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2004 State Legislation Relating to Internet Spyware or Adware
Last update: January 28, 2005
See also 2005 State Legislation Relating to Internet Spyware or Adware Spyware is software that can track or collect the online activities or personal information of Web users, change settings on users computers, or cause advertising messages to popup on users' computer screens. Web users are often unaware that spyware has been downloaded to their computers, and it can be very difficult or almost impossible to remove. On April 19, 2004, the Federal Trade Commission held a public workshop, "Monitoring Software on Your PC: Spyware, Adware, and Other Software." The workshop addressed, among other things, possible responses to spyware concerns, including a discussion of what consumers, government, and industry have been doing and intend to do, by themselves or together, to address the harms associated with spyware. Spyware legislation was enacted in California and Utah in 2004, and was introduced in at least five other states in 2004, as listed below.
CALIFORNIA
A.B. 2787
Status: 6/30/04 Re-referred to Judiciary Committee
This bill would require a person or entity providing computer software containing adware or spyware, as defined, to a computer in California to provide the recipient with a privacy policy containing specified information. The bill would prohibit advertisement in adware distributed in violation of that requirement. The bill would also prohibit the provision of spyware that would collect personal financial information supplied by a computer user in filling out forms online. The bill would prohibit e-mails containing links to adware or spyware that automatically downloads into a computer, and would prohibit Web pages that automatically download adware or spyware when the page is viewed, unless the Web page provides clear and conspicuous notice and obtains the user's consent. The bill would make a commercial enterprise that violates any of these provisions subject to an unspecified administrative fine by the department for each violation.
S.B. 1436
Status: 9/28/04 Signed by Governor, Chap. 843
This bill would prohibit a person or entity other than the authorized user of a computer owned by a person in California from, with actual knowledge, conscious avoidance of actual knowledge, or willfully, causing computer software to be copied onto the computer and using the software to (1) take control of the computer, as specified, (2) modify certain settings relating to the computer's access to or use of the Internet, as specified, (3) collect, through intentionally deceptive means, personally identifiable information, as defined, (4) prevent, without authorization, an authorized user's reasonable efforts to block the installation of or disable software, as specified, (5) intentionally misrepresent that the software will be uninstalled or disabled by an authorized user's action, or (6) through intentionally deceptive means, remove, disable, or render inoperative security, antispyware, or antivirus software installed on the computer. The bill would also prohibit a person or entity who is not an authorized user from inducing an authorized user to install a software component by intentionally misrepresenting that it is necessary for security or privacy or in order to open, view, or play a particular type of content. The bill would prohibit a person or entity who is not an authorized user from deceptively causing the copying and execution on the computer of software components with the intent of causing an authorized user to use the components in a way that violates any of these prohibitions. The bill would provide that if any part of these provisions or their applications are held invalid, the invalidity would not affect other provisions.
S.B. 1530
Status: 3/4/04 To Senate Committee on Rules
This bill would state the intent of the Legislature to address the problem of computer spyware.
IOWA
S.F. 2200
Status: March 1, 2004 Introduced, referred to Judiciary. (Legislature adjourned April 20, 2004)
An act establishing the criminal offense of and a civil cause of action for the unauthorized collection and disclosure of personal information by computer, and providing a penalty.
MICHIGAN
S.B. 1315
Status: 6/22/04 Referred to Senate Committee on Technology and Energy
This bill would prohibit access to computers, computer systems, and computer networks for certain fraudulent purposes, including intentional and unauthorized access, alteration, damage, and destruction of computers, computer systems, and computer networks, computer software programs, and data. S.B. 1316
Status: 6/22/04 Referred to Senate Committee on Technology and Energy
This bill would prohibit installing spyware on another person's computer without consent and establishes sentencing guidelines for the crime of installing spyware on another person's computer without consent. S.B. 1361
Status: 9/8/04 Referred to Judiciary Committee
This bill would prohibit certain conduct relating to computer spyware and the unauthorized collection and use of information from computers; to prescribe the powers and duties of certain state agencies and officers; and to provide remedies.
NEW YORK
A.B. 11531
Status: 6/15/04 Referred to Senate Committee on Codes
Creates the crime of unlawful dissemination of spyware and establishes such crime as a class A misdemeanor; expands eavesdropping to include information that is intercepted by the use of spyware; requires an authorization agreement to be provided to a computer user by a person or entity that provides software for download. S.B. 7141
Status: 6/17/04 Passed Senate; 6/17/04 Referred to Assembly Committee on Codes
This bill would create the crime of unlawful dissemination of spyware and would establishes such crime as a class A misdemeanor. It would also expand eavesdropping to include information that is intercepted by the use of spyware. The bill would require an authorization agreement to be provided to a computer user by a person or entity that provides software for download.
PENNSYLVANIA
H.B. 2788
Status: 7/1/04 Referred to House Committee on Consumer Affairs
An Act amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, further providing for unlawful transmission of electronic mail; and providing for misuse of adware or spyware.
UTAH
H.B. 323
Status: 3/23/04, Signed by Governor
**Preliminary injunction granted, WhenU.com vs. The State of Utah, 3rd Judicial District Court, Salt Lake County, Utah
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.
VIRGINIA
H.B. 1304
Status: 1/26/04 House: Continued to 2005 in Science & Technology
Requires public bodies to conduct a privacy impact analysis when authorizing or prohibiting the use of invasive technologies (e.g., radio frequency identification, tracking systems, facial recognition systems, hidden cameras, spyware, photo monitoring systems and Internet wiretaps) beginning July 1, 2006. The bill requires the Joint Commission on Technology and Science (JCOTS) to propose to the Governor and the 2006 General Assembly, by the first day of the 2006 Regular Session of the General Assembly, policies and guidelines for public bodies to follow in conducting the privacy impact analysis. In developing the policies and guidelines, the bill requires JCOTS to review the invasive technologies available for use, the current legal requirements of their use and the reasons for their use, their impact on civil liberties, and any safeguards that are or should be used to mitigate negative impacts.
NCSL Contact: Pam Greenberg, NCSL Denver Office, 303-364-7700
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