I 
110TH CONGRESS 
1ST SESSION 
H. R. 964 
To protect users of the Internet from unknowing transmission of their person-
ally identifiable information through spyware programs, and for other 
purposes. 
IN THE HOUSE OF REPRESENTATIVES 
FEBRUARY 8, 2007 
Mr. TOWNS (for himself, Mrs. BONO, Mr. DINGELL, Mr. BARTON of Texas, 
Mr. RUSH, Mr. STEARNS, Mr. MARKEY, Ms. SCHAKOWSKY, Mr. BOU-
CHER, Mr. GORDON of Tennessee, Ms. ESHOO, Mr. STUPAK, Mr. GENE 
GREEN of Texas, Ms. DEGETTE, Mrs. CAPPS, Mr. DOYLE, Ms. SOLIS, 
Mr. GONZALEZ, Mr. INSLEE, Ms. HOOLEY, Mr. WEINER, Mr. MATHE-
SON, Mr. BUTTERFIELD, Mr. HASTERT, Mr. RADANOVICH, Mr. TERRY, 
Mrs. MYRICK, Mr. BURGESS, and Mr. ENGEL) introduced the following 
bill; which was referred to the Committee on Energy and Commerce 
A BILL 
To protect users of the Internet from unknowing trans-
mission of their personally identifiable information 
through spyware programs, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Securely Protect Your-
self Against Cyber Trespass Act’’ or the ‘‘Spy Act’’. 
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SEC. 2. PROHIBITION OF UNFAIR OR DECEPTIVE ACTS OR 
PRACTICES RELATING TO SPYWARE. 
(a) PROHIBITION.—It is unlawful for any person, 
who is not the owner or authorized user of a protected 
computer, to engage in unfair or deceptive acts or prac-
tices that involve any of the following conduct with respect 
to the protected computer: 
(1) Taking control of the computer by— 
(A) utilizing such computer to send unso-
licited information or material from the com-
puter to others; 
(B) diverting the Internet browser of the 
computer, or similar program of the computer 
used to access and navigate the Internet— 
(i) without authorization of the owner 
or authorized user of the computer; and 
(ii) away from the site the user in-
tended to view, to one or more other Web 
pages, such that the user is prevented from 
viewing the content at the intended Web 
page, unless such diverting is otherwise au-
thorized; 
(C) accessing, hijacking, or otherwise using 
the modem, or Internet connection or service, 
for the computer and thereby causing damage 
to the computer or causing the owner or au-
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thorized user or a third party defrauded by 
such conduct to incur charges or other costs for 
a service that is not authorized by such owner 
or authorized user; 
(D) using the computer as part of an ac-
tivity performed by a group of computers that 
causes damage to another computer; or 
(E) delivering advertisements that a user 
of the computer cannot close without undue ef-
fort or knowledge by the user or without turn-
ing off the computer or closing all sessions of 
the Internet browser for the computer. 
(2) Modifying settings related to use of the 
computer or to the computer’s access to or use of 
the Internet by altering— 
(A) the Web page that appears when the 
owner or authorized user launches an Internet 
browser or similar program used to access and 
navigate the Internet; 
(B) the default provider used to access or 
search the Internet, or other existing Internet 
connections settings; 
(C) a list of bookmarks used by the com-
puter to access Web pages; or 
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(D) security or other settings of the com-
puter that protect information about the owner 
or authorized user for the purposes of causing 
damage or harm to the computer or owner or 
user. 
(3) Collecting personally identifiable informa-
tion through the use of a keystroke logging function. 
(4) Inducing the owner or authorized user of 
the computer to disclose personally identifiable infor-
mation by means of a Web page that— 
(A) is substantially similar to a Web page 
established or provided by another person; and 
(B) misleads the owner or authorized user 
that such Web page is provided by such other 
person. 
(5) Inducing the owner or authorized user to 
install a component of computer software onto the 
computer, or preventing reasonable efforts to block 
the installation or execution of, or to disable, a com-
ponent of computer software by— 
(A) presenting the owner or authorized 
user with an option to decline installation of 
such a component such that, when the option is 
selected by the owner or authorized user or 
when the owner or authorized user reasonably 
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attempts to decline the installation, the installa-
tion nevertheless proceeds; or 
(B) causing such a component that the 
owner or authorized user has properly removed 
or disabled to automatically reinstall or reac-
tivate on the computer. 
(6) Misrepresenting that installing a separate 
component of computer software or providing log-in 
and password information is necessary for security 
or privacy reasons, or that installing a separate com-
ponent of computer software is necessary to open, 
view, or play a particular type of content. 
(7) Inducing the owner or authorized user to 
install or execute computer software by misrepre-
senting the identity or authority of the person or en-
tity providing the computer software to the owner or 
user. 
(8) Inducing the owner or authorized user to 
provide personally identifiable, password, or account 
information to another person— 
(A) by misrepresenting the identity of the 
person seeking the information; or 
(B) without the authority of the intended 
recipient of the information. 
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(9) Removing, disabling, or rendering inoper-
ative a security, anti-spyware, or anti-virus tech-
nology installed on the computer. 
(10) Installing or executing on the computer 
one or more additional components of computer soft-
ware with the intent of causing a person to use such 
components in a way that violates any other provi-
sion of this section. 
(b) GUIDANCE.—The Commission shall issue guid-
ance regarding compliance with and violations of this sec-
tion. This subsection shall take effect upon the date of 
the enactment of this Act. 
(c) EFFECTIVE DATE.—Except as provided in sub-
section (b), this section shall take effect upon the expira-
tion of the 6-month period that begins on the date of the 
enactment of this Act. 
SEC. 3. PROHIBITION OF COLLECTION OF CERTAIN INFOR-
MATION WITHOUT NOTICE AND CONSENT. 
(a) OPT-IN REQUIREMENT.—Except as provided in 
subsection (e), it is unlawful for any person— 
(1) to transmit to a protected computer, which 
is not owned by such person and for which such per-
son is not an authorized user, any information col-
lection program, unless— 
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(A) such information collection program 
provides notice in accordance with subsection 
(c) before execution of any of the information 
collection functions of the program; and 
(B) such information collection program 
includes the functions required under sub-
section (d); or 
(2) to execute any information collection pro-
gram installed on such a protected computer un-
less— 
(A) before execution of any of the informa-
tion collection functions of the program, the 
owner or an authorized user of the protected 
computer has consented to such execution pur-
suant to notice in accordance with subsection 
(c); and 
(B) such information collection program 
includes the functions required under sub-
section (d). 
(b) INFORMATION COLLECTION PROGRAM.— 
(1) IN GENERAL.—For purposes of this section, 
the term ‘‘information collection program’’ means 
computer software that performs either of the fol-
lowing functions: 
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(A) COLLECTION OF PERSONALLY IDENTI-
FIABLE
INFORMATION.—The computer soft-
ware— 
(i) collects personally identifiable in-
formation; and 
(ii)(I) sends such information to a 
person other than the owner or authorized 
user of the computer, or 
(II) uses such information to deliver 
advertising to, or display advertising on, 
the computer. 
(B) COLLECTION
OF
INFORMATION
RE-
GARDING WEB PAGES VISITED TO DELIVER AD-
VERTISING.—The computer software— 
(i) collects information regarding the 
Web pages accessed using the computer; 
and 
(ii) uses such information to deliver 
advertising to, or display advertising on, 
the computer. 
(2) EXCEPTION
FOR
SOFTWARE
COLLECTING 
INFORMATION
REGARDING
WEB
PAGES
VISITED 
WITHIN A PARTICULAR WEB SITE.—Computer soft-
ware that otherwise would be considered an informa-
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tion collection program by reason of paragraph 
(1)(B) shall not be considered such a program if— 
(A) the only information collected by the 
software regarding Web pages that are accessed 
using the computer is information regarding 
Web pages within a particular Web site; 
(B) such information collected is not sent 
to a person other than— 
(i) the provider of the Web site 
accessed; or 
(ii) a party authorized to facilitate the 
display or functionality of Web pages with-
in the Web site accessed; and 
(C) the only advertising delivered to or dis-
played on the computer using such information 
is advertising on Web pages within that par-
ticular Web site. 
(c) NOTICE AND CONSENT.— 
(1) IN GENERAL.—Notice in accordance with 
this subsection with respect to an information collec-
tion program is clear and conspicuous notice in plain 
language, set forth as the Commission shall provide, 
that meets all of the following requirements: 
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(A) The notice clearly distinguishes such 
notice from any other information visually pre-
sented contemporaneously on the computer. 
(B) The notice contains one of the fol-
lowing statements, as applicable, or a substan-
tially similar statement: 
(i) With respect to an information col-
lection program described in subsection 
(b)(1)(A): ‘‘This program will collect and 
transmit information about you. Do you 
accept?’’. 
(ii) With respect to an information 
collection program described in subsection 
(b)(1)(B): ‘‘This program will collect infor-
mation about Web pages you access and 
will use that information to display adver-
tising on your computer. Do you accept?’’. 
(iii) With respect to an information 
collection program that performs the ac-
tions described in both subparagraphs (A) 
and (B) of subsection (b)(1): ‘‘This pro-
gram will collect and transmit information 
about you and will collect information 
about Web pages you access and use that 
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information to display advertising on your 
computer. Do you accept?’’. 
(C) The notice provides for the user— 
(i) to grant or deny consent referred 
to in subsection (a) by selecting an option 
to grant or deny such consent; and 
(ii) to abandon or cancel the trans-
mission or execution referred to in sub-
section (a) without granting or denying 
such consent. 
(D) The notice provides an option for the 
user to select to display on the computer, before 
granting or denying consent using the option 
required under subparagraph (C), a clear de-
scription of— 
(i) the types of information to be col-
lected and sent (if any) by the information 
collection program; 
(ii) the purpose for which such infor-
mation is to be collected and sent; and 
(iii) in the case of an information col-
lection program that first executes any of 
the information collection functions of the 
program together with the first execution 
of other computer software, the identity of 
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any such software that is an information 
collection program. 
(E) The notice provides for concurrent dis-
play of the information required under subpara-
graphs (B) and (C) and the option required 
under subparagraph (D) until the user— 
(i) grants or denies consent using the 
option required under subparagraph (C)(i); 
(ii) abandons or cancels the trans-
mission or execution pursuant to subpara-
graph (C)(ii); or 
(iii) selects the option required under 
subparagraph (D). 
(2) SINGLE
NOTICE.—The Commission shall 
provide that, in the case in which multiple informa-
tion collection programs are provided to the pro-
tected computer together, or as part of a suite of 
functionally related software, the notice require-
ments of paragraphs (1)(A) and (2)(A) of subsection 
(a) may be met by providing, before execution of any 
of the information collection functions of the pro-
grams, clear and conspicuous notice in plain lan-
guage in accordance with paragraph (1) of this sub-
section by means of a single notice that applies to 
all such information collection programs, except that 
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such notice shall provide the option under subpara-
graph (D) of paragraph (1) of this subsection with 
respect to each such information collection program. 
(3) CHANGE IN INFORMATION COLLECTION.—If 
an owner or authorized user has granted consent to 
execution of an information collection program pur-
suant to a notice in accordance with this subsection: 
(A) IN
GENERAL.—No subsequent such 
notice is required, except as provided in sub-
paragraph (B). 
(B) SUBSEQUENT
NOTICE.—The person 
who transmitted the program shall provide an-
other notice in accordance with this subsection 
and obtain consent before such program may be 
used to collect or send information of a type or 
for a purpose that is materially different from, 
and outside the scope of, the type or purpose 
set forth in the initial or any previous notice. 
(4) REGULATIONS.—The Commission shall 
issue regulations to carry out this subsection. 
(d) REQUIRED FUNCTIONS.—The functions required 
under this subsection to be included in an information col-
lection program that executes any information collection 
functions with respect to a protected computer are as fol-
lows: 
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(1) DISABLING
FUNCTION.—With respect to 
any information collection program, a function of 
the program that allows a user of the program to re-
move the program or disable operation of the pro-
gram with respect to such protected computer by a 
function that— 
(A) is easily identifiable to a user of the 
computer; and 
(B) can be performed without undue effort 
or knowledge by the user of the protected com-
puter. 
(2) IDENTITY FUNCTION.— 
(A) IN GENERAL.—With respect only to an 
information collection program that uses infor-
mation collected in the manner described in 
subparagraph (A)(ii)(II) or (B)(ii) of subsection 
(b)(1) and subject to subparagraph (B) of this 
paragraph, a function of the program that pro-
vides that each display of an advertisement di-
rected or displayed using such information, 
when the owner or authorized user is accessing 
a Web page or online location other than of the 
provider of the computer software, is accom-
panied by the name of the information collec-
tion program, a logogram or trademark used 
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for the exclusive purpose of identifying the pro-
gram, or a statement or other information suffi-
cient to clearly identify the program. 
(B) EXEMPTION FOR EMBEDDED ADVER-
TISEMENTS.—The Commission shall, by regula-
tion, exempt from the applicability of subpara-
graph (A) the embedded display of any adver-
tisement on a Web page that contempora-
neously displays other information. 
(3) RULEMAKING.—The Commission may issue 
regulations to carry out this subsection. 
(e) LIMITATION
ON LIABILITY.—A telecommuni-
cations carrier, a provider of information service or inter-
active computer service, a cable operator, or a provider 
of transmission capability shall not be liable under this 
section to the extent that the carrier, operator, or pro-
vider— 
(1) transmits, routes, hosts, stores, or provides 
connections for an information collection program 
through a system or network controlled or operated 
by or for the carrier, operator, or provider; or 
(2) provides an information location tool, such 
as a directory, index, reference, pointer, or hypertext 
link, through which the owner or user of a protected 
computer locates an information collection program. 
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SEC. 4. ENFORCEMENT. 
(a) UNFAIR OR DECEPTIVE ACT OR PRACTICE.— 
This Act shall be enforced by the Commission under the 
Federal Trade Commission Act (15 U.S.C. 41 et seq.). 
A violation of any provision of this Act or of a regulation 
issued under this Act shall be treated as an unfair or de-
ceptive act or practice violating a rule promulgated under 
section 18 of the Federal Trade Commission Act (15 
U.S.C. 57a). 
(b) PENALTY FOR PATTERN OR PRACTICE VIOLA-
TIONS.— 
(1) IN GENERAL.—Notwithstanding subsection 
(a) and the Federal Trade Commission Act, in the 
case of a person who engages in a pattern or prac-
tice that violates section 2 or 3, the Commission 
may, in its discretion, seek a civil penalty for such 
pattern or practice of violations in an amount, as de-
termined by the Commission, of not more than— 
(A) $3,000,000 for each violation of sec-
tion 2; and 
(B) $1,000,000 for each violation of sec-
tion 3. 
(2) TREATMENT OF SINGLE ACTION OR CON-
DUCT.—In applying paragraph (1)— 
(A) any single action or conduct that vio-
lates section 2 or 3 with respect to multiple 
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protected computers shall be treated as a single 
violation; and 
(B) any single action or conduct that vio-
lates more than one paragraph of section 2(a) 
shall be considered multiple violations, based on 
the number of such paragraphs violated. 
(c) REQUIRED SCIENTER.—Civil penalties sought 
under this section for any action may not be granted by 
the Commission or any court unless the Commission or 
court, respectively, establishes that the action was com-
mitted with actual knowledge or knowledge fairly implied 
on the basis of objective circumstances that such act is 
unfair or deceptive or violates this Act. 
(d) FACTORS IN AMOUNT OF PENALTY.—In deter-
mining the amount of any penalty pursuant to subsection 
(a) or (b), the court shall take into account the degree 
of culpability, any history of prior such conduct, ability 
to pay, effect on ability to continue to do business, and 
such other matters as justice may require. 
(e) EXCLUSIVENESS OF REMEDIES.—The remedies 
in this section (including remedies available to the Com-
mission under the Federal Trade Commission Act) are the 
exclusive remedies for violations of this Act. 
(f) EFFECTIVE DATE.—To the extent only that this 
section applies to violations of section 2(a), this section 
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shall take effect upon the expiration of the 6-month period 
that begins on the date of the enactment of this Act. 
SEC. 5. LIMITATIONS. 
(a) LAW ENFORCEMENT AUTHORITY.—Sections 2 
and 3 shall not apply to— 
(1) any act taken by a law enforcement agent 
in the performance of official duties; or 
(2) the transmission or execution of an infor-
mation collection program in compliance with a law 
enforcement, investigatory, national security, or reg-
ulatory agency or department of the United States 
or any State in response to a request or demand 
made under authority granted to that agency or de-
partment, including a warrant issued under the Fed-
eral Rules of Criminal Procedure, an equivalent 
State warrant, a court order, or other lawful proc-
ess. 
(b) EXCEPTION RELATING TO SECURITY.—Nothing 
in this Act shall apply to— 
(1) any monitoring of, or interaction with, a 
subscriber’s Internet or other network connection or 
service, or a protected computer, by a telecommuni-
cations carrier, cable operator, computer hardware 
or software provider, or provider of information serv-
ice or interactive computer service, to the extent that 
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such monitoring or interaction is for network or 
computer security purposes, diagnostics, technical 
support, or repair, or for the detection or prevention 
of fraudulent activities; or 
(2) a discrete interaction with a protected com-
puter by a provider of computer software solely to 
determine whether the user of the computer is au-
thorized to use such software, that occurs upon— 
(A) initialization of the software; or 
(B) an affirmative request by the owner or 
authorized user for an update of, addition to, or 
technical service for, the software. 
(c) GOOD SAMARITAN PROTECTION.—No provider of 
computer software or of interactive computer service may 
be held liable under this Act on account of any action vol-
untarily taken, or service provided, in good faith to remove 
or disable a program used to violate section 2 or 3 that 
is installed on a computer of a customer of such provider, 
if such provider notifies the customer and obtains the con-
sent of the customer before undertaking such action or 
providing such service. 
(d) LIMITATION ON LIABILITY.—A manufacturer or 
retailer of computer equipment shall not be liable under 
this Act to the extent that the manufacturer or retailer 
is providing third party branded computer software that 
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is installed on the equipment the manufacturer or retailer 
is manufacturing or selling. 
SEC. 6. EFFECT ON OTHER LAWS. 
(a) PREEMPTION OF STATE LAW.— 
(1) PREEMPTION
OF
SPYWARE
LAWS.—This 
Act supersedes any provision of a statute, regula-
tion, or rule of a State or political subdivision of a 
State that expressly regulates— 
(A) unfair or deceptive conduct with re-
spect to computers similar to that described in 
section 2(a); 
(B) the transmission or execution of a 
computer program similar to that described in 
section 3; or 
(C) the use of computer software that dis-
plays advertising content based on the Web 
pages accessed using a computer. 
(2) ADDITIONAL PREEMPTION.— 
(A) IN GENERAL.—No person other than 
the Attorney General of a State may bring a 
civil action under the law of any State if such 
action is premised in whole or in part upon the 
defendant violating any provision of this Act. 
(B) PROTECTION OF CONSUMER PROTEC-
TION LAWS.—This paragraph shall not be con-
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strued to limit the enforcement of any State 
consumer protection law by an Attorney Gen-
eral of a State. 
(3) PROTECTION OF CERTAIN STATE LAWS.— 
This Act shall not be construed to preempt the ap-
plicability of— 
(A) State trespass, contract, or tort law; or 
(B) other State laws to the extent that 
those laws relate to acts of fraud. 
(b) PRESERVATION OF FTC AUTHORITY.—Nothing 
in this Act may be construed in any way to limit or affect 
the Commission’s authority under any other provision of 
law, including the authority to issue advisory opinions 
(under part 1 of volume 16 of the Code of Federal Regula-
tions), policy statements, or guidance regarding this Act. 
SEC. 7. ANNUAL FTC REPORT. 
For the 12-month period that begins upon the effec-
tive date under section 12(a) and for each 12-month pe-
riod thereafter, the Commission shall submit a report to 
the Congress that— 
(1) specifies the number and types of actions 
taken during such period to enforce section 2(a) and 
section 3, the disposition of each such action, any 
penalties levied in connection with such actions, and 
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any penalties collected in connection with such ac-
tions; and 
(2) describes the administrative structure and 
personnel and other resources committed by the 
Commission for enforcement of this Act during such 
period. 
Each report under this subsection for a 12-month period 
shall be submitted not later than 90 days after the expira-
tion of such period. 
SEC. 8. FTC REPORT ON COOKIES. 
(a) IN GENERAL.—Not later than the expiration of 
the 6-month period that begins on the date of the enact-
ment of this Act, the Commission shall submit a report 
to the Congress regarding the use of cookies, including 
tracking cookies, in the delivery or display of advertising 
to the owners and users of computers. The report shall 
examine and describe the methods by which cookies and 
the Web sites that place them on computers function sepa-
rately and together, and shall compare the use of cookies 
with the use of information collection programs (as such 
term is defined in section 3) to determine the extent to 
which such uses are similar or different. The report may 
include such recommendations as the Commission con-
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siders necessary and appropriate, including treatment of 
cookies under this Act or other laws. 
(b) DEFINITION.—For purposes of this section, the 
term ‘‘tracking cookie’’ means a cookie or similar text or 
data file used alone or in conjunction with one or more 
Web sites to transmit or convey, to a party other than 
the intended recipient, personally identifiable information 
of a computer owner or user, information regarding Web 
pages accessed by the owner or user, or information re-
garding advertisements previously delivered to a computer, 
for the purpose of— 
(1) delivering or displaying advertising to the 
owner or user; or 
(2) assisting the intended recipient to deliver or 
display advertising to the owner, user, or others. 
(c) EFFECTIVE DATE.—This section shall take effect 
on the date of the enactment of this Act. 
SEC. 9. FTC REPORT ON INFORMATION COLLECTION PRO-
GRAMS 
INSTALLED 
BEFORE 
EFFECTIVE 
DATE. 
Not later than the expiration of the 6-month period 
that begins on the date of the enactment of this Act, the 
Commission shall submit a report to the Congress on the 
extent to which there are installed on protected computers 
information collection programs that, but for installation 
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prior to the effective date under section 12(a), would be 
subject to the requirements of section 3. The report shall 
include recommendations regarding the means of afford-
ing computer users affected by such information collection 
programs the protections of section 3, including rec-
ommendations regarding requiring a one-time notice and 
consent by the owner or authorized user of a computer 
to the continued collection of information by such a pro-
gram so installed on the computer. 
SEC. 10. REGULATIONS. 
(a) IN GENERAL.—The Commission shall issue the 
regulations required by this Act not later than the expira-
tion of the 6-month period beginning on the date of the 
enactment of this Act. In exercising its authority to issue 
any regulation under this Act, the Commission shall deter-
mine that the regulation is consistent with the public in-
terest and the purposes of this Act. Any regulations issued 
pursuant to this Act shall be issued in accordance with 
section 553 of title 5, United States Code. 
(b) EFFECTIVE DATE.—This section shall take effect 
on the date of the enactment of this Act. 
SEC. 11. DEFINITIONS. 
For purposes of this Act: 
(1) CABLE OPERATOR.—The term ‘‘cable oper-
ator’’ has the meaning given such term in section 
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602 of the Communications Act of 1934 (47 U.S.C. 
522). 
(2) COLLECT.—The term ‘‘collect’’, when used 
with respect to information and for purposes only of 
section 3(b)(1)(A), does not include obtaining of the 
information by a party who is intended by the owner 
or authorized user of a protected computer to receive 
the information or by a third party authorized by 
such intended recipient to receive the information, 
pursuant to the owner or authorized user— 
(A) transferring the information to such 
intended recipient using the protected com-
puter; or 
(B) storing the information on the pro-
tected computer in a manner so that it is acces-
sible by such intended recipient. 
(3) COMPUTER; PROTECTED COMPUTER.—The 
terms ‘‘computer’’ and ‘‘protected computer’’ have 
the meanings given such terms in section 1030(e) of 
title 18, United States Code. 
(4) COMPUTER SOFTWARE.— 
(A) IN GENERAL.—Except as provided in 
subparagraph (B), the term ‘‘computer soft-
ware’’ means a set of statements or instructions 
that can be installed and executed on a com-
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