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H.B. 323
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SPYWARE REGULATION
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2004 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Stephen H. Urquhart
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LONG TITLE
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General Description:
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This bill enacts provisions within the Commerce and Trade Code relating to certain
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uses of spyware.
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Highlighted Provisions:
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This bill:
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. defines terms;
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. prohibits spyware from delivering advertisements to a computer under certain
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circumstances;
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. requires spyware to provide removal procedures;
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. authorizes the attorney general to enforce the requirements;
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. allows a website, trademark, or copyright owner to bring an action to enforce the
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requirements; and
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. requires the attorney general to gather information and evaluate the provisions of
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this bill.
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Monies Appropriated in this Bill:
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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ENACTS:
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13-39-101, Utah Code Annotated 1953
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13-39-102, Utah Code Annotated 1953
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13-39-201, Utah Code Annotated 1953
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13-39-301, Utah Code Annotated 1953
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13-39-302, Utah Code Annotated 1953
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13-39-303, Utah Code Annotated 1953
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13-39-401, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
13-39-101
is enacted to read:
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CHAPTER 39. SPYWARE CONTROL ACT
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Part 1. General Provisions
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13-39-101. Title.
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This chapter is known as the "Spyware Control Act."
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Section 2.
Section
13-39-102
is enacted to read:
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13-39-102. Definitions.
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As used in this chapter:
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(1) "Internet" is as defined in the Internet Tax Freedom Act, Pub. L. No. 105-277.
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(2) "Spyware" means software residing on a computer that:
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(a) monitors the computer's usage;
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(b) (i) records information about the computer's usage; or
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(ii) sends information about the computer's usage to a remote computer or server;
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(c) causes an advertisement to appear when a user accesses an Internet website if the
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advertisement:
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(i) does not clearly identify the full legal name of the entity responsible for delivering
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the advertisement;
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(ii) uses a federally registered trademark as a trigger for the display of an advertisement
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by a person other than:
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(A) the trademark owner; or
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(B) an authorized agent or licensee of the trademark owner;
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(iii) uses a triggering mechanism to display advertisements according to the Internet
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websites accessed by a user; or
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(iv) covers or obscures paid advertising or other content on an Internet website in a
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way that interferes with:
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(A) an authorized advertiser's ability to reach a user; or
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(B) a user's ability to view an Internet website; and
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(d) does not:
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(i) obtain the consent of the user, after installation of the software but before the
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software does any of the actions described in Subsections (2)(a) through (c), to:
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(A) a license agreement:
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(I) presented in full; and
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(II) written in plain language;
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(B) a notice of the collection of each specific type of information to be transmitted as a
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result of the software installation;
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(C) a clear and representative full-size example of each type of advertisement that may
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be delivered;
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(D) a truthful statement of the frequency with which each type of advertisement may be
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delivered; and
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(E) for each type of advertisement delivered by the software, a clear description of a
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method by which a user may distinguish the advertisement by its appearance from
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advertisements generated by other software services; and
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(ii) provide a method:
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(A) by which a user may easily disable and remove the software from the user's
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computer;
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(B) that does not have other effects on the user's computer; and
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(C) that uses usual and ordinary methods for removal of computer software.
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(3) "User" means a person who accesses an Internet website.
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Section 3.
Section
13-39-201
is enacted to read:
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Part 2. Prohibition of Spyware
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13-39-201. Prohibition on spyware.
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(1) A person may not:
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(a) create spyware;
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(b) cause spyware to be created;
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(c) install spyware on another person's computer; or
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(d) cause spyware to be installed on another person's computer.
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(2) It is not a defense to a violation of this section that a user may remove or hide an
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advertisement caused by spyware.
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Section 4.
Section
13-39-301
is enacted to read:
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Part 3. Enforcement
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13-39-301. Action by attorney general.
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(1) If the attorney general finds that the residents of Utah are threatened or adversely
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affected by a violation of this chapter, the attorney general may bring an action:
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(a) against a person who violates this chapter; and
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(b) on behalf of the residents of Utah.
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(2) In an action under Subsection (1), the state may:
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(a) obtain an injunction against committing any further violation of this chapter; and
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(b) recover the greater of:
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(i) actual damages; or
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(ii) $10,000 for each separate violation of this chapter.
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(3) In an action under Subsection (1), a court may:
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(a) increase the damages up to three times the damages allowed by Subsection (2) if the
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court finds the defendant willfully or knowingly violated this chapter; and
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(b) award costs and attorney fees to a prevailing party.
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Section 5.
Section
13-39-302
is enacted to read:
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13-39-302. Private action.
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(1) An action for a violation of this chapter may be brought:
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(a) against a person who violates this chapter; and
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(b) by any of the following who are adversely affected by a violation of this chapter:
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(i) an Internet website owner or registrant; or
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(ii) a trademark or copyright owner.
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(2) In an action under Subsection (1), a person may:
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(a) obtain an injunction against committing any further violation of this chapter; and
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(b) recover the greater of:
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(i) actual damages; or
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(ii) $10,000 for each separate violation of this chapter.
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(3) In an action under Subsection (1), a court may:
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(a) increase the damages up to three times the damages allowed by Subsection (2) if the
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court finds the defendant willfully or knowingly violated this chapter; and
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(b) award costs and reasonable attorney fees to a prevailing party.
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Section 6.
Section
13-39-303
is enacted to read:
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13-39-303. Limitations on actions.
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(1) A person may not bring an action for a violation of this chapter against an Internet
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service provider for the routine transmission of information that contains an advertisement
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violating this chapter.
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(2) A person may not bring a class action under this chapter.
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Section 7.
Section
13-39-401
is enacted to read:
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Part 4. Duties of Attorney General
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13-39-401. Information gathering -- Evaluations.
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The attorney general shall:
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(1) establish procedures by which a person may report a violation of this chapter to the
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attorney general, including:
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(a) an Internet website; and
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(b) a toll-free telephone number;
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(2) compare and evaluate:
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(a) alternative methods and procedures to protect privacy rights; and
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(b) the cost and effectiveness of methods and procedures described in Subsection
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(2)(a);
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(3) evaluate public or private entities with the capacity to establish and administer
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methods and procedures described in Subsection (2)(a); and
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(4) make recommendations to the Public Utilities and Technology Interim Committee
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if the attorney general finds a need for additional provisions to this chapter.
Legislative Review Note
as of 2-4-04 2:47 PM
This bill regulates software that creates advertisements on a computer as a result of visiting
certain Internet websites, and that collects information regarding the computer's Internet use.
Case law surrounding regulation of Internet activities is evolving. State regulations of Internet
activities have been challenged for violating principles such as the Commerce Clause of the
United States Constitution. Some courts have indicated that the need for national uniformity
limits a state's ability to regulate Internet activities. Under other court rulings, however, this bill
could be upheld if a court determined that the benefits this bill provides to Utahans outweigh
the burden the bill places on interstate commerce.