I 

108TH CONGRESS 

2D SESSION H. R. 4255

To prevent deceptive software transmission practices in order to safeguard 

computer privacy, maintain computer control, and protect Internet commerce. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 30, 2004

Mr. INSLEE introduced the following bill; which was referred to the Committee 

on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each 

case for consideration of such provisions as fall within the jurisdiction of 

the committee concerned 

A BILL

To prevent deceptive software transmission practices in order 

to safeguard computer privacy, maintain computer control, and protect Internet commerce.

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 ‘‘Computer Software 

5 Privacy and Control Act’’. 

6 SEC. 2. DEFINITIONS. 

7 As used in this Act, the following definitions apply: 
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1 (1) The terms ‘‘computer’’ and ‘‘protected com2 puter’’ have the meanings given such terms in sec3 tion 1030(e) of title 18, United States Code. 

4 (2) The term ‘‘computer software’’ means a se5 quence of instructions written in any programming 

6 language that is stored or executed on a computer. 

7 Such term shall not include computer software that 

8 is a Web page, or data components of Web pages 

9 that are not executable independently of the Web 

10 page. 

11 (3) The term ‘‘disable’’, with regards to com12 puter software, or a component thereof, means to 

13 permanently prevent such software or component 

14 from executing any of the functions described in sec15 tion 3 that such software is otherwise capable of exe16 cuting, unless the owner or operator of a protected 

17 computer takes a subsequent affirmative action to 

18 enable the execution of such functions. 

19 (4) The terms ‘‘execute’’, ‘‘execution’’, and 

20 ‘‘executable’’, when used with respect to computer 

21 software, refer to the performance of the functions 

22 or the carrying out of the instructions of the com23 puter software. 

24 (5) The term ‘‘first retail sale’’ means the first 

25 sale of a computer, for a purpose other than resale, 
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1 after the manufacture, production, or importation of 

2 the computer. For purposes of this paragraph, the 

3 lease of a computer shall be considered a sale of the 

4 computer at retail. 

5 (6) The term ‘‘Internet’’ has the meaning given 

6 such term in section 1302(6) of the Children’s On7 line Privacy Protection Act of 1998 (15 U.S.C. 

8 6501(6)). 

9 (7) The term ‘‘owner or operator’’, with respect 

10 to a protected computer, shall not include any per11 son who owns a computer prior to the first retail 

12 sale of such computer. 

13 (8) The term ‘‘person’’ has the meaning given 

14 that term in section 1030(e)(12) of title 18, United 

15 States Code. 

16 (9) The term ‘‘personal information’’ means—

17 (A) a first and last name; 

18 (B) a home or other physical address in19 cluding street name; 

20 (C) an electronic mail address; 

21 (D) a telephone number; 

22 (E) a Social Security number; 

23 (F) a credit card or bank account number 

24 or any password or access code associated with 

25 a credit card or bank account; and 
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1 (G) a birth certificate number. 

2 (10) The term ‘‘removal utility’’ means a means 

3 by which the owner or operator of a protected com4 puter can remove, delete, or disable computer soft5 ware, or a component thereof. 

6 (11) The term ‘‘transmit’’ means to transfer, 

7 send, or make available computer software, or any 

8 component thereof, via the Internet or any other me9 dium, including local area networks of computers, 

10 other non-wire transmission, and disc or other data 

11 storage device, for the purpose of or resulting in an 

12 economic benefit to the person transferring, sending, 

13 or making available such computer software, or com14 ponent thereof, derived from the transmission or 

15 execution of such software, or component thereof. 

16 Such term shall not include any action by a person 

17 providing—

18 (A) the Internet connection, telephone con19 nection, or other means of transmission capa20 bility such as a compact disk or digital video 

21 disk through which the software was made 

22 available; 

23 (B) the storage or hosting of the software 

24 program or an Internet Web page through 

25 which the software was made available; or 
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1 (C) an information location tool, such as a 

2 directory, index, reference, pointer, or hypertext 

3 link, through which the user of the computer lo4 cated the software, 

5 unless such person receives a direct economic benefit 

6 from the execution of such software on the protected 

7 computer. 

8 (12) The term ‘‘Web page’’ means a location 

9 that has a single Uniform Resource Locator with re10 spect to the World Wide Web or other single location 

11 with respect to the Internet. 

12 SEC. 3. UNFAIR AND DECEPTIVE ACTS AND PRACTICES IN 

13 THE TRANSMISSION OF COMPUTER SOFT14 WARE. 

15 (a) DECEPTIVE ACTS PROHIBITED.—It is unlawful 

16 for any person knowingly to transmit to a protected com17 puter owned or operated by another person, or transmit 

18 to a protected computer prior to the first retail sale of 

19 such computer, any computer software, or any component 

20 thereof, that—

21 (1) collects personal information about an 

22 owner or operator of that protected computer and 

23 transfers such information to any person other than 

24 such owner or operator; 
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1 (2) monitors or analyzes the content of the 

2 Internet web pages accessed by an owner or operator 

3 of such computer and transfers information regard4 ing the accessing of such web pages to any person 

5 other than such owner or operator; or 

6 (3) modifies default computer settings or com7 puter settings previously selected by the owner or 

8 operator of that computer that affect—

9 (A) the Web page that is first displayed by 

10 computer software used to access and navigate 

11 the Internet, such as an Internet browser; 

12 (B) Internet connection settings, the modi13 fication of which can result in financial charges 

14 to the owner or operator without the owner or 

15 operator’s knowledge; or 

16 (C) the actions or operations of any service 

17 offered by a provider of a service used to search 

18 the Internet, or files and data stored on the 

19 protected computer, 

20 unless, before the execution of the functions described in 

21 paragraphs (1) through (3), notice of such functions is 

22 provided to, and consent to such execution is obtained 

23 from, such owner or operator, and such software, or com24 ponent thereof, includes a removal utility. 
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1 (b) REQUIREMENTS FOR ADVERTISING SOFT2 WARE.—

3 (1) NOTICE AND CONSENT.—It is unlawful for 

4 any person knowingly to transmit to a protected 

5 computer owned or operated by another person, or 

6 transmit to a protected computer prior to the first 

7 retail sale of such computer, any computer software, 

8 or any component thereof, that includes a function 

9 to deliver or display advertisements, unless, before 

10 the execution of such function, notice of such func11 tion is provided to, and the consent to such execu12 tion is obtained from, such owner or operator, and 

13 such software, or component thereof, includes a re14 moval utility. 

15 (2) SOFTWARE DISPLAYED AS A WEB PAGE.—

16 The requirements of paragraph (1) shall apply to 

17 computer software containing a function to deliver 

18 advertisements displayed as a Web page or by other 

19 means, but shall not include software that is a Web 

20 page or a component of a Web page. 

21 (c) KNOWLEDGE REQUIREMENT.—For purposes of 

22 this section, the term ‘‘knowingly’’, used with respect to 

23 transmitting computer software, or a component thereof, 

24 means that the person transmitting has actual knowledge 

25 that the software or component transmitted has the capac-
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1 ity to execute any of the functions described in this sec2 tion. 

3 (d) NOTICE AND CONSENT REQUIREMENTS.—

4 (1) NOTICE.—The notice required under sub5 sections (a) and (b)—

6 (A) shall not be materially false or mis7 leading; and 

8 (B) shall include a description of and di9 rections for the removal utility, or instructions 

10 for the removal, deletion, or disabling of the 

11 software, or component thereof. 

12 (2) CONSENT.—The consent required under 

13 subsections (a) and (b) shall be contiguous to the 

14 notice required under such subsections, such that 

15 the owner or operator of the protected computer 

16 may reasonably understand the function or functions 

17 to which such consent is granted. 

18 (3) DEFINITION.—For purposes of this sub19 section, the term ‘‘materially false or misleading no20 tice’’ includes—

21 (A) a failure to describe any of the func22 tions requiring notice; and 

23 (B) an unauthorized material modification 

24 to or obstruction of a notice, description, or 

25 warning provided by computer software pre-
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1 viously stored or executed on the protected com2 puter. 

3 SEC. 4. ENFORCEMENT. 

4 (a) FEDERAL TRADE COMMISSION.—

5 (1) UNFAIR OR DECEPTIVE ACT OR PRAC6 TICE.—A violation of this Act shall be treated as a 

7 violation of a rule defining an unfair or deceptive act 

8 or practice prescribed under section 18(a) of the 

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

10 (2) ACTIONS BY THE COMMISSION.—The Fed11 eral Trade Commission shall enforce this Act in the 

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

13 same jurisdiction, powers, and duties as though all 

14 applicable terms and provisions of the Federal Trade 

15 Commission Act (15 U.S.C. 41 et seq.) were incor16 porated into and made a part of this Act. 

17 (b) CRIMINAL PENALTIES.—

18 (1) IN GENERAL.—Section 1030(a) of title 18, 

19 United States Code, is amended—

20 (A) by inserting ‘‘or’’ at the end of para21 graph (7); and 

22 (B) by adding at the end the following: 

23 ‘‘(8) knowingly causes the transmission of a 

24 program, information, code, or command with the 

25 intent to obtain access without authorization or ex-
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1 ceeding authorized access to a protected computer 

2 by means of a knowingly and materially false or mis3 leading notice or description of function, effect, or 

4 origin of such computer software;’’. 

5 (2) DEFINITIONS.—Section 1030(e) of title 18, 

6 United States Code, is amended—

7 (A) in paragraph (6)—

8 (i) by inserting ‘‘, or to obtain further 

9 access to or control over the computer’’ 

10 after ‘‘in the computer’’; and 

11 (ii) by striking ‘‘or alter’’ and insert12 ing ‘‘, alter, access, or control’’; and 

13 (B) by adding at the end the following: 

14 ‘‘(13) The term ‘knowingly and materially false 

15 or misleading notice or description’ includes a know16 ing and material omission regarding function of pro17 gram, information, code, or command that provides 

18 access to or control over a protected computer.’’. 

19 (3) PENALTIES.—Section 1030(c)(3) of title 18, 

20 United States Code is amended—

21 (A) in subparagraph (A), by striking ‘‘or 

22 (a)(7)’’ and inserting ‘‘(a)(7), or (a)(8)’’; and 

23 (B) in subparagraph (B), by striking ‘‘or 

24 (a)(7)’’ and inserting ‘‘(a)(7), or (a)(8)’’. 

25 (c) STATE ACTION.—
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1 (1) IN GENERAL.—In any case in which the at2 torney general of a State has reason to believe that 

3 an interest of the residents of that State has been 

4 or is threatened or adversely affected by a violation 

5 of section 3 of this Act, the State may bring a civil 

6 action on behalf of the residents of the State in a 

7 district court of the United States of appropriate ju8 risdiction to—

9 (A) enjoin that practice; 

10 (B) enforce compliance with this Act; or 

11 (C) obtain damages, restitution, or other 

12 compensation on behalf of residents of the 

13 State. 

14 (2) NOTICE.—

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

16 under paragraph (1), the attorney general of 

17 the State involved shall provide to the Federal 

18 Trade Commission—

19 (i) written notice of that action; and 

20 (ii) a copy of the complaint for that 

21 action. 

22 (B) EXEMPTION.—Subparagraph (A) shall 

23 not apply with respect to the filing of an action 

24 by an attorney general of a State under this 

25 subsection, if the attorney general determines 
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1 that it is not feasible to provide the notice de2 scribed in that subparagraph before filing of the 

3 action. In such case, the attorney general of a 

4 State shall provide notice and a copy of the 

5 complaint to the Federal Trade Commission at 

6 the same time as the attorney general files the 

7 action. 

8 (3) INTERVENTION BY FEDERAL TRADE COM9 MISSION.—

10 (A) IN GENERAL.—On receiving notice 

11 under paragraph (2), the Federal Trade Com12 mission shall have the right to intervene in the 

13 action that is the subject of the notice. 

14 (B) EFFECT OF INTERVENTION.—If the 

15 Federal Trade Commission intervenes in an ac16 tion under subparagraph (A), it shall have the 

17 right—

18 (i) to be heard with respect to any 

19 matter that arises in that action; and 

20 (ii) to file a petition for appeal. 

21 (4) CONSTRUCTION.—For purposes of bringing 

22 any civil action under paragraph (1), nothing in this 

23 Act shall be construed to prevent an attorney gen24 eral of a State from exercising the powers conferred 
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1 on the attorney general by the laws of that State 

2 to—

3 (A) conduct investigations; 

4 (B) administer oaths or affirmations; or 

5 (C) compel the attendance of witnesses or 

6 the production of documentary and other evi7 dence. 

8 (5) PREEMPTION.—In any case in which an ac9 tion is instituted by or on behalf of the Commission 

10 for a violation of section 3, no State may, during the 

11 pendency of that action, institute an action under 

12 paragraph (1) against any defendant named in the 

13 complaint in that action. 

14 (6) SERVICE OF PROCESS.—In an action 

15 brought under paragraph (1), process may be served 

16 in any district in which the defendant—

17 (A) is an inhabitant; or 

18 (B) may be found. 

19 SEC. 5. EFFECT ON OTHER LAWS. 

20 This Act supersedes any statute, regulation, or rule 

21 of a State or political subdivision of a State that expressly 

22 regulates the transmission of computer software similar 

23 to that described in section 3. 
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1 SEC. 6. LAW ENFORCEMENT REPORTING REQUIREMENTS. 

2 (a) SEMIANNUAL REPORTS TO CONGRESS ON TRANS3 MISSION OF COMPUTER SOFTWARE FOR SURVEILLANCE

4 ACTIVITIES.—Not later than 1 year after the date of en5 actment of this Act, and every 6 months thereafter, the 

6 Attorney General shall transmit to the Committees on the 

7 Judiciary of the Senate and of the House of Representa8 tives a report concerning any warrant, order, or extension 

9 of an order applied for by law enforcement agencies of 

10 the Department of Justice, whose implementation involved 

11 the transmission or execution of computer software on a 

12 protected computer to record computer activity or inter13 cept any wire, oral, or electronic communications. Such 

14 reports shall include information concerning—

15 (1) the type of warrant, order, or extension of 

16 an order applied for; 

17 (2) the information sought by the warrant, pe18 riod of interceptions authorized by the order, and 

19 the number and duration of any extensions of the 

20 warrant or order; 

21 (3) the offense specified in the application, war22 rant, order, or extension of an order; 

23 (4) the identity of the applying investigative or 

24 law enforcement officer and agency making the ap25 plication and the person authorizing the application; 
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1 (5) the nature of the facilities from which or 

2 place where activities were to be recorded or commu3 nications were to be intercepted; 

4 (6) a general description of the recordings or 

5 interceptions made under such order or extension, 

6 including—

7 (A) the approximate nature and frequency 

8 of incriminating activities recorded or commu9 nications intercepted; 

10 (B) the approximate nature and frequency 

11 of other activities recorded or communications 

12 intercepted; 

13 (C) the approximate number of persons 

14 whose activities were recorded or communica15 tions were intercepted; 

16 (D) the number of warrants or orders in 

17 which encryption was encountered and whether 

18 such encryption prevented law enforcement 

19 from obtaining access to any information pursu20 ant to such warrant or the plain text of commu21 nications intercepted pursuant to such order; 

22 and 

23 (E) the approximate nature, amount, and 

24 cost of the manpower and other resources used 

25 in the recordings or interceptions; 
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1 (7) the number of arrests resulting from record2 ings or interceptions made under such warrant, 

3 order, or extension of an order, and the offenses for 

4 which arrests were made; 

5 (8) the number of trials resulting from such re6 cordings or interceptions; 

7 (9) the number of motions to suppress made 

8 with respect to such recordings or interceptions, and 

9 the number of such motions granted or denied; 

10 (10) the number of convictions resulting from 

11 such recordings or interceptions and the offenses for 

12 which the convictions were obtained, and a general 

13 assessment of the importance of the recordings or 

14 interceptions; and 

15 (11) the specific persons authorizing the use of 

16 such computer software in the implementation of 

17 such warrant, order, or extension of an order.

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