5 action by the user of a computer other than default 

6 action specified by the installation sequence and 

7 independent from any other consent solicited from 

8 the user during the installation process. 

9 (4) CLEAR DESCRIPTION.—The term ‘‘clear de10 scription’’ means a description that is clear, con11 spicuous, concise, and in a font size that is at least 

12 as large as the largest default font displayed to the 

13 user by the software. 

14 (5) COMPUTER SOFTWARE.—The term ‘‘com15 puter software’’—

16 (A) means any program designed to cause 

17 a computer to perform a desired function or 

18 functions; and 

19 (B) does not include any cookie. 

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

21 file—

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

23 Internet service provider, interactive computer 

24 service, or Internet website; and 
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1 (B) the sole function of which is to record 

2 information that can be read or recognized by 

3 an Internet service provider, interactive com4 puter service, or Internet website when the user 

5 of the computer uses or accesses such provider, 

6 service, or website. 

7 (7) DISTRIBUTED COMPUTING FEATURE.—The 

8 term ‘‘distributed computing feature’’ means a func9 tion of computer software that, when installed on a 

10 computer, transmits information or messages, other 

11 than personal or network information about the user 

12 of the computer, to any other computer without the 

13 knowledge or direction of the user and for purposes 

14 unrelated to the tasks or functions the user inten15 tionally performs using the computer. 

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

17 sale’’ means the first sale of a computer, for a pur18 pose other than resale, after the manufacture, pro19 duction, or importation of the computer. For pur20 poses of this paragraph, the lease of a computer 

21 shall be considered a sale of the computer at retail. 

22 (9) INFORMATION COLLECTION FEATURE.—The 

23 term ‘‘information collection feature’’ means a func24 tion of computer software that, when installed on a 

25 computer, collects personal or network information 
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1 about the user of the computer and transmits such 

2 information to any other party on an automatic 

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

4 user of the computer. 

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

6 (A) to write computer software to a com7 puter’s persistent storage medium, such as the 

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

9 computer software is retained on the computer 

10 after the computer is turned off and subse11 quently restarted; or 

12 (B) to write computer software to a com13 puter’s temporary memory, such as random ac14 cess memory, in such a way that the software 

15 is retained and continues to operate after the 

16 user of the computer turns off or exits the 

17 Internet service, interactive computer service, or 

18 Internet website from which the computer soft19 ware was obtained. 

20 (11) NETWORK INFORMATION.—The term ‘‘net21 work information’’ means—

22 (A) an Internet protocol address or domain 

23 name of a user’s computer; 
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1 (B) a cookie or other unique identifier of 

2 a computer user or a computer user’s computer; 

3 or 

4 (C) a Uniform Resource Locator or other 

5 information that identifies Internet websites or 

6 other online resources accessed by a user of a 

7 computer. 

8 (12) PERSONAL INFORMATION.—The term 

9 ‘‘personal information’’ means—

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

11 birth or adoption, assumed, or legally changed; 

12 (B) a home or other physical address in13 cluding street name, name of a city or town, 

14 and zip code; 

15 (C) an electronic mail address or online 

16 username; 

17 (D) a telephone number; 

18 (E) a social security number; 

19 (F) any personal identification number; 

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

21 associated with the credit card, or both; 

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

23 or place of birth; or 

24 (I) any password or access code. 
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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 an individual who operates a 

24 computer with the authorization of the computer’s 

25 lawful owner. 
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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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