Spyware Control Act - Formatted, Indented Version
[ discussion and analysis of the bill - more
on spyware research, testing, legislation, and suits ]
Bill status: Passed by the Utah Legislature on March 3. Signed into law on March 23 by Utah Governor Olene S. Walker. Challenged by WhenU on April 12, seeking that the act be declared void and invalid. (See WhenU.com, Inc., v. The State of Utah - Case Documents.)
Original bill as posted (without full indentation) to Utah State Legislature web site.
Senator John L. Valentine proposes the following substitute bill:
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SPYWARE REGULATION
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2004 GENERAL SESSION
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STATE OF
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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 relatinvg 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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. 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 Division of Consumer Protection to collect complaints.
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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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ENACTS:
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13-39-101,
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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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13-39-401, Utah Code
Annotated 1953
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32
Be it enacted by the Legislature of the state of
Utah:
33 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
36 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:
39 13-39-102.
Definitions.
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As used in this chapter:
41 (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.
45 (2) "Division"
means the Division of Consumer Protection in the Department of
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Commerce.
47 (3) "Internet"
is as defined in the Internet Tax Freedom Act, Pub. L. No. 105-277.
48 (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; 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 of 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 before the
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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
may
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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.
88 (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.
96 (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.
117 (7) "User"
means:
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(a) a computer owner; or
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(b) a person who accesses an Internet website.
120 Section 3. Section 13-39-201
is enacted to read:
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Part 2. Prohibited Conduct
122 13-39-201.
Prohibited conduct.
123 (1) A person may
not:
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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.
131 Section 4. Section 13-39-301
is enacted to read:
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Part 3. Enforcement
133 13-39-301.
Private action.
134 (1) An action for
a violation of this chapter may be brought:
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(a) against a person who:
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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.
142 (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.
147 (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.
151 (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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13-39-102 (4)(b)(ii).
154 Section 5. Section 13-39-302
is enacted to read:
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13-39-302.
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:
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(a) security information; or
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(b) information that contains an advertisement violating this chapter.
160 (2) A person
may not bring a class action under this chapter.
161 Section 6. Section 13-39-401
is enacted to read:
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Part 4. Duties of Division
163 13-39-401.
Information gathering -- Evaluations.
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The division 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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division, including:
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(a) an Internet website; and
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(b) a toll-free telephone number; and
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(2) make recommendations
to the Public Utilities and Technology Interim Committee
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if the division finds
a need for additional provisions to this chapter.
Legislative Review Note
as of
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.
Office of Legislative Research and General Counsel