II 

Calendar No. 467 

109TH CONGRESS 

2D SESSION S. 687 

[Report No. 109–262] 

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 

MARCH 20, 2005 

Mr. BURNS (for himself, Mr. WYDEN, Mrs. BOXER, Mr. NELSON of Florida, 

and Ms. SNOWE) introduced the following bill; which was read twice and 

referred to the Committee on Commerce, Science, and Transportation 

JUNE 12, 2006 

Reported by Mr. STEVENS, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

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, 


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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

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

3 ‘‘Software Principles Yielding Better Levels of Consumer 

4 Knowledge Act’’ or the ‘‘SPY BLOCK Act’’. 

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

6 this Act is as follows: 

Sec. 1. Short title. 

Sec. 2. Prohibited practices related to software installation in general. 

Sec. 3. Installing surreptitious information collection features on a user’s computer. 

Sec. 4. Adware that conceals its operation. 

Sec. 5. Other practices that thwart user control of computer. 

Sec. 6. Limitations on liability. 

Sec. 7. FTC rulemaking authority. 

Sec. 8. Administration and enforcement. 

Sec. 9. Actions by States. 

Sec. 10. Effect on other laws. 

Sec. 11. Liability protections for anti-spyware software or services. 

Sec. 12. Penalties for certain unauthorized activities relating to computers.

Sec. 13. Definitions. 

Sec. 14. Effective date. 

7 SEC. 2. PROHIBITED PRACTICES RELATED TO SOFTWARE 

8 INSTALLATION IN GENERAL. 

9 (a) SURREPTITIOUS INSTALLATION.— 

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

11 who is not an authorized user of a protected com12 puter to cause the installation of software on the 

13 computer in a manner that— 

14 (A) conceals from the user of the computer 

15 the fact that the software is being installed; or 

16 (B) prevents the user of the computer 

17 from having an opportunity to knowingly grant 

18 or withhold consent to the installation. 


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1 (2) EXCEPTION.—This subsection does not 

2 apply to— 

3 (A) the installation of software that falls 

4 within the scope of a previous grant of author5 ization by an authorized user; 

6 (B) the installation of an upgrade to a 

7 software program that has already been in8 stalled on the computer with the authorization 

9 of an authorized user; 

10 (C) the installation of software before the 

11 first retail sale and delivery of the computer; or 

12 (D) the installation of software that ceases 

13 to operate when the user of the computer exits 

14 the software or service through which the user 

15 accesses the Internet, if the software so in16 stalled does not begin to operate again when 

17 the user accesses the Internet via that computer 

18 in the future. 

19 (b) MISLEADING INDUCEMENTS TO INSTALL.—It is 

20 unlawful for a person who is not an authorized user of 

21 a protected computer to induce an authorized user of the 

22 computer to consent to the installation of software on the 

23 computer by means of a materially false or misleading rep24 resentation concerning— 


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1 (1) the identity of an operator of an Internet 

2 website or online service at which the software is 

3 made available for download from the Internet; 

4 (2) the identity of the author, publisher, or au5 thorized distributor of the software; 

6 (3) the nature or function of the software; or 

7 (4) the consequences of not installing the soft8 ware. 

9 (c) PREVENTING REASONABLE EFFORTS TO

10 UNINSTALL.— 

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

12 who is not an authorized user of a protected com13 puter to cause the installation of software on the 

14 computer if the software cannot subsequently be 

15 uninstalled or disabled by an authorized user 

16 through a program removal function that is usual 

17 and customary with the user’s operating system, or 

18 otherwise as clearly and conspicuously disclosed to 

19 the user. 

20 (2) LIMITATIONS.— 

21 (A) AUTHORITY TO UNINSTALL.—Software 

22 that enables an authorized user of a computer, 

23 such as a parent, employer, or system adminis24 trator, to choose to prevent another user of the 

25 same computer from uninstalling or disabling 


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1 the software shall not be considered to prevent 

2 reasonable efforts to uninstall or disable the 

3 software within the meaning of this subsection 

4 if at least 1 authorized user retains the ability 

5 to uninstall or disable the software. 

6 (B) CONSTRUCTION.—This subsection 

7 shall not be construed to require individual fea8 tures or functions of a software program, up9 grades to a previously installed software pro10 gram, or software programs that were installed 

11 on a bundled basis with other software or with 

12 hardware to be capable of being uninstalled or 

13 disabled separately from such software or hard14 ware. 

15 SEC. 3. INSTALLING SURREPTITIOUS INFORMATION COL16 LECTION FEATURES ON A USER’S COMPUTER. 

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

18 is not an authorized user of a protected computer to— 

19 (1) cause the installation on that computer of 

20 software that includes a surreptitious information 

21 collection feature; or 

22 (2) use software installed in violation of para23 graph (1) to collect information about a user of the 

24 computer or the use of a protected computer by that 

25 user. 


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1 (b) AUTHORIZATION STATUS.—This section shall not 

2 be interpreted to prohibit a person from causing the instal3 lation of software that collects and transmits only infor4 mation that is reasonably needed to determine whether or 

5 not the user of a protected computer is licensed or author6 ized to use the software. 

7 (c) SURREPTITIOUS INFORMATION COLLECTION

8 FEATURE DEFINED.—For purposes of this section, the 

9 term ‘‘surreptitious information collection feature’’ means 

10 a feature of software that— 

11 (1) collects information about a user of a pro12 tected computer or the use of a protected computer 

13 by that user, and transmits such information to any 

14 other person or computer— 

15 (A) on an automatic basis or at the direc16 tion of person other than an authorized user of 

17 the computer, such that no authorized user 

18 knowingly triggers or controls the collection and 

19 transmission; 

20 (B) in a manner that is not transparent to 

21 an authorized user at or near the time of the 

22 collection and transmission, such that no au23 thorized user is likely to be aware of it when in24 formation collection and transmission are occur25 ring; and 


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1 (C) for purposes other than— 

2 (i) facilitating the proper technical 

3 functioning of a capability, function, or 

4 service that an authorized user of the com5 puter has knowingly used, executed, or en6 abled; or 

7 (ii) enabling the provider of an online 

8 service knowingly used or subscribed to by 

9 an authorized user of the computer to 

10 monitor or record the user’s usage of the 

11 service, or to customize or otherwise affect 

12 the provision of the service to the user 

13 based on such usage; and 

14 (2) begins to collect and transmit such informa15 tion without prior notification that— 

16 (A) clearly and conspicuously discloses to 

17 an authorized user of the computer the type of 

18 information the software will collect and the 

19 types of ways the information may be used and 

20 distributed; and 

21 (B) is provided at a time and in a manner 

22 such that an authorized user of the computer 

23 has an opportunity, after reviewing the infor24 mation contained in the notice, to prevent ei25 ther— 


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1 (i) the installation of the software; or 

2 (ii) the beginning of the operation of 

3 the information collection and transmission 

4 capability described in paragraph (1). 

5 SEC. 4. ADWARE THAT CONCEALS ITS OPERATION. 

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

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

8 the installation on that computer of software that causes 

9 advertisements to be displayed to the user without a label 

10 or other reasonable means of identifying to the user of 

11 the computer, each time such an advertisement is dis12 played, which software caused the advertisement’s deliv13 ery. 

14 (b) EXCEPTION.—Software that causes advertise15 ments to be displayed without a label or other reasonable 

16 means of identification shall not give rise to liability under 

17 subsection (a) if those advertisements are displayed to a 

18 user of the computer— 

19 (1) only when a user is accessing an Internet 

20 website or online service— 

21 (A) operated by the publisher of the soft22 ware; or 

23 (B) the operator of which has provided ex24 press consent to the display of such advertise25 ments to users of the website or service; or 


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1 (2) only in a manner or at a time such that a 

2 reasonable user would understand which software 

3 caused the delivery of the advertisements. 

4 SEC. 5. OTHER PRACTICES THAT THWART USER CONTROL 

5 OF COMPUTER. 

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

7 user of a protected computer to engage in an unfair or 

8 deceptive act or practice that involves— 

9 (1) utilizing the computer to send unsolicited 

10 information or material from the user’s computer to 

11 other computers; 

12 (2) diverting an authorized user’s Internet 

13 browser away from the Internet website the user in14 tended to view to 1 or more other websites, unless 

15 such diversion has been authorized by the website 

16 the user intended to view; 

17 (3) displaying an advertisement, series of adver18 tisements, or other content on the computer through 

19 windows in an Internet browser, in such a manner 

20 that the user of the computer cannot end the display 

21 of such advertisements or content without turning 

22 off the computer or terminating all sessions of the 

23 Internet browser (except that this paragraph shall 

24 not apply to the display of content related to the 

25 functionality or identity of the Internet browser); 


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1 (4) modifying settings relating to the use of the 

2 computer or to the computer’s access to or use of 

3 the Internet, including— 

4 (A) altering the default Web page that ini5 tially appears when a user of the computer 

6 launches an Internet browser; 

7 (B) altering the default provider or Web 

8 proxy used to access or search the Internet; 

9 (C) altering bookmarks used to store fa10 vorite Internet website addresses; or 

11 (D) altering settings relating to security 

12 measures that protect the computer and the in13 formation stored on the computer against unau14 thorized access or use; or 

15 (5) removing, disabling, or rendering inoper16 ative a security or privacy protection technology in17 stalled on the computer. 

18 SEC. 6. LIMITATIONS ON LIABILITY. 

19 (a) PASSIVE TRANSMISSION, HOSTING, OR LINK20 ING.—A person shall not be deemed to have violated any 

21 provision of this Act solely because the person provided— 

22 (1) the Internet connection, telephone connec23 tion, or other transmission or routing function 

24 through which software was delivered to a protected 

25 computer for installation; 


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1 (2) the storage or hosting of software or of an 

2 Internet website through which software was made 

3 available for installation to a protected computer; or 

4 (3) an information location tool, such as a di5 rectory, index, reference, pointer, or hypertext link, 

6 through which a user of a protected computer lo7 cated software available for installation. 

8 (b) NETWORK SECURITY.—It is not a violation of 

9 section 2, 3, or 5 for a provider of a network or online 

10 service used by an authorized user of a protected com11 puter, or to which any authorized user of a protected com12 puter subscribes, to monitor, interact with, or install soft13 ware for the purpose of— 

14 (1) protecting the security of the network, serv15 ice, or computer; 

16 (2) facilitating diagnostics, technical support, 

17 maintenance, network management, or repair; or 

18 (3) preventing or detecting unauthorized, fraud19 ulent, or otherwise unlawful uses of the network or 

20 service. 

21 (c) MANUFACTURER’S LIABILITY FOR THIRD-PARTY

22 SOFTWARE.—A manufacturer or retailer of a protected 

23 computer shall not be liable under any provision of this 

24 Act for causing the installation on the computer, prior to 

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1 party branded software, unless the manufacturer or re2 tailer— 

3 (1) uses a surreptitious information collection 

4 feature included in the software to collect informa5 tion about a user of the computer or the use of a 

6 protected computer by that user; or 

7 (2) knows that the software will cause adver8 tisements for the manufacturer or retailer to be dis9 played to a user of the computer. 

10 (d) INVESTIGATIONAL EXCEPTION.—Nothing in this 

11 Act prohibits any lawfully authorized investigative, protec12 tive, or intelligence activity of a law enforcement agency 

13 of the United States, a State, or a political subdivision 

14 of a State, or of an intelligence agency of the United 

15 States. 

16 (e) SERVICES PROVIDED OVER MVPD SYSTEMS.— 

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

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

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

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

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

22 with the provision of multichannel video programming or 

23 other services offered over a multichannel video program24 ming system or the collection or disclosure of subscriber 

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1 tion or disclosure of such information is subject to section 

2 338(i) or section 631 of the Communications Act of 1934 

3 (47 U.S.C. 338(i) or 551). 

4 SEC. 7. FTC RULEMAKING AUTHORITY. 

5 (a) IN GENERAL.—Subject to the limitations of sub6 section (b), the Commission may issue such rules in ac7 cordance with section 553 of title 5, United States Code, 

8 as may be necessary to implement or clarify the provisions 

9 of this Act. 

10 (b) SAFE HARBORS.— 

11 (1) IN GENERAL.—The Commission may issue 

12 regulations establishing specific wordings or formats 

13 for— 

14 (A) notification that is sufficient under 

15 section 3(c)(2) to prevent a software feature 

16 from being a surreptitious information collec17 tion feature (as defined in section 3(c)); or 

18 (B) labels or other means of identification 

19 that are sufficient to avoid violation of section 

20 4(a). 

21 (2) FUNCTION OF COMMISSION’S SUGGESTED

22 WORDINGS OR FORMATS.— 

23 (A) USAGE IS VOLUNTARY.—The Commis24 sion may not require the use of any specific 


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1 wording or format prescribed under paragraph 

2 (1) to meet the requirements of section 3 or 4. 

3 (B) OTHER MEANS OF COMPLIANCE.—The 

4 use of a specific wording or format prescribed 

5 under paragraph (1) shall not be the exclusive 

6 means of providing notification, labels, or other 

7 identification that meet the requirements of sec8 tions 3 and 4. 

9 (c) LIMITATIONS ON LIABILITY.—In addition to the 

10 limitations on liability specified in section 6, the Commis11 sion may by regulation establish additional limitations or 

12 exceptions upon a finding that such limitations or excep13 tions are reasonably necessary to promote the public inter14 est and are consistent with the purposes of this Act. No 

15 such additional limitation of liability may be made contin16 gent upon the adoption of any specific wording or format 

17 specified in regulations under subsection (b)(1). 

18 SEC. 8. ADMINISTRATION AND ENFORCEMENT. 

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

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

21 a violation of this Act or of any regulation promulgated 

22 by the Commission under this Act were an unfair or de23 ceptive act or practice proscribed under section 

24 18(a)(1)(B) of the Federal Trade Commission Act (15 

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


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1 (b) ENFORCEMENT BY CERTAIN OTHER AGEN2 CIES.—Compliance with this Act shall be enforced 

3 under— 

4 (1) section 8 of the Federal Deposit Insurance 

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

6 (A) national banks, and Federal branches 

7 and Federal agencies of foreign banks, by the 

8 Office of the Comptroller of the Currency; 

9 (B) member banks of the Federal Reserve 

10 System (other than national banks), branches 

11 and agencies of foreign banks (other than Fed12 eral branches, Federal agencies, and insured 

13 State branches of foreign banks), commercial 

14 lending companies owned or controlled by for15 eign banks, and organizations operating under 

16 section 25 or 25A of the Federal Reserve Act 

17 (12 U.S.C. 601 and 611), by the Board; and 

18 (C) banks insured by the Federal Deposit 

19 Insurance Corporation (other than members of 

20 the Federal Reserve System) and insured State 

21 branches of foreign banks, by the Board of Di22 rectors of the Federal Deposit Insurance Cor23 poration; 

24 (2) section 8 of the Federal Deposit Insurance 

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


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1 of Thrift Supervision, in the case of a savings associa2 tion the deposits of which are insured by the Federal 

3 Deposit Insurance Corporation; 

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

5 1751 et seq.) by the National Credit Union Adminis6 tration Board with respect to any Federal credit 

7 union; 

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

9 States Code, by the Secretary of Transportation 

10 with respect to any air carrier or foreign air carrier 

11 subject to that part; 

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

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

14 406 of that Act (7 U.S.C. 226, 227)), by the Sec15 retary of Agriculture with respect to any activities 

16 subject to that Act; and 

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

18 2001 et seq.) by the Farm Credit Administration 

19 with respect to any Federal land bank, Federal land 

20 bank association, Federal intermediate credit bank, 

21 or production credit association. 

22 (c) EXERCISE OF CERTAIN POWERS.—For the pur23 pose of the exercise by any agency referred to in sub24 section (b) of its powers under any Act referred to in that 

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1 tion of a requirement imposed under that Act. In addition 

2 to its powers under any provision of law specifically re3 ferred to in subsection (b), each of the agencies referred 

4 to in that subsection may exercise, for the purpose of en5 forcing compliance with any requirement imposed under 

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

7 (d) ACTIONS BY THE COMMISSION.—The Commis8 sion shall prevent any person from violating this Act in 

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

10 jurisdiction, powers, and duties as though all applicable 

11 terms and provisions of the Federal Trade Commission 

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

13 made a part of this Act. Any entity that violates any provi14 sion of that section is subject to the penalties and entitled 

15 to the privileges and immunities provided in the Federal 

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

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

18 as though all applicable terms and provisions of the Fed19 eral Trade Commission Act were incorporated into and 

20 made a part of that section. 

21 SEC. 9. ACTIONS BY STATES. 

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 this Act 

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

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

5 a district court of the United States of appropriate 

6 jurisdiction— 

7 (A) to enjoin that practice; 

8 (B) to enforce compliance with the rule; 

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

10 compensation on behalf of residents of the 

11 State; or 

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

13 may consider to be appropriate. 

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 Commis18 sion— 

19 (i) written notice of that action; and 

20 (ii) a copy of the complaint for that 

21 action. 

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 determines that it is not feasible to 

3 provide the notice described in that sub4 paragraph before the filing of the action. 

5 (ii) NOTIFICATION.—In an action de6 scribed in clause (i), the attorney general 

7 of a State shall provide notice and a copy 

8 of the complaint to the Commission at the 

9 same time as the attorney general files the 

10 action. 

11 (b) INTERVENTION.— 

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

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

14 right to intervene in the action that is the subject 

15 of the notice. 

16 (2) EFFECT OF INTERVENTION.—If the Com17 mission intervenes in an action under subsection (a), 

18 it shall have the right— 

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

20 that arises in that action; and 

21 (B) to file a petition for appeal. 

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

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

24 shall be construed to prevent an attorney general of a 


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1 State from exercising the powers conferred on the attorney 

2 general by the laws of that State to— 

3 (1) conduct investigations; 

4 (2) administer oaths or affirmations; or 

5 (3) compel the attendance of witnesses or the 

6 production of documentary and other evidence. 

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

8 which an action is instituted by or on behalf of the Com9 mission for violation of this Act, no State may, during the 

10 pendency of that action, institute an action under sub11 section (a) against any defendant named in the complaint 

12 in that action for violation of that section. 

13 (e) VENUE; SERVICE OF PROCESS.— 

14 (1) VENUE.—Any action brought under sub15 section (a) may be brought in the district court of 

16 the United States that meets applicable require17 ments relating to venue under section 1391 of title 

18 28, United States Code. 

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

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

21 in any district in which the defendant— 

22 (A) is an inhabitant; or 

23 (B) may be found. 


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1 SEC. 10. EFFECT ON OTHER LAWS. 

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

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

4 authority to bring enforcement actions or take any other 

5 measures under the Federal Trade Commission Act or any 

6 other provision of law. 

7 (b) STATE LAW.— 

8 (1) STATE LAW CONCERNING INFORMATION

9 COLLECTION SOFTWARE OR ADWARE.—This Act su10 persedes any statute, regulation, or rule of a State 

11 or political subdivision of a State that expressly lim12 its or restricts the installation or use of software on 

13 a protected computer to— 

14 (A) collect information about the user of 

15 the computer or the user’s Internet browsing 

16 behavior or other use of the computer; or 

17 (B) cause advertisements to be delivered to 

18 the user of the computer, 

19 except to the extent that any such statute, regula20 tion, or rule prohibits deception in connection with 

21 the installation or use of such software. 

22 (2) STATE LAW CONCERNING NOTICE OF SOFT23 WARE INSTALLATION.—This Act supersedes any 

24 statute, regulation, or rule of a State or political 

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1 ods for providing notification before the installation 

2 of software on a computer. 

3 (3) STATE LAW NOT SPECIFIC TO SOFTWARE.— 

4 This Act shall not be construed to preempt the ap5 plicability of State criminal, trespass, contract, tort, 

6 or anti-fraud law. 

7 SEC. 11. LIABILITY PROTECTIONS FOR ANTI-SPYWARE 

8 SOFTWARE OR SERVICES. 

9 No provider of computer software or of an interactive 

10 computer service may be held liable under this Act or any 

11 other provision of law for identifying, naming, removing, 

12 disabling, or otherwise affecting the operation or potential 

13 operation on a computer of computer software published 

14 by a third party, if— 

15 (1) the provider’s software or interactive com16 puter service is intended to identify, prevent the in17 stallation or execution of, remove, or disable com18 puter software that is or was installed in violation of 

19 section 2, 3, or 4 of this Act or used to violate sec20 tion 5 of this Act; 

21 (2) an authorized user of the computer has con22 sented to the use of the provider’s computer soft23 ware or interactive computer service on the com24 puter; 


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1 (3) the provider believes in good faith that the 

2 installation or operation of the third-party computer 

3 software involved or involves a violation of section 2, 

4 3, 4, or 5 of this Act; and 

5 (4) the provider either notifies and obtains the 

6 consent of an authorized user of the computer before 

7 taking any action to remove, disable, or otherwise 

8 affect the operation or potential operation of the 

9 third-party software on the computer, or has ob10 tained prior authorization from an authorized user 

11 to take such action without providing such notice 

12 and consent. 

13 SEC. 12. PENALTIES FOR CERTAIN UNAUTHORIZED ACTIVI14 TIES RELATING TO COMPUTERS. 

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

16 States Code, is amended by inserting after section 1030 

17 the following: 

18 ‘‘§ 1030A. Illicit indirect use of protected computers 

19 ‘‘(a) Whoever intentionally accesses a protected com20 puter without authorization, or exceeds authorized access 

21 to a protected computer, by causing a computer program 

22 or code to be copied onto the protected computer, and in23 tentionally uses that program or code in furtherance of 

24 another Federal criminal offense shall be fined under this 

25 title or imprisoned 5 years, or both. 


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1 ‘‘(b) Whoever intentionally accesses a protected com2 puter without authorization, or exceeds authorized access 

3 to a protected computer, by causing a computer program 

4 or code to be copied onto the protected computer, and by 

5 means of that program or code intentionally impairs the 

6 security protection of the protected computer shall be 

7 fined under this title or imprisoned not more than 2 years, 

8 or both. 

9 ‘‘(c) A person shall not violate this section who solely 

10 provides— 

11 ‘‘(1) an Internet connection, telephone connec12 tion, or other transmission or routing function 

13 through which software is delivered to a protected 

14 computer for installation; 

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

16 Internet website, through which software is made 

17 available for installation to a protected computer; or 

18 ‘‘(3) an information location tool, such as a di19 rectory, index, reference, pointer, or hypertext link, 

20 through which a user of a protected computer lo21 cates software available for installation. 

22 ‘‘(d) A provider of a network or online service that 

23 an authorized user of a protected computer uses or sub24 scribes to shall not violate this section by any monitoring 


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1 of, interaction with, or installation of software for the pur2 pose of— 

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

4 service, or computer; 

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

6 maintenance, network management, or repair; or 

7 ‘‘(3) preventing or detecting unauthorized, 

8 fraudulent, or otherwise unlawful uses of the net9 work or service. 

10 ‘‘(e) No person may bring a civil action under the 

11 law of any State if such action is premised in whole or 

12 in part upon the defendant’s violating this section. For 

13 the purposes of this subsection, the term ‘State’ includes 

14 the District of Columbia, Puerto Rico, and any other terri15 tory or possession of the United States.’’. 

16 (b) CONFORMING AMENDMENT.—The table of sec17 tions at the beginning of chapter 47 of title 18, United 

18 States Code, is amended by inserting after the item relat19 ing to section 1030 the following new item: 

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

20 SEC. 13. DEFINITIONS. 

21 In this Act: 

22 (1) AUTHORIZED USER.—The term ‘‘authorized 

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

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


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1 or accessing a computer with the actual or apparent 

2 authorization of the owner or lessee. 

3 (2) CAUSE THE INSTALLATION.—The term 

4 ‘‘cause the installation’’ when used with respect to 

5 particular software, means to knowingly provide the 

6 technical means by which the software is installed, 

7 or to knowingly pay or provide other consideration 

8 to, or to knowingly induce or authorize, another per9 son to do so. 

10 (3) COMMISSION.—The term ‘‘Commission’’ 

11 means the Federal Trade Commission. 

12 (4) COOKIE.—The term ‘‘cookie’’ means a text 

13 file— 

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

15 behalf of, an Internet service provider, inter16 active computer service, or Internet website; 

17 and 

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

19 information that can be read or recognized 

20 when the user of the computer subsequently ac21 cesses particular websites or online locations or 

22 services. 

23 (5) FIRST RETAIL SALE AND DELIVERY.—The 

24 term ‘‘first retail sale and delivery’’ means the first 

25 sale, for a purpose other than resale, of a protected 


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1 computer and the delivery of that computer to the 

2 purchaser or a recipient designated by the purchaser 

3 at the time of such first sale. For purposes of this 

4 paragraph, the lease of a computer shall be consid5 ered a sale of the computer for a purpose other than 

6 resale. 

7 (6) INSTALL.— 

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

9 means— 

10 (i) to write computer software to a 

11 computer’s persistent storage medium, 

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

13 a way that the computer software is re14 tained on the computer after the computer 

15 is turned off and subsequently restarted; 

16 or 

17 (ii) to write computer software to a 

18 computer’s temporary memory, such as 

19 random access memory, in such a way that 

20 the software is retained and continues to 

21 operate after the user of the computer 

22 turns off or exits the Internet service, 

23 interactive computer service, or Internet 

24 website from which the computer software 

25 was obtained. 


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1 (B) EXCEPTION FOR TEMPORARY

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

3 the writing of software to an area of the per4 sistent storage medium that is expressly re5 served for the temporary retention of recently 

6 accessed or input data or information if the 

7 software retained in that area remains inoper8 ative unless a user of the computer chooses to 

9 access that temporary retention area. 

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

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

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

13 (8) PROTECTED COMPUTER.—The term ‘‘pro14 tected computer’’ has the meaning given that term 

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

16 Code. 

17 (9) SOFTWARE.—The term ‘‘software’’ means 

18 any program designed to cause a computer to per19 form a desired function or functions. Such term does 

20 not include any cookie. 

21 (10) UNFAIR OR DECEPTIVE ACT OR PRAC22 TICE.—The term ‘‘unfair or deceptive act or prac23 tice’’ has the same meaning as when used in section 

24 5 of the Federal Trade Commission Act (15 U.S.C. 

25 45). 


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1 (11) UPGRADE.—The term ‘‘upgrade’’, when 

2 used with respect to a previously installed software 

3 program, means additional software that is issued 

4 by, or with the authorization of, the publisher or any 

5 successor to the publisher of the software program 

6 to improve, correct, repair, enhance, supplement, or 

7 otherwise modify the software program. 

8 SEC. 14. EFFECTIVE DATE. 

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

10 enactment of this Act. 

11 SECTION 1. TABLE OF CONTENTS. 

12 The table of contents for this Act is as follows: 

Sec. 1. Table of contents. 

TITLE I—SPYWARE 

Sec. 101. Short title. 

Sec. 102. Federal Trade Commission authority to combat deceptive acts or practices relating to spyware. 

Sec. 103. Prohibited behaviors. 

Sec. 104. Installing personal information collection features on a user’s computer. 

Sec. 105. Adware that conceals its operation. 

Sec. 106. Limitations on liability. 

Sec. 107. FTC administration and enforcement. 

Sec. 108. Enforcement by other agencies. 

Sec. 109. State enforcement. 

Sec. 110. Other enforcement. 

Sec. 111. Effect on other laws. 

Sec. 112. Definitions. 

Sec. 113. Criminal penalties for certain unauthorized activities relating to computers. 

Sec. 114. Effective date. 

TITLE II—INCREASE IN CERTAIN PENALTIES 

Sec. 201. Increase in penalties for unfair or deceptive acts or practices exploiting 

reaction to certain emergencies and major disasters. 


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1 TITLE I—SPYWARE 

2 SEC. 101. SHORT TITLE. 

3 This title may be cited as the ‘‘Software Principles 

4 Yielding Better Levels of Consumer Knowledge Act’’ or the 

5 ‘‘SPY BLOCK Act’’. 

6 SEC. 102. FEDERAL TRADE COMMISSION AUTHORITY TO 

7 COMBAT DECEPTIVE ACTS OR PRACTICES RE8 LATING TO SPYWARE. 

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

10 Federal Trade Commission Act (15 U.S.C. 45) to install 

11 through unfair or deceptive acts or practices software on 

12 protected computers. 

13 (b) RULE OF CONSTRUCTION.—This title shall not be 

14 construed to limit in any way what is an unfair or decep15 tive act or practice under the Federal Trade Commission 

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

17 SEC. 103. PROHIBITED BEHAVIORS. 

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

19 user of a protected computer to cause the installation on 

20 that computer of software that— 

21 (1) takes control of the protected computer by— 

22 (A) ZOMBIES.—transmitting or relaying 

23 commercial electronic mail or a computer virus 

24 from a protected computer if the transmission or 

25 relaying is initiated by a person other than an 


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1 authorized user and without the authorization of 

2 an authorized user; 

3 (B) MODEM HIJACKING.—accessing or using 

4 the modem or Internet service of an authorized 

5 user of a protected computer for the purpose of— 

6 (i) causing damage to the protected 

7 computer; or 

8 (ii) causing the authorized user to 

9 incur financial charges for a service that is 

10 not authorized by that authorized user; 

11 (C) DENIAL OF SERVICE ATTACKS.—using a 

12 protected computer as part of an activity per13 formed by a group of computers for the purpose 

14 of causing damage, including launching a denial 

15 of service attack; or 

16 (D) ENDLESS LOOP POP-UP ADVERTISE17 MENTS.—opening multiple, sequential, stand18 alone advertisements in an authorized user’s pro19 tected computer without the authorization of that 

20 user and with knowledge that a reasonable com21 puter user cannot close the advertisements with22 out turning off the computer or forcing an appli23 cation to close using means other than the ordi24 nary means for closing the application, except 


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1 that this subparagraph does not apply to com2 munications— 

3 (i) originated by the computer’s oper4 ating system; 

5 (ii) originated by software that the 

6 user knowingly chooses to activate; 

7 (iii) originated by a service provider 

8 that the user chooses to use; or 

9 (iv) presented for any of the purposes 

10 described in section 106; 

11 (2) modifies— 

12 (A) ENABLING IDENTITY THEFT.—an au13 thorized user’s security or other settings related 

14 to access to, or use of, the Internet on a protected 

15 computer that protect information about the au16 thorized user for the purpose of stealing the au17 thorized user’s sensitive personal information; or 

18 (B) DISABLING SECURITY.—the security set19 tings of a protected computer for the purpose of 

20 causing damage to that computer or another 

21 computer; or 

22 (C) BROWSER SETTINGS.—through unfair 

23 or deceptive means— 

24 (i) the page that appears when an au25 thorized user launches an Internet browser 


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1 or similar software program used to access 

2 and navigate the Internet; 

3 (ii) the default provider or Web proxy 

4 the authorized user uses to access or search 

5 the Internet; or 

6 (iii) the authorized user’s list of book7 marks used to access Web pages; or 

8 (3) prevents, without authorization from the au9 thorized user, that user’s reasonable efforts to block the 

10 installation of, to disable, or to uninstall software by 

11 unfair or deceptive means, including— 

12 (A) FALSIFYING OPTION TO DECLINE IN13 STALLS.—presenting the authorized user with an 

14 option to decline installation of software with 

15 knowledge that, when the option is selected by the 

16 authorized user, the installation nevertheless pro17 ceeds; or 

18 (B) EVADING UNINSTALLS BY UNFAIR OR

19 DECEPTIVE MEANS.— 

20 (i) falsely representing that the soft21 ware has been disabled; 

22 (ii) requiring in an unfair or deceptive 

23 manner the user to access the Internet to re24 move the software with knowledge or reckless 

25 disregard of the fact that the software freVerDate Aug 31 2005 23:11 Jun 12, 2006 Jkt 049200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6203 E:\BILLS\S687.RS S687

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1 quently operates in a manner that prevents 

2 the user from accessing the Internet; 

3 (iii) changing the name, location or 

4 other designation information of the soft5 ware for the purpose of preventing an au6 thorized user from locating the software to 

7 remove it; 

8 (iv) using randomized or intentionally 

9 deceptive filenames, directory folders, for10 mats, or registry entries for the purpose of 

11 avoiding detection and removal of the soft12 ware by an authorized user; 

13 (v) causing the installation of software 

14 in a particular computer directory or com15 puter memory for the purpose of evading 

16 authorized users’ attempts to remove the 

17 software from the computer; or 

18 (vi) requiring, without the authority of 

19 the owner of the computer, that an author20 ized user obtain a special code or download 

21 software from a third party to uninstall the 

22 software. 


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1 SEC. 104. INSTALLING PERSONAL INFORMATION COLLEC2 TION FEATURES ON A USER’S COMPUTER. 

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

4 not an authorized user of a protected computer to cause the 

5 installation on that computer of software that collects sen6 sitive personal information from an authorized user, unless 

7 that person provides a clear and conspicuous disclosure of 

8 such collection and obtains the authorized user’s consent 

9 prior to any such collection of information in any case in 

10 which the software extracts from the hard drive or other 

11 storage medium of the protected computer the authorized 

12 user’s— 

13 (1) Social Security number; 

14 (2) tax identification number; 

15 (3) driver’s license number; 

16 (4) passport number; 

17 (5) any other government-issued identification 

18 number; 

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

20 numbers; 

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

22 (8) other sensitive personal information. 

23 (b) OTHER PERSONALLY IDENTIFYING INFORMA24 TION.—It is unlawful for a person who is not an authorized 

25 user of a protected computer to cause the installation on 

26 that computer of software that engages in any of the folVerDate Aug 31 2005 23:11 Jun 12, 2006 Jkt 049200 PO 00000 Frm 00035 Fmt 6652 Sfmt 6203 E:\BILLS\S687.RS S687

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1 lowing practices without a prior disclosure that is clearly 

2 and conspicuously available to, or with the knowledge of, 

3 the authorized user, and for a purpose unrelated to any of 

4 the purposes of the software or service described to an au5 thorized user: 

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

7 records all or substantially all keystrokes made by an 

8 owner or operator of a computer and transfers that 

9 information from the computer to another person. 

10 (2) Collection in a manner that correlates per11 sonally identifying information with a history of all 

12 or substantially all of the Web sites visited by an 

13 owner or operator, other than Web sites operated by 

14 the person providing such software, if the computer 

15 software was installed in a manner designed to con16 ceal from all authorized users of the computer the fact 

17 that the software is being installed and would perform 

18 such a function. 

19 (3) Extracting from the hard drive or other stor20 age medium of the computer— 

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

22 software, or other information knowingly saved 

23 or installed by the authorized user of a protected 

24 computer, exclusive of data that provide a purely 

25 technical function; or 


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1 (B) the substantive contents of communica2 tions sent by a user of a protected computer from 

3 that computer to any other computer. 

4 (c) EXCEPTION.—This section shall not be interpreted 

5 to restrict a person from causing the installation of software 

6 that collects information for the provider of an online serv7 ice or website knowingly used or subscribed to by an author8 ized user if the information collected is used only to affect 

9 the user’s experience while using the online service or 

10 website. 

11 (d) UNINSTALL FUNCTIONALITY.— 

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

13 who is not an authorized user of a protected computer 

14 to cause the installation of software that performs any 

15 function described in subsection (a) or (b) if the soft16 ware cannot subsequently be uninstalled or disabled 

17 by an authorized user through a program removal 

18 function that is usual and customary with the com19 puter’s operating system or otherwise as clearly and 

20 conspicuously disclosed to the user. 

21 (2) CONSTRUCTION.— 

22 (A) AUTHORITY TO UNINSTALL.—Software 

23 that enables an authorized user of a protected 

24 computer, such as a parent, employer, or system 

25 administrator, to choose to prevent another user 


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1 of the same computer from uninstalling or dis2 abling the software shall not be considered to 

3 prevent reasonable efforts to uninstall or disable 

4 the software within the meaning of paragraph 

5 (1) if at least 1 authorized user retains the abil6 ity to uninstall or disable the software. 

7 (B) RULE OF CONSTRUCTION.—This sub8 section shall not be construed to require indi9 vidual features or functions of a software pro10 gram, upgrades to a previously installed soft11 ware program, or software programs that were 

12 installed on a bundled basis with other software 

13 or with hardware to be capable of being 

14 uninstalled or disabled separately from such soft15 ware or hardware. 

16 SEC. 105. ADWARE THAT CONCEALS ITS OPERATION. 

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

18 not an authorized user of a protected computer to cause the 

19 installation on that computer of software that causes adver20 tising windows to appear on the protected computer regard21 less of whether any other non-advertising-related 

22 functionality of the software or of other software installed 

23 as part of bundle with such software is— 

24 (1) activated by the authorized user; or 


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1 (2) conspicuously active on the protected com2 puter unless the software complies with subsection (b). 

3 (b) LABEL REQUIRED FOR CERTAIN ADVERTISE4 MENTS.—Subsection (a) does not apply if— 

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

6 the software causes an advertisement to appear, a 

7 clear and conspicuous label or other reasonable means 

8 of identifying to the user of the computer the identity 

9 or name of the software that caused the advertisement 

10 to appear; 

11 (2) the software was installed as part of a bundle 

12 of software, the name of a program in such bundle 

13 that the authorized user is likely to identify as the 

14 main component of the software bundle; and 

15 (3) a clear and conspicuous hypertext link to in16 structions concerning how the user may uninstall the 

17 software causing the advertisement to appear through 

18 usual and customary means within the computer’s 

19 operating system. 

20 (c) EXCEPTION.—Software that causes advertisements 

21 to be displayed without a clear and conspicuous label or 

22 other reasonable means of identification shall not give rise 

23 to liability under subsection (a) if those advertisements are 

24 displayed to a user of the computer only when a user is 

25 accessing or using an Internet website or online service— 


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1 (1) owned or operated by the author or publisher 

2 of the software; or 

3 (2) the owner or operator of which has author4 ized the author or publisher of the software to display 

5 such advertisements to users of that website or service. 

6 SEC. 106. LIMITATIONS ON LIABILITY. 

7 (a) IN GENERAL.—The restrictions imposed by sec8 tions 103, 104, and 105 of this title do not apply to any 

9 monitoring of, or interaction with, a subscriber’s Internet 

10 or other network connection or service, or a protected com11 puter, by or at the direction of a telecommunications car12 rier, cable operator, computer hardware or software pro13 vider, financial institution or provider of information serv14 ices or interactive computer service for— 

15 (1) network or computer security purposes; 

16 (2) diagnostics; 

17 (3) technical support; 

18 (4) repair; 

19 (5) network management; 

20 (6) authorized updates of software or system 

21 firmware; 

22 (7) authorized remote system management; 

23 (8) authorized provision of protection for users of 

24 the computer from objectionable content; 


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1 (9) authorized scanning for computer software 

2 used in violation of sections 103, 104, or 105 for re3 moval by an authorized user; or 

4 (10) detection or prevention of the unauthorized 

5 use of software fraudulent or other illegal activities. 

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

7 SOFTWARE.—A manufacturer or retailer of a computer 

8 shall not be liable under any provision of this title for caus9 ing the installation on the computer, prior to the first retail 

10 sale and delivery of the computer, of third-party branded 

11 software, unless the manufacturer or retailer— 

12 (1) uses the software to collect information about 

13 a user of the computer or the use of a protected com14 puter by that user; or 

15 (2) knows that the software will cause advertise16 ments for the manufacturer or retailer to be displayed 

17 to a user of the computer, or derives a direct financial 

18 benefit from other advertisements displayed on the 

19 computer. 

20 (c) EXCEPTION FOR AUTHORIZED INVESTIGATIVE

21 AGENCIES.—Nothing in this title prohibits any lawfully 

22 authorized investigative, protective, or intelligence activity 

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

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

25 agency of the United States. 


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1 (d) SERVICES PROVIDED OVER MVPD SYSTEMS.—It 

2 is not a violation of this title for a multichannel video pro3 gramming distributor (as defined in section 602(13) of the 

4 Communications Act of 1934 (47 U.S.C. 522(13))) to utilize 

5 a navigation device, or interact with such a device, or to 

6 install or use software on such a device, in connection with 

7 the provision of multichannel video programming or other 

8 services offered over a multichannel video programming sys9 tem or the collection or disclosure of subscriber information, 

10 if the provision of such service or the collection or disclosure 

11 of such information is subject to section 338(i) or section 

12 631 of the Communications Act of 1934 (47 U.S.C. 338(i); 

13 551). 

14 SEC. 107. FTC ADMINISTRATION AND ENFORCEMENT. 

15 (a) IN GENERAL.—Except as provided in section 108, 

16 109, and 110, this title shall be enforced by the Commission 

17 as if a violation of this title or of any regulation promul18 gated by the Commission under this title were an unfair 

19 or deceptive act or practice proscribed under section 

20 18(a)(1)(B) of the Federal Trade Commission Act (15 

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

22 (b) PENALTIES.— 

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

24 of this title or of any regulation promulgated by the 

25 Commission under this title may be increased by the 


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1 Commission to threefold the amount of penalty other2 wise applicable under section 5 of the Federal Trade 

3 Commission Act (15 U.S.C. 45). 

4 (2) PENALTY FOR PATTERN OR PRACTICE OF

5 VIOLATIONS.— 

6 (A) IN GENERAL.—If the Commission deter7 mines that a person has engaged in a pattern or 

8 practice of activity that violates the provisions of 

9 this title, the Commission may, in its discretion, 

10 seek a civil penalty for such pattern or practice 

11 of violations in an amount, as determined by the 

12 Commission, of not more than $3,000,000 for 

13 each such violation of this title. 

14 (B) TREATMENT OF SINGLE ACTION OR

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

16 any single action or conduct that violates this 

17 title with respect to multiple protected computers 

18 shall be treated as a single violation. 

19 (c) SEIZURE AND FORFEITURE OF TAINTED ASSETS

20 OF VIOLATOR.—In an enforcement action brought for a vio21 lation of this title under section 19(b) of the Federal Trade 

22 Commission Act (15 U.S.C. 57b(b)), the Commission may 

23 petition the court to order the seizure and forfeiture of any 

24 assets of the violator attributable to violation of this title. 


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1 (d) ILL-GOTTEN GAINS.—The Commission may re2 quire any person who violates this title to disgorge any ill3 gotten gains procured through unfair or deceptive acts or 

4 practices in violation of this title and shall seize any such 

5 gains it has required to be disgorged. 

6 (e) ACTIONS BY THE COMMISSION.— 

7 (1) IN GENERAL.—The Commission shall prevent 

8 any person from violating this title in the same man9 ner, by the same means, and with the same jurisdic10 tion, powers, and duties as though all applicable 

11 terms and provisions of the Federal Trade Commis12 sion Act (15 U.S.C. 41 et seq.) were incorporated into 

13 and made a part of this title. Any entity that violates 

14 any provision of this title is subject to the penalties 

15 and entitled to the privileges and immunities pro16 vided in the Federal Trade Commission Act in the 

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

18 jurisdiction, power, and duties as though all applica19 ble terms and provisions of the Federal Trade Com20 mission Act were incorporated into and made a part 

21 of this title. 

22 (2) OTHER AUTHORITY NOT AFFECTED.—Noth23 ing in this title shall be construed to limit or affect 

24 in any way the Commission’s authority to bring en25 forcement actions or take any other measure under 


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

2 seq.) or any other provision of law. 

3 SEC. 108. ENFORCEMENT BY OTHER AGENCIES. 

4 (a) IN GENERAL.—Compliance with this title shall be 

5 enforced exclusively under— 

6 (1) section 8 of the Federal Deposit Insurance 

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

8 (A) national banks, and Federal branches 

9 and Federal agencies of foreign banks, and any 

10 subsidiaries of such entities (except brokers, deal11 ers, persons providing insurance, investment 

12 companies, and investment advisers), by the Of13 fice of the Comptroller of the Currency; 

14 (B) member banks of the Federal Reserve 

15 System (other than national banks), branches 

16 and agencies of foreign banks (other than Fed17 eral branches, Federal agencies, and insured 

18 State branches of foreign banks), commercial 

19 lending companies owned or controlled by for20 eign banks, organizations operating under sec21 tion 25 or 25A of the Federal Reserve Act (12 

22 U.S.C. 601 and 611), and bank holding compa23 nies and their nonbank subsidiaries or affiliates 

24 (except brokers, dealers, persons providing insur25 ance, investment companies and investment adVerDate Aug 31 2005 23:11 Jun 12, 2006 Jkt 049200 PO 00000 Frm 00045 Fmt 6652 Sfmt 6203 E:\BILLS\S687.RS S687

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1 visers), by the Board of Governors of the Federal 

2 Reserve System; 

3 (C) banks insured by the Federal Deposit 

4 Insurance Corporation (other than members of 

5 the Federal Reserve System), insured State 

6 branches of foreign banks, and any subsidiaries 

7 of such entities (except brokers, dealers, persons 

8 providing insurance, investment companies and 

9 investment advisers), by the Board of Directors 

10 of the Federal Deposit Insurance Corporation; 

11 and 

12 (D) savings associations the deposits of 

13 which are insured by the Federal Deposit Insur14 ance Corporation, and any subsidiaries of such 

15 savings associations (except brokers, dealers, per16 sons providing insurance, investment companies 

17 and investment advisers), by the Director of the 

18 Office of Thrift Supervision; 

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

20 1751 et seq.) by the Board of the National Credit 

21 Union Administration Board with respect to any 

22 Federal credit union and any subsidiaries of such a 

23 credit union; 


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1 (3) the Securities and Exchange Act of 1934 (15 

2 U.S.C. 78a et seq.) by the Securities and Exchange 

3 Commission with respect to— 

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

5 (B) an investment company subject to the 

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

7 80a–1 et seq.); and 

8 (C) an investment advisor subject to the In9 vestment Advisers Act of 1940 (15 U.S.C. 80b– 

10 1 et seq.); 

11 (4) the Communications Act of 1934 (47 U.S.C. 

12 151 et seq.) by the Federal Communications Commis13 sion with respect to any person subject to the provi14 sions of that Act; 

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

16 States Code, by the Secretary of Transportation with 

17 respect to any air carrier or foreign air carrier sub18 ject to that part; and 

19 (6) State insurance law, in the case of any per20 son engaged in providing insurance, by the applicable 

21 State insurance authority of the State in which the 

22 person is domiciled. 

23 (b) EXERCISE OF CERTAIN POWERS.—For the purpose 

24 of the exercise by any agency referred to in subsection (a) 

25 of its powers under any Act referred to in that subsection, 


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1 a violation of this title is deemed to be a violation of a 

2 requirement imposed under that Act. In addition to its 

3 powers under any provision of law specifically referred to 

4 in subsection (a), each of the agencies referred to in that 

5 subsection may exercise, for the purpose of enforcing compli6 ance with any requirement imposed under this title, any 

7 other authority conferred on it by law. 

8 SEC. 109. STATE ENFORCEMENT. 

9 (a) IN GENERAL.— 

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

11 attorney general of a State has reason to believe that 

12 an interest of the residents of that State has been or 

13 is threatened or adversely affected by the engagement 

14 of any person in a practice that is prohibited under 

15 this section, the State, as parens patriae, may bring 

16 a civil action on behalf of the residents of that State 

17 in a district court of the United States of appropriate 

18 jurisdiction, or any other court of competent jurisdic19 tion— 

20 (A) to enjoin that practice; 

21 (B) to enforce compliance with this title; 

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

23 compensation on behalf of residents of the State; 

24 or 


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

2 may consider to be appropriate. 

3 (2) NOTICE.— 

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

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

6 State shall provide to the Commission— 

7 (i) written notice of the action; and 

8 (ii) a copy of the complaint for the ac9 tion. 

10 (B) EXEMPTION.— 

11 (i) IN GENERAL.—Subparagraph (A) 

12 shall not apply with respect to the filing of 

13 an action by an attorney general of a State 

14 under this subsection, if the attorney gen15 eral of a State determines that it is not fea16 sible to provide the notice described in that 

17 subparagraph before the filing of the action. 

18 (ii) NOTIFICATION.—In an action de19 scribed in clause (i), the attorney general of 

20 a State shall provide notice and a copy of 

21 the complaint to the Commission at the 

22 same time as the attorney general files the 

23 action. 

24 (b) INTERVENTION.— 


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

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

3 to intervene in the action that is the subject of the no4 tice. 

5 (2) EFFECT OF INTERVENTION.—If the Commis6 sion intervenes in an action under subsection (a), it 

7 shall have the right— 

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

9 that arises in that action; and 

10 (B) to file a petition for appeal. 

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

12 civil action under subsection (a), nothing in this title shall 

13 be construed to prevent an attorney general of a State from 

14 exercising the powers conferred on the attorney general by 

15 the laws of that State— 

16 (1) to conduct investigations; 

17 (2) to administer oaths or affirmations; or 

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

19 production of documentary and other evidence. 

20 (d) ACTION BY THE COMMISSION MAY PRECLUDE

21 STATE ACTION.—In any case in which an action is insti22 tuted by or on behalf of the Commission for violation of 

23 this title, no State may, during the pendency of that action, 

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1 ant named in the complaint in that action for violation 

2 of that section. 

3 (e) VENUE; SERVICE OF PROCESS.— 

4 (1) VENUE.—Any action brought under sub5 section (a) may be brought in the district court of the 

6 United States that meets applicable requirements re7 lating to venue under section 1391 of title 28, United 

8 States Code. 

9 (2) SERVICE OF PROCESS.—In an action brought 

10 under subsection (a), process may be served in any 

11 district in which the defendant— 

12 (A) is an inhabitant; or 

13 (B) may be found. 

14 SEC. 110. OTHER ENFORCEMENT. 

15 (a) ADDITIONAL ENFORCEMENT OF MODEM HIJACK16 ING VIOLATIONS.—In the case of a violation of section 

17 103(1)(B)(ii) that causes a telecommunications carrier to 

18 incur costs for the origination, transport, or termination 

19 of a call triggered using the modem of a customer of such 

20 telecommunications carrier as a result of such violation, the 

21 telecommunications carrier may bring a civil action 

22 against the violator— 

23 (1) to recover— 

24 (A) the charges such carrier is obligated to 

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1 ice provider as a result of the violation, includ2 ing but not limited to charges for the origina3 tion, transport, or termination of the call; 

4 (B) the costs of handling customer inquiries 

5 or complaints with respect to amounts billed for 

6 such calls; and 

7 (C) other related costs and reasonable attor8 neys fees; and 

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

10 (b) STATE ACTION PREMISED ON A VIOLATION OF

11 THIS TITLE.—No person may bring a civil action under 

12 the law of any State to the extent that such action is pre13 mised in whole or in part upon the defendant’s violation 

14 of any provision of this title. 

15 SEC. 111. EFFECT ON OTHER LAWS. 

16 (a) FEDERAL LAW.—Nothing in this title shall be con17 strued to limit or affect in any way the Commission’s au18 thority to bring enforcement actions or take any other meas19 ures under the Federal Trade Commission Act or any other 

20 provision of law. 

21 (b) PREEMPTION OF STATE OR LOCAL LAW.—This 

22 title supersedes any provision of a statute, regulation, or 

23 rule, and any requirement, prohibition, or remedy under 

24 the law of any State or political subdivision thereof that 

25 relates to, or confers a remedy for— 


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

2 advertisements to a protected computer; 

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

4 information about a user of a protected computer or 

5 the user’s use of that computer; 

6 (3) the installation or use of software to allow a 

7 person other than an authorized user of the computer 

8 to direct or control a protected computer; or 

9 (4) the method or manner of uninstalling or dis10 abling software that performs any of the functions de11 scribed in paragraphs (1) through (3). 

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

13 title shall not be construed to preempt actions or remedies 

14 based upon— 

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

16 or 

17 (2) any provision of generally applicable State 

18 consumer protection law. 

19 SEC. 112. DEFINITIONS. 

20 In this title: 

21 (1) ADVERTISING WINDOW.—The term ‘‘adver22 tising window’’ means a window— 

23 (A) that is displayed separately from other 

24 windows displayed to the authorized user (at the 


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1 time a software program is activated) by any 

2 other active program; and 

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

4 substantial part related to advertising. 

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

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

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

8 or accessing a computer with the authorization of the 

9 owner or lessee. 

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

11 ‘‘bundle’’ means a set of executable software programs 

12 that are installed together. 

13 (4) CAUSE THE INSTALLATION.— 

14 (A) IN GENERAL.—The term ‘‘cause the in15 stallation’’ when used with respect to particular 

16 software, means (with knowledge or conscious 

17 avoidance of actual knowledge that software per18 forms a function described in section 103, 104, 

19 or 105)— 

20 (i) knowingly to provide the technical 

21 means by which the software is installed; or 

22 (ii) knowingly to pay or provide other 

23 consideration to, or knowingly to induce or 

24 authorize, another person to provide the 


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1 technical means by which the software is in2 stalled. 

3 (B) EXCEPTIONS.—The term ‘‘cause the in4 stallation’’ does not include providing— 

5 (i) the Internet connection, telephone 

6 connection, or other transmission or routing 

7 function through which software was deliv8 ered to a protected computer for installa9 tion; 

10 (ii) the storage or hosting of software 

11 or of an Internet website through which the 

12 software was made available by a third 

13 party for installation to the protected com14 puter; or 

15 (iii) an information location tool, such 

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

17 hypertext link, through which a user of a 

18 protected computer located software avail19 able for installation. 

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

21 means the Federal Trade Commission. 

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

23 file— 


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

2 behalf of, an Internet service provider, inter3 active computer service, or Internet website; and 

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

5 information that can be read or recognized when 

6 the user of the computer subsequently accesses 

7 particular websites or online locations or serv8 ices. 

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

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

11 18, United States Code. 

12 (8) INSTALL.— 

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

14 means— 

15 (i) to write computer software to a 

16 computer’s persistent storage medium, such 

17 as the computer’s hard disk, in such a way 

18 that the computer software is retained on 

19 the computer after the computer is turned 

20 off and subsequently restarted; or 

21 (ii) to write computer software to a 

22 computer’s temporary memory, such as ran23 dom access memory, in such a way that the 

24 software is retained and continues to oper25 ate after the user of the computer turns off 


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1 or exits the Internet service, interactive 

2 computer service, or Internet website from 

3 which the computer software was obtained. 

4 (B) EXCEPTION FOR TEMPORARY CACHE.— 

5 The term ‘‘install’’ does not include the writing 

6 of software to an area of the persistent storage 

7 medium that is expressly reserved for the tem8 porary retention of recently accessed or input 

9 data or information, if the software retained in 

10 that area remains inoperative unless a user of 

11 the computer chooses to access that temporary re12 tention area. 

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

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

15 Code. 

16 (10) PERSON.—The term ‘‘person’’ has the mean17 ing given that term in section 3(32) of the Commu18 nications Act of 1934 (47 U.S.C. 153(32)). 

19 (11) PROTECTED COMPUTER.—The term ‘‘pro20 tected computer’’ has the meaning given that term in 

21 section 1030(e)(2)(B) of title 18, United States Code. 

22 (12) PERSONALLY IDENTIFYING INFORMATION.— 

23 The term ‘‘personally identifying information’’ 

24 means, with respect to a protected computer— 


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1 (A) the authorized user’s last name, com2 bined with the user’s first initial or first name; 

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

4 (C) the authorized user’s telephone number; 

5 or 

6 (D) or other information that is sufficient 

7 to identify an authorized user by name. 

8 (13) SENSITIVE PERSONAL INFORMATION.—The 

9 term ‘‘sensitive personal information’’ means an indi10 vidual’s name, address, or telephone number, when 

11 combined with that individual’s— 

12 (A) Social Security number, taxpayer iden13 tification number, or an employer identification 

14 number that is the same as or is derived from 

15 the Social Security number; 

16 (B) financial account number, or credit 

17 card or debit card number, combined with any 

18 required security code, access code, or password 

19 that would permit access to such individual’s ac20 count; or 

21 (C) driver’s license identification number or 

22 State resident identification number. 

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

24 any program designed to cause a computer to perform 

25 a function or functions, but does not include a cookie. 


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1 (15) UNFAIR OR DECEPTIVE ACT OR PRACTICE.— 

2 The term ‘‘unfair or deceptive act or practice’’ has the 

3 same meaning as when used in section 5 of the Fed4 eral Trade Commission Act (15 U.S.C. 45). 

5 SEC. 113. CRIMINAL PENALTIES FOR CERTAIN UNAUTHOR6 IZED ACTIVITIES RELATING TO COMPUTERS. 

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

8 States Code, is amended by inserting after section 1030 the 

9 following: 

10 ‘‘§ 1030A. Illicit indirect use of protected computers 

11 ‘‘(a) FURTHERANCE OF CRIMINAL OFFENSE.—Who12 ever intentionally accesses a protected computer without au13 thorization, or exceeds authorized access to a protected com14 puter, by causing a computer program or code to be copied 

15 onto the protected computer, and intentionally uses that 

16 program or code in furtherance of another Federal criminal 

17 offense shall be fined under this title or imprisoned not more 

18 than 5 years, or both. 

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

20 accesses a protected computer without authorization, or ex21 ceeds authorized access to a protected computer, by causing 

22 a computer program or code to be copied onto the protected 

23 computer, and by means of that program or code inten24 tionally impairs the security protection of the protected 


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1 computer shall be fined under this title or imprisoned not 

2 more than 2 years, or both. 

3 ‘‘(c) INDIVIDUAL EXEMPTION.—A person shall not vio4 late this section who solely provides— 

5 ‘‘(1) an Internet connection, telephone connec6 tion, or other transmission or routing function 

7 through which software is delivered to a protected 

8 computer for installation; 

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

10 Internet website, through which software is made 

11 available for installation to a protected computer; or 

12 ‘‘(3) an information location tool, such as a di13 rectory, index, reference, pointer, or hypertext link, 

14 through which a user of a protected computer locates 

15 software available for installation. 

16 ‘‘(d) NETWORK EXEMPTION.—A provider of a network 

17 or online service that an authorized user of a protected com18 puter uses or subscribes to shall not violate this section by 

19 any monitoring or, interaction with, or installation of soft20 ware for the purpose of— 

21 ‘‘(1) protecting the security of the network, serv22 ice, or computer; 

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

24 maintenance, network management, or repair; or 


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1 ‘‘(3) preventing or detecting unauthorized, fraud2 ulent, or otherwise unlawful uses of the network or 

3 service. 

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

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

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

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

8 title. 

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

10 the several States, the District of Columbia, Puerto 

11 Rico, and any other territory or possession of the 

12 United States.’’. 

13 (b) CONFORMING AMENDMENT.—The table of sections 

14 at the beginning of chapter 47 of title 18, United States 

15 Code, is amended by inserting after the item relating to 

16 section 1030 the following new item: 

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

17 SEC. 114. EFFECTIVE DATE. 

18 This title shall take effect 180 days after the date of 

19 enactment of this Act. 


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1 TITLE II—INCREASE IN CERTAIN 

2 PENALTIES 

3 SEC. 201. INCREASE IN PENALTIES FOR UNFAIR OR DECEP4 TIVE ACTS OR PRACTICES EXPLOITING REAC5 TION TO CERTAIN EMERGENCIES AND MAJOR 

6 DISASTERS. 

7 (a) VIOLATIONS OF PROHIBITION AGAINST UNFAIR OR

8 DECEPTIVE ACTS OR PRACTICES.—Section 5(m)(1) of the 

9 Federal Trade Commission Act (15 U.S.C. 45(m)(1)) is 

10 amended by adding at the end the following: 

11 ‘‘(D) In the case of a violation involving an unfair 

12 or deceptive act or practice in a national emergency period 

13 or disaster period, or relating to an international disaster, 

14 the amount of the civil penalty under this paragraph shall 

15 be double the amount otherwise provided in this paragraph, 

16 if the act or practice exploits popular reaction to the na17 tional emergency or major disaster that is the basis for such 

18 period, or to the international disaster. 

19 ‘‘(E) In this paragraph: 

20 ‘‘(i) The term ‘national emergency period’ means 

21 the period that— 

22 ‘‘(I) begins on the date the President de23 clares a national emergency under the National 

24 Emergencies Act (50 U.S.C. 1601 et seq.); and 


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1 ‘‘(II) ends on the expiration of the 1-year 

2 period beginning on the date of the termination 

3 of the national emergency. 

4 ‘‘(ii) The term ‘disaster period’ means the 1-year 

5 period beginning on the date the President declares 

6 an emergency or major disaster under the Robert T. 

7 Stafford Disaster Relief and Emergency Assistance 

8 Act (42 U.S.C. 5121 et seq.). 

9 ‘‘(iii) The term ‘international disaster’ means 

10 any natural or man-made disaster in response to 

11 which the President furnishes assistance to any for12 eign country, international organization, or private 

13 voluntary organization pursuant to section 491 of the 

14 Foreign Assistance Act (22 U.S.C. 2292(b)).’’. 

15 (b) VIOLATIONS OF OTHER LAWS ENFORCED BY THE

16 FEDERAL TRADE COMMISSION.—Section 13 of the Federal 

17 Trade Commission Act (15 U.S.C. 53) is amended by add18 ing at the end the following: 

19 ‘‘(e) NATIONAL EMERGENCY OR DISASTER PERIOD.— 

20 ‘‘(1) IN GENERAL.—If a person, partnership, or 

21 corporation is found, in an action under subsection 

22 (b), to have committed a violation involving an un23 fair or deceptive act or practice in a national emer24 gency period or a disaster period, or relating to an 

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1 ploits popular reaction to the national emergency or 

2 major disaster that is the basis for such period, or to 

3 the international disaster, the court, after awarding 

4 equitable relief (if any) under any other authority of 

5 the court, shall hold the person, partnership, or cor6 poration liable for a civil penalty of not more than 

7 $22,000 for each such violation. 

8 ‘‘(2) DEFINITIONS.—In this subsection: 

9 ‘‘(A) NATIONAL EMERGENCY PERIOD.—The 

10 term ‘national emergency period’ means the pe11 riod that— 

12 ‘‘(i) begins on the date the President 

13 declares a national emergency under the 

14 National Emergencies Act (50 U.S.C. 1601 

15 et seq.); and 

16 ‘‘(ii) ends on the expiration of the 1- 

17 year period beginning on the date of the ter18 mination of the national emergency. 

19 ‘‘(B) DISASTER PERIOD.—The term ‘dis20 aster period’ means the 1-year period beginning 

21 on the date the President declares an emergency 

22 or major disaster under the Robert T. Stafford 

23 Disaster Relief and Emergency Assistance Act 

24 (42 U.S.C. 5121 et seq.). 


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1 ‘‘(C) INTERNATIONAL DISASTER.—The term 

2 ‘international disaster’ means any natural or 

3 man-made disaster in response to which the 

4 President furnishes assistance to any foreign 

5 country, international organization, or private 

6 voluntary organization pursuant to section 491 

7 of the Foreign Assistance Act (22 U.S.C. 

8 2292(b)).’’. 


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Calendar No. 467 

109TH CONGRESS 

2D SESSION S. 687 

[Report No. 109

–262] 

A BILL 

To regulate the unauthorized installation of comfor other purposes. tures that may pose a threat to user privacy, and computer users of certain computer software fea- puter software, to require clear disclosure to 

JUNE 12, 2006 

Reported with an amendment 


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