II 

109TH CONGRESS 

1ST SESSION S. 687 

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, and Mr. NELSON of Florida) introduced the following bill; which was read twice and referred to 

the Committee on Commerce, Science, and Transportation 

A BILL 

To regulate the unauthorized installation of computer software, to require clear disclosure to computer users of 

certain computer software features that may pose a 

threat to user privacy, and for other purposes. 

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

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

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

5 ‘‘Software Principles Yielding Better Levels of Consumer 

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

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

8 this Act is as follows: 
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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. 

1 SEC. 2. PROHIBITED PRACTICES RELATED TO SOFTWARE 

2 INSTALLATION IN GENERAL. 

3 (a) SURREPTITIOUS INSTALLATION.— 

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

5 who is not an authorized user of a protected com6 puter to cause the installation of software on the 

7 computer in a manner that— 

8 (A) conceals from the user of the computer 

9 the fact that the software is being installed; or 

10 (B) prevents the user of the computer 

11 from having an opportunity to knowingly grant 

12 or withhold consent to the installation. 

13 (2) EXCEPTION.—This subsection does not 

14 apply to— 

15 (A) the installation of software that falls 

16 within the scope of a previous grant of author17 ization by an authorized user; 
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1 (B) the installation of an upgrade to a 

2 software program that has already been in3 stalled on the computer with the authorization 

4 of an authorized user; 

5 (C) the installation of software before the 

6 first retail sale and delivery of the computer; or 

7 (D) the installation of software that ceases 

8 to operate when the user of the computer exits 

9 the software or service through which the user 

10 accesses the Internet, if the software so in11 stalled does not begin to operate again when 

12 the user accesses the Internet via that computer 

13 in the future. 

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

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

16 a protected computer to induce an authorized user of the 

17 computer to consent to the installation of software on the 

18 computer by means of a materially false or misleading rep19 resentation concerning— 

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

21 website or online service at which the software is 

22 made available for download from the Internet; 

23 (2) the identity of the author, publisher, or au24 thorized distributor of the software; 

25 (3) the nature or function of the software; or 
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1 (4) the consequences of not installing the soft2 ware. 

3 (c) PREVENTING REASONABLE EFFORTS TO

4 UNINSTALL.— 

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

6 who is not an authorized user of a protected com7 puter to cause the installation of software on the 

8 computer if the software cannot subsequently be 

9 uninstalled or disabled by an authorized user 

10 through a program removal function that is usual 

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

12 otherwise as clearly and conspicuously disclosed to 

13 the user. 

14 (2) LIMITATIONS.— 

15 (A) AUTHORITY TO UNINSTALL.—Software 

16 that enables an authorized user of a computer, 

17 such as a parent, employer, or system adminis18 trator, to choose to prevent another user of the 

19 same computer from uninstalling or disabling 

20 the software shall not be considered to prevent 

21 reasonable efforts to uninstall or disable the 

22 software within the meaning of this subsection 

23 if at least 1 authorized user retains the ability 

24 to uninstall or disable the software. 
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1 (B) CONSTRUCTION.—This subsection 

2 shall not be construed to require individual fea3 tures or functions of a software program, up4 grades to a previously installed software pro5 gram, or software programs that were installed 

6 on a bundled basis with other software or with 

7 hardware to be capable of being uninstalled or 

8 disabled separately from such software or hard9 ware. 

10 SEC. 3. INSTALLING SURREPTITIOUS INFORMATION COL11 LECTION FEATURES ON A USER’S COMPUTER. 

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

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

14 (1) cause the installation on that computer of 

15 software that includes a surreptitious information 

16 collection feature; or 

17 (2) use software installed in violation of para18 graph (1) to collect information about a user of the 

19 computer or the use of a protected computer by that 

20 user. 

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

22 be interpreted to prohibit a person from causing the instal23 lation of software that collects and transmits only infor24 mation that is reasonably needed to determine whether or 
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1 not the user of a protected computer is licensed or author2 ized to use the software. 

3 (c) SURREPTITIOUS INFORMATION COLLECTION

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

5 term ‘‘surreptitious information collection feature’’ means 

6 a feature of software that— 

7 (1) collects information about a user of a pro8 tected computer or the use of a protected computer 

9 by that user, and transmits such information to any 

10 other person or computer— 

11 (A) on an automatic basis or at the direc12 tion of person other than an authorized user of 

13 the computer, such that no authorized user 

14 knowingly triggers or controls the collection and 

15 transmission; 

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

17 an authorized user at or near the time of the 

18 collection and transmission, such that no au19 thorized user is likely to be aware of it when in20 formation collection and transmission are occur21 ring; and 

22 (C) for purposes other than— 

23 (i) facilitating the proper technical 

24 functioning of a capability, function, or 

25 service that an authorized user of the com-
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1 puter has knowingly used, executed, or en2 abled; or 

3 (ii) enabling the provider of an online 

4 service knowingly used or subscribed to by 

5 an authorized user of the computer to 

6 monitor or record the user’s usage of the 

7 service, or to customize or otherwise affect 

8 the provision of the service to the user 

9 based on such usage; and 

10 (2) begins to collect and transmit such informa11 tion without prior notification that— 

12 (A) clearly and conspicuously discloses to 

13 an authorized user of the computer the type of 

14 information the software will collect and the 

15 types of ways the information may be used and 

16 distributed; and 

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

18 such that an authorized user of the computer 

19 has an opportunity, after reviewing the infor20 mation contained in the notice, to prevent ei21 ther— 

22 (i) the installation of the software; or 

23 (ii) the beginning of the operation of 

24 the information collection and transmission 

25 capability described in paragraph (1). 
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1 SEC. 4. ADWARE THAT CONCEALS ITS OPERATION. 

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

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

4 the installation on that computer of software that causes 

5 advertisements to be displayed to the user without a label 

6 or other reasonable means of identifying to the user of 

7 the computer, each time such an advertisement is dis8 played, which software caused the advertisement’s deliv9 ery. 

10 (b) EXCEPTION.—Software that causes advertise11 ments to be displayed without a label or other reasonable 

12 means of identification shall not give rise to liability under 

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

14 user of the computer— 

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

16 website or online service— 

17 (A) operated by the publisher of the soft18 ware; or 

19 (B) the operator of which has provided ex20 press consent to the display of such advertise21 ments to users of the website or service; or 

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

23 reasonable user would understand which software 

24 caused the delivery of the advertisements. 
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1 SEC. 5. OTHER PRACTICES THAT THWART USER CONTROL 

2 OF COMPUTER. 

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

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

5 deceptive act or practice that involves— 

6 (1) utilizing the computer to send unsolicited 

7 information or material from the user’s computer to 

8 other computers; 

9 (2) diverting an authorized user’s Internet 

10 browser away from the Internet website the user in11 tended to view to 1 or more other websites, unless 

12 such diversion has been authorized by the website 

13 the user intended to view; 

14 (3) displaying an advertisement, series of adver15 tisements, or other content on the computer through 

16 windows in an Internet browser, in such a manner 

17 that the user of the computer cannot end the display 

18 of such advertisements or content without turning 

19 off the computer or terminating all sessions of the 

20 Internet browser (except that this paragraph shall 

21 not apply to the display of content related to the 

22 functionality or identity of the Internet browser); 

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

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

25 the Internet, including— 
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1 (A) altering the default Web page that ini2 tially appears when a user of the computer 

3 launches an Internet browser; 

4 (B) altering the default provider or Web 

5 proxy used to access or search the Internet; 

6 (C) altering bookmarks used to store fa7 vorite Internet website addresses; or 

8 (D) altering settings relating to security 

9 measures that protect the computer and the in10 formation stored on the computer against unau11 thorized access or use; or 

12 (5) removing, disabling, or rendering inoper13 ative a security or privacy protection technology in14 stalled on the computer. 

15 SEC. 6. LIMITATIONS ON LIABILITY. 

16 (a) PASSIVE TRANSMISSION, HOSTING, OR LINK17 ING.—A person shall not be deemed to have violated any 

18 provision of this Act solely because the person provided— 

19 (1) the Internet connection, telephone connec20 tion, or other transmission or routing function 

21 through which software was delivered to a protected 

22 computer for installation; 

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

24 Internet website through which software was made 

25 available for installation to a protected computer; or 
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1 (3) an information location tool, such as a di2 rectory, index, reference, pointer, or hypertext link, 

3 through which a user of a protected computer lo4 cated software available for installation. 

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

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

7 service used by an authorized user of a protected com8 puter, or to which any authorized user of a protected com9 puter subscribes, to monitor, interact with, or install soft10 ware for the purpose of— 

11 (1) protecting the security of the network, serv12 ice, or computer; 

13 (2) facilitating diagnostics, technical support, 

14 maintenance, network management, or repair; or 

15 (3) preventing or detecting unauthorized, fraud16 ulent, or otherwise unlawful uses of the network or 

17 service. 

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

19 SOFTWARE.—A manufacturer or retailer of a protected 

20 computer shall not be liable under any provision of this 

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

22 the first retail sale and delivery of the computer, of third23 party branded software, unless the manufacturer or re24 tailer— 
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1 (1) uses a surreptitious information collection 

2 feature included in the software to collect informa3 tion about a user of the computer or the use of a 

4 protected computer by that user; or 

5 (2) knows that the software will cause adver6 tisements for the manufacturer or retailer to be dis7 played to a user of the computer. 

8 (d) INVESTIGATIONAL EXCEPTION.—Nothing in this 

9 Act prohibits any lawfully authorized investigative, protec10 tive, or intelligence activity of a law enforcement agency 

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

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

13 States. 

14 (e) SERVICES PROVIDED OVER MVPD SYSTEMS.— 

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

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

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

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

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

20 with the provision of multichannel video programming or 

21 other services offered over a multichannel video program22 ming system or the collection or disclosure of subscriber 

23 information, if the provision of such service or the collec24 tion or disclosure of such information is subject to section 
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1 338(i) or section 631 of the Communications Act of 1934 

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

3 SEC. 7. FTC RULEMAKING AUTHORITY. 

4 (a) IN GENERAL.—Subject to the limitations of sub5 section (b), the Commission may issue such rules in ac6 cordance with section 553 of title 5, United States Code, 

7 as may be necessary to implement or clarify the provisions 

8 of this Act. 

9 (b) SAFE HARBORS.— 

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

11 regulations establishing specific wordings or formats 

12 for— 

13 (A) notification that is sufficient under 

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

15 from being a surreptitious information collec16 tion feature (as defined in section 3(c)); or 

17 (B) labels or other means of identification 

18 that are sufficient to avoid violation of section 

19 4(a). 

20 (2) FUNCTION OF COMMISSION’S SUGGESTED

21 WORDINGS OR FORMATS.— 

22 (A) USAGE IS VOLUNTARY.—The Commis23 sion may not require the use of any specific 

24 wording or format prescribed under paragraph 

25 (1) to meet the requirements of section 3 or 4. 
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1 (B) OTHER MEANS OF COMPLIANCE.—The 

2 use of a specific wording or format prescribed 

3 under paragraph (1) shall not be the exclusive 

4 means of providing notification, labels, or other 

5 identification that meet the requirements of sec6 tions 3 and 4. 

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

8 limitations on liability specified in section 6, the Commis9 sion may by regulation establish additional limitations or 

10 exceptions upon a finding that such limitations or excep11 tions are reasonably necessary to promote the public inter12 est and are consistent with the purposes of this Act. No 

13 such additional limitation of liability may be made contin14 gent upon the adoption of any specific wording or format 

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

16 SEC. 8. ADMINISTRATION AND ENFORCEMENT. 

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

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

19 a violation of this Act or of any regulation promulgated 

20 by the Commission under this Act were an unfair or de21 ceptive act or practice proscribed under section 

22 18(a)(1)(B) of the Federal Trade Commission Act (15 

23 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 

25 subsection, a violation of this Act is deemed to be a viola-
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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 

25 subdivision of a State that prescribes specific meth-
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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. 
28 

•S 687 IS 

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). 
29 

•S 687 IS 

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. 

Æ