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H.B. 104
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SPYWARE CONTROL ACT REVISIONS
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2005 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 amends the Spyware Control Act.
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Highlighted Provisions:
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This bill:
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. defines terms;
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. prohibits certain uses of pop-up advertisements;
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. prohibits the purchase of pop-up advertisements that violate the chapter if the
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purchaser has actual notice of the violation;
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. provides for the permissive removal of certain software; and
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. defines the scope of actions and penalties authorized by the chapter.
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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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AMENDS:
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13-40-102, as enacted by Chapter 363, Laws of Utah 2004
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13-40-201, as enacted by Chapter 363, Laws of Utah 2004
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13-40-301, as enacted by Chapter 363, Laws of Utah 2004
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13-40-302, as enacted by Chapter 363, Laws of Utah 2004
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ENACTS:
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13-40-202, 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
13-40-102
is amended to read:
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13-40-102. Definitions.
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As used in this chapter:
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[(1) "Context based triggering mechanism" means a software based trigger or program
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residing on a consumer's computer that displays an advertisement according to:]
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[(a) the current Internet website accessed by a user; or]
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[(b) the contents or characteristics of the current Internet website accessed by a user.]
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(1) "Cookie" means a text file:
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(a) that is placed on a computer by:
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(i) an interactive computer service;
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(ii) an Internet website; or
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(iii) a third party acting on behalf of:
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(A) an interactive computer service; or
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(B) an Internet website; and
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(b) the function of which is to record information that can be read or recognized when
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the user of the computer later accesses a particular:
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(i) Internet website;
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(ii) online location; or
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(iii) online service.
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(2) "Division" means the Division of Consumer Protection in the Department of
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Commerce.
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(3) "Interactive computer service" means any information service, system, or access
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software provider that provides or enables computer access by multiple users to a computer
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server, including:
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(a) an Internet or online service provider; or
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(b) a service or system providing access to the Internet, including a system operated by
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a library or educational institution.
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[(3)] (4) "Internet" is as defined in the Internet Tax Freedom Act, Pub. L. No. 105-277.
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[(4) Except as provided in Subsection (5), "spyware" means software residing on a
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computer that:]
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[(a) monitors the computer's usage;]
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[(b) (i) sends information about the computer's usage to a remote computer or server;
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or]
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[(ii) displays or causes to be displayed an advertisement in response to the computer's
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usage if the advertisement:]
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[(A) does not clearly identify the full legal name of the entity responsible for delivering
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the advertisement;]
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[(B) uses a federally registered trademark as a trigger for the display of the
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advertisement by a person other than:]
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[(I) the trademark owner;]
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[(II) an authorized agent or licensee of the trademark owner; or]
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[(III) a recognized Internet search engine;]
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[(C) uses a triggering mechanism to display the advertisement according to the Internet
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websites accessed by a user; or]
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[(D) uses a context based triggering mechanism to display the advertisement that
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partially or wholly covers or obscures paid advertising or other content on an Internet website
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in a way that interferes with a user's ability to view the Internet website; and]
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[(c) does not:]
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[(i) obtain the consent of the user, at the time of, or after installation of the software but
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before the software does any of the actions described in Subsection (4)(b):]
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[(A) to 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) to a notice of the collection of each specific type of information to be transmitted
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as a result of the software installation;]
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[(C) to a clear and representative full-size example of each type of advertisement that
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may be delivered;]
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[(D) to a truthful statement of the frequency with which each type of advertisement
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may be 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 an
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advertisement generated by other software services; and]
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[(ii) provide a method:]
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[(A) by which a user may quickly and easily disable and remove the software from the
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user's computer;]
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[(B) that does not have other effects on the non-affiliated parts of the user's computer;
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and]
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[(C) that uses obvious, standard, usual, and ordinary methods for removal of computer
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software.]
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[(5) Notwithstanding Subsection (4), "spyware" does not include:]
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[(a) software designed and installed solely to diagnose or resolve technical difficulties;]
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[(b) software or data that solely report to an Internet website information previously
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stored by the Internet website on the user's computer, including:]
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[(i) cookies;]
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[(ii) HTML code; or]
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[(iii) Java Scripts; or]
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[(c) an operating system.]
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[(6) "Usage" means:]
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[(a) the Internet websites accessed by a user;]
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[(b) the contents or characteristics of the Internet websites accessed by a user;]
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[(c) a user's personal information, including:]
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[(i) a first and last name of a user, whether:]
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[(A) given at birth or adoption;]
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[(B) assumed; or]
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[(C) legally changed;]
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[(ii) any of the following with respect to a user's home or other physical address:]
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[(A) the street name;]
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[(B) the name of the city or town; or]
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[(C) the zip code;]
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[(iii) an electronic mail address;]
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[(iv) a telephone number;]
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[(v) a Social Security number;]
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[(vi) any personal identification number;]
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[(vii) a credit card number;]
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[(viii) any access code associated with a credit card;]
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[(ix) a date of birth, birth certificate number, or place of birth; or]
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[(x) a password or access code; or]
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[(d) a user's submission to forms or Internet websites.]
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(5) "Internet or online service provider" means an interactive computer service that
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provides software or other material that enables a person to:
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(a) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or
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translate content;
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(b) select or analyze content; or
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(c) allow or disallow content.
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(6) "Mark" means a registered trademark, registered service mark, or registered domain
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name in an Internet website address that is owned, licensed, or lawfully used by a person doing
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business in this state.
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(7) (a) Except as provided in Subsection (7)(b), "spyware" means software on the
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computer of a user who resides in this state that:
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(i) collects information about an Internet website at the time the Internet website is
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being viewed in this state, unless the Internet website is the Internet website of the person who
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provides the software; and
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(ii) uses the information described in Subsection (7)(a)(i) contemporaneously to
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display pop-up advertising on the computer.
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(b) "Spyware" does not include:
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(i) an Internet website;
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(ii) a service operated by an Internet or online service provider accessed by a user;
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(iii) software designed and installed primarily to:
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(A) prevent, diagnose, or resolve technical difficulties;
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(B) detect or prevent fraudulent activities; or
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(C) protect the security of the user's computer from unauthorized access or alteration;
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(iv) software or data that reports information to an Internet website previously stored
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by the Internet website on the user's computer, including cookies;
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(v) software that provides the user with the capability to search the Internet; or
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(vi) software installed with the consent of a user whose primary purpose is to prevent
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access to certain Internet content.
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(8) "Pop-up advertising" means material:
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(a) offering for sale or advertising the availability or quality of a property, good, or
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service; and
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(b) that is displayed:
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(i) separate from an Internet website; and
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(ii) as a result of a user accessing an Internet website.
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[(7)] (9) "User" means[:] the owner or authorized user of a computer.
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[(a) a computer owner; or]
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[(b) a person who accesses an Internet website.]
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Section 2.
Section
13-40-201
is amended to read:
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13-40-201. Prohibited conduct.
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(1) A person may not[:] display a pop-up advertisement by means of spyware with
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knowledge or reckless disregard that the pop-up advertisement is:
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[(a) install spyware on another person's computer;]
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[(b) cause spyware to be installed on another person's computer; or]
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[(c) use a context based triggering mechanism to display an advertisement that partially
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or wholly covers or obscures paid advertising or other content on an Internet website in a way
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that interferes with a user's ability to view the Internet website.]
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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.]
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(a) (i) displayed in response to a specific mark; or
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(ii) displayed in response to a specific Internet website address; and
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(b) purchased or acquired by a person other than:
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(i) the mark owner;
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(ii) a licensee of the mark;
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(iii) an authorized agent of the owner of the mark;
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(iv) an authorized user of the mark; or
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(v) a person advertising the lawful sale, lease, or transfer of products bearing the mark
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through a secondary marketplace for the sale of goods or services.
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(2) A person may not purchase or acquire advertising delivered in violation of
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Subsection (1) if:
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(a) the person receives actual notice from the mark owner of the violation;
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(b) the notice required by Subsection (2)(a) contains a detailed explanation of the
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violation; and
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(c) the person fails to take reasonable steps to stop the violation of Subsection (1) that
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is specified in the notice required in Subsection (2)(a).
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(3) (a) A person using spyware to display a pop-up advertisement under Subsection (1)
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is not guilty of violating this chapter if:
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(i) the person requests information about the user's state of residence before sending
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the spyware or the pop-up advertisement to the user; and
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(ii) the user indicates a residence outside this state.
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(b) A person purchasing or acquiring advertising under Subsection (2) is not guilty of
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violating this chapter if the person reasonably determines that the person delivering a pop-up
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advertisement by use of spyware under Subsection (1) has complied with Subsection (3)(a).
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(c) A person requesting information about a user's state of residence under Subsection
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(3)(a) may not prompt, ask, or otherwise encourage a user to indicate a residence outside this
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state.
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Section 3.
Section
13-40-202
is enacted to read:
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13-40-202. Permissive removal of potentially harmful software.
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If a provider of computer software or an interactive computer service provides prior
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notice to a person, that provider is not liable under the law of this state for removing or
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disabling a program used to:
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(1) violate a provision of this chapter; or
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(2) collect information from the computer of a user who is a customer of the provider
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without the user's knowledge.
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Section 4.
Section
13-40-301
is amended to read:
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13-40-301. Private action.
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(1) An action for a violation of this chapter may be brought[: (a)] against a person
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who[:] violates Section
13-40-201
by:
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[(i) violates this chapter; or]
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[(ii) causes a violation of 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;]
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[(ii) a trademark or copyright owner; or]
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[(iii) an authorized advertiser on an Internet website.]
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(a) the attorney general; or
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(b) a mark owner who:
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(i) does business in this state; and
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(ii) is directly and adversely affected by a violation of this chapter.
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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) subject to Subsection (3), recover the greater of:
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(i) actual damages; or
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(ii) [$10,000] $500 for each separate [violation of this chapter] occurrence resulting in
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the display of an advertisement prohibited by Section
13-40-201
.
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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)(b) if
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the court finds that 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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(4) For purposes of this section, a separate violation occurs for each individual
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occurrence that results in the display of an advertisement described in Subsection
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13-40-102
[(4)(b)(ii)](8).
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Section 5.
Section
13-40-302
is amended to read:
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13-40-302. 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] a person other than:
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[(a) security information; or]
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[(b) information that contains an advertisement violating this chapter.]
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(a) a person who sends a pop-up advertisement by means of spyware in violation of
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Subsection
13-40-201
(1); or
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(b) a person who purchases or acquires an advertisement in violation of Subsection
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13-40-201
(2).
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(2) A person may not bring a class action under this chapter.
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(3) This chapter does not preclude any person accused of violating this chapter from
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asserting any fair use or other defense that is available to persons alleged to have engaged in
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trademark infringement.
Legislative Review Note
as of 1-28-05 11:31 AM
Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.