[DOCID: f:sr262.109]
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109th Congress Report
SENATE
2nd Session 109-262
_______________________________________________________________________
Calendar No. 467
SOFTWARE PRINCIPLES YIELDING BETTER LEVELS OF CONSUMER KNOWLEDGE ACT
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 687
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
<greek-l>DATE deg.June 12, 2006.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred ninth congress
second session
TED STEVENS, Alaska, Chairman
DANIEL K. INOUYE, Hawaii, Co-Chairman
JOHN McCAIN, Arizona JOHN D. ROCKEFELLER IV, West
CONRAD BURNS, Montana Virginia
TRENT LOTT, Mississippi JOHN F. KERRY, Massachusetts
KAY BAILEY HUTCHISON, Texas BYRON L. DORGAN, North Dakota
OLYMPIA J. SNOWE, Maine BARBARA BOXER, California
GORDON H. SMITH, Oregon BILL NELSON, Florida
JOHN ENSIGN, Nevada MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia FRANK LAUTENBERG, New Jersey
JOHN E. SUNUNU, New Hampshire E. BENJAMIN NELSON, Nebraska
JIM DeMINT, South Carolina MARK PRYOR, Arkansas
DAVID VITTER, Louisiana
Lisa Sutherland, Staff Director
Christine Drager Kurth, Deputy Staff Director
Kenneth Nahigian, Chief Counsel
Margaret Cummisky, Democratic Staff Director and Chief Counsel
Samuel Whitehorn, Democratic Deputy Staff Director and General Counsel
Calendar No. 467
109th Congress Report
SENATE
2nd Session 109-262
======================================================================
SOFTWARE PRINCIPLES YIELDING BETTER LEVELS OF CONSUMER KNOWLEDGE ACT
_______
June 12, 2006.--Ordered to be printed
_______
Mr. Stevens, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
[To accompany S. 687]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill <greek-l>joint resolution deg. (S.
687) <greek-l>TITLE deg. to regulate the unauthorized
installation of computer software, to require clear disclosure
to computer users of certain computer software features that
may pose a threat to user privacy, and for other purposes,
having considered the same, reports favorably thereon
<greek-l>without amendment deg. <greek-l>with amendments deg.
with an amendment (in the nature of a substitute) and
recommends that the bill <greek-l>joint resolution deg. (as
amended) do pass.
Purpose of the Bill
The purpose of this legislation is to prohibit a variety of
unfair or deceptive software and online practices that may
result in spyware, adware or other unwanted software
surreptitiously being placed on consumers' computers. The
Committee substitute amended S. 687 to focus on unfair and
deceptive practices involving software, not on legitimate
software applications or legitimate uses of information. The
legislation would prohibit the unauthorized installation of
software that: (1) takes control of or modifies a user's
computer or prevents reasonable efforts by the user to block,
disable, or uninstall such software, (2) collects sensitive
personal information without the user's prior consent, (3)
collects and transmits personally identifiable information
without prior disclosure to, or the knowledge of the user, and
(4) causes advertising windows to appear on the user's
computer, except when certain conditions are met or exceptions
apply. The legislation also would clarify that the installation
of software on a user's computer shall be considered an unfair
or deceptive practice in violation of section 5 of the Federal
Trade Commission Act (15 U.S.C. 41 et seq.), and provide a
uniform national standard governing regulation of spyware and
adware without overriding State common law or generally
applicable consumer protection law. The legislation would not
inhibit ``anti-spyware'' software programs that remove spyware
from user computers.
Summary of Provisions
S. 687, the SPYBLOCK Act of 2005, would provide consumers
with protection against the unauthorized installation of
software commonly referred to as ``spyware'' that takes control
of a computer, modifies settings on a computer for various
improper purposes, and evades user efforts to uninstall the
software. The legislation also would provide a disclosure and
consent regime for the collection of sensitive personal
information by software programs and a disclosure regime for
personally identifiable information that is collected. It also
would prohibit adware that cannot be uninstalled and that does
not identify that it is triggering advertisements. Specific
exceptions are included to protect legitimate software
functionality.
Legislative History
On March 20, 2005, Senator Burns introduced S. 687, the
``SPYBLOCK Act of 2005.'' Senators Wyden and Boxer were
original co-sponsors, and were later joined by Senators Snowe
and Bill Nelson. On May 11, 2005, Senator Allen introduced S.
1004, the ``Enhanced Consumer Protection Against Spyware Act of
2005'', with Senators Ensign and Smith as original co-sponsors.
Senators DeMint, Enzi and Sununu also co-sponsored S. 1004. On
May 11, 2005, the Full Committee held a hearing on the topic of
spyware. Witnesses included industry associations, anti-Spyware
companies, consumer groups, and others. On October 5, 2005, the
Trade, Tourism and Economic Development Subcommittee held
another hearing on Spyware, with Chairwoman Majoras of the
Federal Trade Commission (FTC or Commission) as the sole
witness.
On November 17, 2005, the Committee met in open Executive
Session to consider an amendment in the nature of a substitute
to S. 687 offered by Senator Burns. This amendment was adopted
14-8 by a roll call vote. An amendment in the nature of a
substitute offered by Senator Allen to substitute the text of
S. 1004 was defeated by a 13-9 roll call vote. Senator Sununu
offered an amendment, which was accepted on voice vote. Senator
Sununu's amendment would double the FTC penalties for an unfair
or deceptive act or practice that exploits popular reaction to
a national emergency, major disaster, or international
disaster. The bill, as amended, was ordered to be reported.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
December 12, 2005
Hon. Ted Stevens,
Chairman, Committee on Commerce, Science, and Transportation
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 687, a bill to
regulate the unauthorized installation of computer software, to
require clear disclosure to computer users of certain computer
software features that may pose a threat to user privacy, and
for other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Melissa Z.
Petersen (for federal costs), Sarah Puro (for the impact on
state and local governments), and Paige Piper/Bach (for the
impact on the private sector.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure
S. 687--A bill to regulate the unauthorized installation of computer
software, to require clear disclosure to computer users of
certain computer software features that may pose a threat to
user privacy, and for other purposes
Summary: S. 687 would prohibit the use of computer software
(known as spyware) to collect personal information and to
monitor the behavior of computer users without a user's
consent. The Federal Trade Commission (FTC) would be directed
to enforce this bill's provisions relating to spyware. S. 687
also would direct the FTC to assess and collect civil penalties
for violations of laws relating to spyware and for unfair or
deceptive business practices committed during designated
emergency periods. (Civil penalties are recorded in the federal
budget as revenues.) Finally, S. 687 would establish criminal
penalties for certain unauthorized uses of a computer.
(Collections of criminal fines are recorded in the budget as
revenues, deposited in the Crime Victims Fund, and spent in
subsequent years.)
Based on information provided by the FTC, CBO estimates
that enacting S. 687 would not have a significant effect on
revenues or direct spending. Assuming appropriation of the
necessary amounts, CBO estimates that implementing the bill
would cost about $1 million in 2006 and about $7 million over
the 2006-2010 period.
S. 687 contains intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA), but CBO estimates that
the resulting costs for state, local, and tribal governments
would be minimal and would not exceed the threshold established
in UMRA ($62 million in 2005, adjusted annually for inflation).
S. 687 would impose private-sector mandates, as defined in
UMRA, on persons who cause the installation of certain software
on computers owned by another person. Based on information from
the industry and the FTC, CBO expects that the aggregate direct
cost to comply with those mandates would be small and fall
below the annual threshold established by UMRA for private-
sector mandates ($123 million in 2005, adjusted annually for
inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 687 is shown in the following table. The
costs of this legislation fall within budget function 370
(commerce and housing credit).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------
2006 2007 2008 2009 2010
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated authorization level................................. 1 1 1 2 2
Estimated outlays............................................. 1 1 1 2 2
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted in 2006. We also assume that amounts
needed to implement S. 687 will be appropriated for each year
and that outlays will follow historical trends for similar
programs. Implementing the bill would increase spending by the
FTC for enforcing the bill's provisions related to spyware,
subject to the availability of appropriated funds. Based on
information from the agency, CBO estimates that such activities
would cost about $1 million 2006 and about $7 million over the
2006-2010 period.
Enacting S. 687 could increase federal revenues from civil
penalties assessed for violating laws related to spyware and
from increasing penalties assessed for unfair or deceptive
business practices committed during designated emergency
periods. Collections of civil fines are recorded in the budget
as revenues. Based on information provided by the FTC, CBO
estimates that any new collections would be less than $500,000
a year.
Enacting S. 687 also could increase federal revenues as a
result of increasing the maximum civil penalty assessed for
certain unauthorized uses of computers. Collections of criminal
fines are recorded in the budget as revenues, deposited in the
Crime Victims Fund, and spent in subsequent years. Based on
information provided by the FTC, CBO expects that under S. 687
any additional receipts and direct spending would total less
than $500,000 each year.
Estimated impact on state, local, and tribal governments:
S. 687 contains intergovernmental mandates as defined in UMRA,
but CBO estimates that any costs to state, local, or tribal
governments would be insignificant and would fall significantly
below the threshold established in UMRA ($62 million in 2005,
adjusted annually for inflation).
Section 109 would require the Attorney General of a state
who files a civil suit to notify the FTC and would grant the
FTC the right to intervene in such a suit. This requirement on
the officers of a state constitutes a mandate as defined in
UMRA.
Section 11 (b) would preempt state laws that prohibit the
use of certain types of computer software and would establish
penalties for violators. Section 110(b) would prohibit states
from creating civil penalties that specifically reference the
statute. These preemptions and prohibitions, while mandates as
defined in UMRA, are narrow and would specifically preserve
state authority to pursue fraud, trespass, contract, and tort
cases under state law. They also would not prohibit states from
passing similar criminal and civil statutes.
Estimated impact on the private sector: S. 687 would impose
private-sector mandates, as defined in UMRA, on persons who
cause the installation of certain software on computers owned
by another person. Based on information from the industry and
the FTC, CBO expects that the aggregate direct cost to comply
with those mandates would be small and fall below the annual
threshold established by UMRA for private-sector mandates ($123
million in 2005, adjusted annually for inflation).
The bill would impose mandates on persons who cause the
installation of software that can be used to collect
information from or take control of a computer without the
consent of the authorized user. Currently, the FTC is
prosecuting various cases against persons who cause the
unauthorized installation of software on another person's
computer under the unfair or deceptive practices provisions of
the Federal Trade Commission Act. The bill would impose new
private-setor mandates on persons to the extent that its
provisions would prohibit activities allowed under current law.
According to the FTC, the requirements contained in this bill
represent only marginal changes to current law, if any. Based
on information from the industry and the FTC, CBO expects that
the aggregate direct cost to comply with any incremental
requirements in the bill would be small and fall below UMRA's
annual threshold for private-sector mandates.
Estimate prepared by: Federal costs: Melissa Z. Petersen;
impact on state, local, and tribal governments: Sarah Pauro;
impact on the private sector: Paige Piper/Bach.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
S. 687 would establish Federal regulations for certain
practices that may result in spyware, adware, or other types of
unwanted software being placed or hidden on consumers'
computers without their knowledge or consent. The bill would,
therefore, cover persons or entities that cause the
installation of such software in a proscribed manner on
consumers' computers, subject to certain limitations set forth
in the legislation.
ECONOMIC IMPACT
S. 687 would require software distributors, websites, and
other online entities involved in the distribution, download,
installation, operation, or removal of software programs, or in
the delivery of advertisements through adware programs, to
comply with the consumer safeguards set forth. Many companies
already may refrain from the practices prohibited by the
legislation or voluntarily provide protections for consumers
that would be sufficient to avoid potential liability. Overall,
the reduction of spyware should have a positive impact on
consumer confidence and electronic commerce. The legislation
could create compliance costs for some companies in the form of
software upgrades or personnel additions in order to ensure
that their practices satisfy the new Federal requirements. Such
expenditures may have an economic impact on such businesses,
which could be passed on to consumers.
PRIVACY
S. 687 likely would increase consumer privacy by imposing
limitations on the installation of software that may
surreptitiously collect and transmit sensitive personal
information or personally identifiable information.
PAPERWORK
S. 687 is expected to have minimal or no impact on current
paperwork levels.
Section-by-Section Analysis
TITLE I--SPYWARE
Section 101. Short title
Section 101 would set forth the short title for the bill as
the ``Software Principles Yielding Better Levels of Consumer
Knowledge Act'' or the ``SPY BLOCK Act''.
Section 102. FTC authority to combat deceptive acts or practices
relating to spyware
Section 102 would clarify that the installation of software
shall be considered an unfair or deceptive act or practice in
violation of section 5 of the FTC Act. It also would make clear
that title I does not limit the range of unfair or deceptive
acts or practices that violate the FTC Act to those acts or
practices that are enumerated in the bill.
Section 103. Prohibited behaviors
Section 103 would prohibit the unauthorized installation of
software that: (1) takes control of a computer, (2) modifies
settings on a computer for various improper purposes, or (3)
evades user efforts to decline installation or disable or
uninstall software.
Specifically, paragraph (1) addresses:
(A) ``zombies'' software that takes control of a
computer connected to a network to transmit or relay
spam or computer viruses from that computer without the
authorization of an authorized user of the computer;
(B) ``modem hijacking'' software that accesses or
uses an authorized user's modem or Internet service for
the purpose of causing either damage or fees to be
incurred;
(C) ``denial of service attacks'' software that uses
multiple computers for the purpose of causing damage to
other computers; and
(D) ``endless loop pop-up advertisement'' software
that opens multiple pop-up advertising windows on a
user's computer without the authorization of the user.
This prohibition would not cover communications
originated by the computer's operating system, by
software the user knowingly chooses to activate, by a
service the user chooses to activate, or for any of the
purposes addressed in section 106.
Specifically, paragraph (2) addresses:
(A) ``enabling identity theft'' by modifying the
security or other settings related to access or use of
the Internet that protect information about the
authorized user;
(B) ``disabling security'' by modifying the security
settings of a networked computer for the purpose of
causing damage to the computer or another computer; and
(C) ``browser settings'' by modifying the authorized
user's home page, default Internet access or search
provider, search bookmarks, or web proxy through which
the authorized user's Internet traffic flows.
Specifically, paragraph (3) addresses:
(A) ``falsifying option to decline installs'' by
preventing, without permission of the authorized user,
a user's reasonable efforts to prevent installation of,
disable, or uninstall software; and
(B) ``evading uninstalls by unfair or deceptive
means'' by misrepresenting that the software has been
removed or creating obstacles to the removal of the
software.
Section 104. Installing personal information collection features on a
user's computer
Subsection (a) would prohibit causing the installation on a
user's computer of software that collects sensitive personal
information without first providing clear and conspicuous
disclosure to the user and obtaining the user's consent. It
would require disclosure and consent to extract from the
computer an authorized user's social security number, tax
identification number, driver's license number, passport
number, other government-issued identification number, as well
as financial account or credit or debit card number, account
balance or overdraft history or other sensitive personal
information. It is not the Committee's intent that disclosure
and consent be required each time that such a piece of data is
collected so long as disclosure and consent to such an ongoing
practice is provided and is consistent with such disclosure and
the consumer's reasonable expectations.
Subsection (b) would prohibit causing the installation of
four types of software that collect personally identifiable
information if they are installed without providing clear and
conspicuous notice to the user or without the knowledge of the
user and for a purpose unrelated to any of the purposes of the
software or service described to the user. Subsection (b)(1)
addresses keystroke logging functions that record all or
substantially all of the keystrokes made on the computer.
Subsection (b)(2) addresses surreptitiously installing a
software program that collects a history of all or
substantially all of the websites the user visits and
correlates it with personally identifiable information.
Subsection (b)(3) addresses extracting from the computer's
storage medium the substantive contents of files, data,
software or other information that an authorized user has
knowingly saved or installed and extracting from the computer's
storage medium the substantive contents of communications sent
from the computer to other computers. This would not include
``data that provide a purely technical function''.
Subsection (c) would provide an exemption permitting the
installation of software that collects information for the
provider of an online service or website that the user
knowingly has used or subscribed to if the information is used
only to affect the user's experience while using the online
service or website.
Subsection (d)(1) would prohibit causing the installation of
software that performs any of the functions described in
subsections (a) or (b) if the software cannot be uninstalled or
disabled through a program removal function that is usual and
customary with the computer's operating system. Subsection
(d)(2) would exempt programs that allow one authorized user of
a computer to prevent other authorized users from uninstalling
or disabling the program, provided that at least one authorized
user (such as a system administrator or parent) retains the
ability to uninstall or disable the program. This subsection
also would make clear that the uninstall requirement does not
require that the user be able separately to uninstall different
features or functions, upgrades, or elements of a software or
software/hardware bundle.
Section 105. Adware that conceals its operation
Subsection (a) would prohibit causing the installation of
software that triggers advertising windows to appear on a
user's computer regardless of whether any other functionality
of the software is activated by the user or conspicuously
active on the computer unless the software complies with
subsection (b).
Subsection (b) would provide an exception to the prohibition
in subsection (a) if a clear and conspicuous label identifying
to the user which software is responsible for the ads' delivery
and a clear and conspicuous hypertext link to instructions
regarding how to uninstall the adware program are present.
Subsection (c) would clarify that the labeling requirements
of this section do not apply to advertising software that
displays ads only when the user accesses a particular website
or service that either: (1) is owned or operated by the author
or publisher of the software or (2) the owner or operator has
authorized the display of the ads.
Section 106. Limitations on liability
Subsection (a) would ensure that monitoring or interaction,
by means of a software program, with a subscriber's computer or
network connection or service by or at the direction of a
telecommunications carrier, cable operator, provider of
computer hardware or software, financial institution, provider
of an information service, or of an interactive computer
service would be exempt from the restrictions in sections 103,
104, and 105 of the Act if performed for: (1) network of
computer security, (2) diagnostics, (3) technical support, (4)
repair, (5) network management, (6) authorized updates, (7)
authorized remote system management, (8) authorized protection
of users from objectionable content, (9) authorized scanning
for software used in violation of sections 103, 104, or 105 for
removal by an authorized user, or (10) preventing or detecting
unauthorized use of software, fraudulent, or other unlawful
activities.
Subsection (b) would exempt manufacturers and retailers of
computers from potential liability for causing the installation
of pre-installed, third-party branded software unless the
manufacturer or retailer uses the software to collect
information about a user or his or her use of the computer, or
knows that the software will display advertisements of the
manufacturer or retailer, or derives a direct financial benefit
from other advertisements displayed on the computer.
Subsection (c) would clarify that nothing in title I
prohibits lawful investigative, protective or intelligence
activity--for example, placing a keystroke logging program on
the computer of a person who is the target of a law enforcement
investigation, where permitted by law.
Subsection (d) would clarify that it is not a violation of
title I for a multichannel video programming distributor to use
a navigation device to provide service, or to collect or
disclose subscriber information if such practices are covered
by the Communications Act of 1934.
Section 107. FTC Administration and enforcement
Subsection (a) would provide that the Act would be enforced
by the FTC as if the violation of this Act were an unfair or
deceptive act or practice proscribed by an FTC trade rule or
regulation pursuant to the Commission's authority under section
18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C.
57a(a)(1)(B)), except as provided in sections 108, 109, and 110
of the Act.
Subsection (b) would permit the FTC to obtain up to treble
the penalties authorized under section 5 of the FTC Act and to
seek a civil penalty for a pattern or practice of activity
violating this Act of not more than $3 million for each
violation.
Subsections (c) and (d) would give the Commission authority
to seek seizure and forfeiture of the assets of a violator
attributable to a violation of title I, and to require
disgorgement of ill-gotten gains procured through unfair or
deceptive acts or practices in violation of title I.
Subsection (e) would charge the FTC with enforcing this Act
as it would the Federal Trade Commission Act and clarify that
this Act does not limit the FTC's existing authority.
Section 108. Enforcement by other agencies
This section would provide for enforcement by other agencies
for entities subject to their jurisdiction due to the
jurisdictional limitations of the FTC. These agencies would be
permitted under the Act to exercise authority provided by their
own statutory grants to enforce the substantive provisions of
this legislation.
Section 109. State enforcement
Subsection (a) would provide State attorneys general the
right to bring a civil action for violations of title I. A
State may bring an action in parens patriae for aggrieved
residents of the State in a district court of the United States
of appropriate jurisdiction to enjoin practices, enforce
compliance with a rule that has been violated, obtain damages,
restitution or other compensation on behalf of its residents,
or obtain such other relief as the court may consider
appropriate.
Except where an attorney general determines that it is not
feasible prior to the filing of an action, subsection (b) would
require a State to provide the FTC with written notice of the
action and a copy of the complaint for that action prior to its
filing. In the event such prior notification is not feasible,
the State would be required to provide such notification
simultaneously with the filing of the action. Upon receipt of
the notice, the FTC would have the right to intervene in the
action, and if it intervenes, would have the further right to
be heard with respect to any matter that arises in that action
and to file a petition for appeal.
Section 110. Other enforcement
Subsection (a) would provide a civil right of action for
telecommunications carriers who incur costs as a result of
modem-hijacking. The carrier could recover the charges it is
obligated to pay other carriers or information service
providers as a result of the violation, the costs of handling
customer inquiries or complaints, costs and reasonable
attorney's fees and an order to enjoin the violation.
Subsection (b) would preclude any person from bringing a
lawsuit under State or local law--such as a State unfair or
deceptive trade practice statute that provides for a private
right of action for violations of Federal law--premised in
whole or in part upon the defendant's violating this Act.
Section 111. Effect on other laws
Subsection (a) would clarify that nothing in the Act should
be construed to limit or affect in any way the FTC's authority
to bring enforcement actions or take any other measures under
the FTC Act or any other provision of law.
Subsection (b) would provide a general rule preempting any
statute, regulation, or rule of a State or political
subdivision that relates to or confers a remedy for (1) the
installation or use of software to deliver advertisements to a
protected computer, (2) the installation or use of software to
collect information about a user of a protected computer, or
the user's use of that computer, (3) the installation or use of
software to allow a person other than an authorized user to
direct or control a protected computer, or (4) the method or
way of uninstalling or disabling software that performs any of
the three functions described above.
Subsection (c) would provide that title I does not preempt
actions or remedies based upon a State's generally applicable
common law or any provision of generally applicable State
consumer protection law.
Section 112. Definitions
Section 112 would define ``advertising window'', ``authorized
user'', ``bundle'', ``cause the installation'', ``commission'',
``cookie'', ``damage'', ``install'', ``loss'', ``person'',
``protected computer'', ``personally identifying information'',
``sensitive personal information'', ``software'' and ``unfair
or deceptive act or practice''.
Section 113. Criminal penalties for certain unauthorized activities
relating to computers
Section 113 would provide criminal liability for certain acts
carried out using software without the authorization of the
user of the computer. This section would make it a crime to
intentionally access a computer without authorization, or
intentionally exceed authorized access, by causing a computer
program or code to be copied onto the computer and using that
program or code in furtherance of another Federal criminal
offense. Such conduct would be punishable by fine or
imprisonment for up to five years or both. Additionally, this
section would make it a crime to intentionally access a
computer without authorization, or intentionally exceed
authorized access, by causing a computer program or code to be
copied onto the computer and using that program or code to
intentionally impair the security protections of a computer.
Such conduct would be punishable by fine or imprisonment for up
to two years or both.
Section 113 would provide an exemption from criminal
liability for individuals and network providers under certain
circumstances.
Section 114. Effective date
Section 114 would provide that the provisions of title I
would take effect 180 days after the date of enactment.
TITLE II--INCREASE IN CERTAIN PENALTIES
Section 201. Increase in penalties for unfair or deceptive
act or practices exploiting reaction to certain emergencies and
major disasters.
Subsection (a) would double the civil penalty for engaging in
an unfair or deceptive act or practice in violation of section
5 of the Federal Trade Commission Act committed during national
emergency period, international disaster or disaster period.
Subsection (b) would provide for a penalty of up to $22,000
for each violation of section 13 of the Federal Trade
Commission Act committed during national emergency,
international disaster or disaster period.
``National emergency period'' describes the a one year period
beginning with the President declaring a national emergency
under the National Emergencies Act.
``Disaster period'' describes the one year period beginning
with the President declaring an emergency or major disaster
under the Robert T. Stafford Disaster Relief and Emergency
Assistance Act.
``International Disaster'' describes any natural or man-made
disaster in which the President furnishes assistance to a
foreign country, international organization or private
voluntary organization pursuant to the Foreign Assistance Act.
Rollcall Votes in Committee
In accordance with paragraph 7(c) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following description of the record votes during its
consideration of S. 687:
Senator Burns offered an amendment in the nature of a
substitute. By rollcall vote of 14 yeas and 8 nays as follows,
the amendment was adopted:
YEAS--14 NAYS--8
Mr. Burns Mr. McCain\1\
Mr. Lott\1\ Mr. Smith
Mrs. Hutchison Mr. Ensign
Ms. Snowe\1\ Mr. Allen
Mr. Inouye Mr. Sununu
Mr. Rockefeller\1\ Mr. DeMint
Mr. Kerry\1\ Mr. Vitter\1\
Mr. Dorgan\1\ Mr. Nelson of Nebraska
Mrs. Boxer\1\
Mr. Nelson of Florida
Ms. Cantwell
Mr. Lautenberg\1\
Mr. Pryor
Mr. Stevens
\1\By proxy
Senator Allen offered an amendment in the nature of a
substitute to substitute the text of S. 1004. By rollcall vote
of 9 yeas and 13 nays as follows, the amendment was defeated:
YEAS--9 NAYS--13
Mr. McCain\1\ Mr. Burns
Mr. Smith Mr. Lott\1\
Mr. Ensign Mrs. Hutchison
Mr. Allen Ms. Snowe
Mr. Sununu Mr. Inouye
Mr. DeMint Mr. Rockefeller\1\
Mr. Vitter\1\ Mr. Kerry\1\
Ms. Cantwell Mr. Dorgan\1\
Mr. Nelson of Nebraska Mrs. Boxer\1\
Mr. Nelson of Florida
Mr. Lautenberg\1\
Mr. Pryor
Mr. Stevens
\1\By proxy
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new material is printed
in italic, existing law in which no change is proposed is shown
in roman):
FEDERAL TRADE COMMISSION ACT
SEC. 5. UNFAIR METHODS OF COMPETITION UNLAWFUL; PREVENTION BY
COMMISSION.
[15 U.S.C. 45]
(a) Declaration of unlawfulness; power to prohibit unfair
practices; inapplicability to foreign trade.--
(1) Unfair methods of competition in or affecting
commerce, and unfair or deceptive acts or practices in
or affecting commerce, are hereby declared unlawful.
(2) The Commission is hereby empowered and directed
to prevent persons, partnerships, or corporations,
except banks, savings and loan institutions described
in section 18(f)(3), Federal credit unions described in
section 18(f)(4), common carriers subject to the Acts
to regulate commerce, air carriers and foreign air
carriers subject to the Federal Aviation Act of 1958,
and persons, partnerships, or corporations insofar as
they are subject to the Packers and Stockyards Act,
1921, as amended, except as provided in section 406(b)
of said Act, from using unfair methods of competition
in or affecting commerce and unfair or deceptive acts
or practices in or affecting commerce.
(3) This subsection shall not apply to unfair methods
of competition involving commerce with foreign nations
(other than import commerce) unless--
(A) such methods of competition have a
direct, substantial, and reasonably foreseeable
effect--
(i) on commerce which is not commerce
with foreign nations, or on import
commerce with foreign nations; or
(ii) on export commerce with foreign
nations, of a person engaged in such
commerce in the United States; and
(B) such effect gives rise to a claim under
the provisions of this subsection, other than
this paragraph. If this subsection applies to
such methods of competition only because of the
operation of subparagraph (A)(ii), this
subsection shall apply to such conduct only for
injury to export business in the United States.
(b) Proceeding by Commission; modifying and setting aside
orders.-- Whenever the Commission shall have reason to believe
that any such person, partnership, or corporation has been or
is using any unfair method of competition or unfair or
deceptive act or practice in or affecting commerce, and if it
shall appear to the Commission that a proceeding by it in
respect thereof would be to the interest of the public, it
shall issue and serve upon such person, partnership, or
corporation a complaint stating its charges in that respect and
containing a notice of a hearing upon a day and at a place
therein fixed at least thirty days after the service of said
complaint. The person, partnership, or corporation so
complained of shall have the right to appear at the place and
time so fixed and show cause why an order should not be entered
by the Commission requiring such person, partnership, or
corporation to cease and desist from the violation of the law
so charged in said complaint. Any person, partnership, or
corporation may make application, and upon good cause shown may
be allowed by the Commission to intervene and appear in said
proceeding by counsel or in person. The testimony in any such
proceeding shall be reduced to writing and filed in the office
of the Commission. If upon such hearing the Commission shall be
of the opinion that the method of competition or the act or
practice in question is prohibited by this Act, it shall make a
report in writing in which it shall state its findings as to
the facts and shall issue and cause to be served on such
person, partnership, or corporation an order requiring such
person, partnership, or corporation to cease and desist from
using such method of competition or such act or practice. Until
the expiration of the time allowed for filing a petition for
review, if no such petition has been duly filed within such
time, or, if a petition for review has been filed within such
time then until the record in the proceeding has been filed in
a court of appeals of the United States, as hereinafter
provided, the Commission may at any time, upon such notice and
in such manner as it shall deem proper, modify or set aside, in
whole or in part, any report or any order made or issued by it
under this section. After the expiration of the time allowed
for filing a petition for review, if no such petition has been
duly filed within such time, the Commission may at any time,
after notice and opportunity for hearing, reopen and alter,
modify, or set aside, in whole or in part, any report or order
made or issued by it under this section, whenever in the
opinion of the Commission conditions of fact or of law have so
changed as to require such action or if the public interest
shall so require, except that--
(1) the said person, partnership, or corporation may,
within sixty days after the service upon him or it of
said report or order entered after such a reopening,
obtain a review thereof in the appropriate court of
appeals of the United States, in the manner provided in
subsection (c) of this section; and
(2) in the case of an order, the Commission shall
reopen any such order to consider whether such order
(including any affirmative relief provision contained
in such order) should be altered, modified, or set
aside, in whole or in part, if the person, partnership,
or corporation involved files a request with the
Commission which makes a satisfactory showing that
changed conditions of law or fact require such order to
be altered, modified, or set aside, in whole or in
part. The Commission shall determine whether to alter,
modify, or set aside any order of the Commission in
response to a request made by a person, partnership, or
corporation under paragraph (2) not later than 120 days
after the date of the filing of such request.
(c) Review of order; rehearing.--Any person, partnership, or
corporation required by an order of the Commission to cease and
desist from using any method of competition or act or practice
may obtain a review of such order in the court of appeals of
the United States, within any circuit where the method of
competition or the act or practice in question was used or
where such person, partnership, or corporation resides or
carries on business, by filing in the court, within sixty days
from the date of the service of such order, a written petition
praying that the order of the Commission be set aside. A copy
of such petition shall be forthwith transmitted by the clerk of
the court to the Commission, and thereupon the Commission shall
file in the court the record in the proceeding, as provided in
section 2112 of title 28, United States Code. Upon such filing
of the petition the court shall have jurisdiction of the
proceeding and of the question determined therein concurrently
with the Commission until the filing of the record and shall
have power to make and enter a decree affirming, modifying, or
setting aside the order of the Commission, and enforcing the
same to the extent that such order is affirmed and to issue
such writs as are ancillary to its jurisdiction or are
necessary in its judgment to prevent injury to the public or to
competitors pendente lite. The findings of the Commission as to
the facts, if supported by evidence, shall be conclusive. To
the extent that the order of the Commission is affirmed, the
court shall thereupon issue its own order commanding obedience
to the terms of such order of the Commission. If either party
shall apply to the court for leave to adduce additional
evidence, and shall show to the satisfaction of the court that
such additional evidence is material and that there were
reasonable grounds for the failure to adduce such evidence in
the proceeding before the Commission, the court may order such
additional evidence to be taken before the Commission and to be
adduced upon the hearing in such manner and upon such terms and
conditions as to the court may seem proper. The Commission may
modify its findings as to the facts, or make new findings, by
reason of the additional evidence so taken, and it shall file
such modified or new findings, which, if supported by evidence,
shall be conclusive, and its recommendation, if any, for the
modification or setting aside of its original order, with the
return of such additional evidence. The judgment and decree of
the court shall be final, except that the same shall be subject
to review by the Supreme Court upon certiorari, as provided in
section 240 of the Judicial Code (28 U.S.C. 1254).
(d) Jurisdiction of court.--Upon the filing of the record
with it the jurisdiction of the court of appeals of the United
States to affirm, enforce, modify, or set aside orders of the
Commission shall be exclusive.
(e) Extension from liability.--No order of the Commission or
judgment of court to enforce the same shall in anywise relieve
or absolve any person, partnership, or corporation from any
liability under the Antitrust Acts.
(f) Service of complaints, orders and other processes;
return.--Complaints, orders, and other processes of the
Commission under this section may be served by anyone duly
authorized by the Commission, either (a) by delivering a copy
thereof to the person to be served, or to a member of the
partnership to be served, or the president, secretary, or other
executive officer or a director of the corporation to be
served; or (b) by leaving a copy thereof at the residence or
the principal office or place of business of such person,
partnership, or corporation; or by mailing a copy thereof by
registered mail or by certified mail addressed to such person,
partnership, or corporation at his or its residence or
principal office or place of business. The verified return by
the person so serving said complaint, order, or other process
setting forth the manner of said service shall be proof of the
same, and the return post office receipt for said complaint,
order, or other process mailed by registered mail or by
certified mail as aforesaid shall be proof of the service of
the same.
(g) Finality of order.--An order of the Commission to cease
and desist shall become final--
(1) Upon the expiration of the time allowed for
filing a petition for review, if no such petition has
been duly filed within such time; but the Commission
may thereafter modify or set aside its order to the
extent provided in the last sentence of subsection (b).
(2) Except as to any order provision subject to
paragraph (4), upon the sixtieth day after such order
is served, if a petition for review has been duly
filed; except that any such order may be stayed, in
whole or in part and subject to such conditions as may
be appropriate, by--
(A) the Commission;
(B) an appropriate court of appeals of the
United States, if
(i) a petition for review of such
order is pending in such court, and
(ii) an application for such a stay
was previously submitted to the
Commission and the Commission, within
the 30-day period beginning on the date
the application was received by the
Commission, either denied the
application or did not grant or deny
the application; or
(C) the Supreme Court, if an applicable
petition for certiorari is pending.
(3) For purposes of subsection (m)(1)(B) and of
section 19(a)(2) (15 U.S.C. 57b(a)(2)), if a petition
for review of the order of the Commission has been
filed--
(A) upon the expiration of the time allowed
for filing a petition for certiorari, if the
order of the Commission has been affirmed or
the petition for review has been dismissed by
the court of appeals and no petition for
certiorari has been duly filed;
(B) upon the denial of a petition for
certiorari, if the order of the Commission has
been affirmed or the petition for review has
been dismissed by the court of appeals; or
(C) upon the expiration of 30 days from the
date of issuance of a mandate of the Supreme
Court directing that the order of the
Commission be affirmed or the petition for
review be dismissed.
(4) In the case of an order provision requiring a
person, partnership, or corporation to divest itself of
stock, other share capital, or assets, if a petition
for review of such order of the Commission has been
filed--
(A) upon the expiration of the time allowed
for filing a petition for certiorari, if the
order of the Commission has been affirmed or
the petition for review has been dismissed by
the court of appeals and no petition for
certiorari has been duly filed;
(B) upon the denial of a petition for
certiorari, if the order of the Commission has
been affirmed or the petition for review has
been dismissed by the court of appeals; or
(C) upon the expiration of 30 days from the
date of issuance of a mandate of the Supreme
Court directing that the order of the
Commission be affirmed or the petition for
review be dismissed.
(h) Modification or setting aside of order by Supreme
Court.--If the Supreme Court directs that the order of the
Commission be modified or set aside, the order of the
Commission rendered in accordance with the mandate of the
Supreme Court shall become final upon the expiration of thirty
days from the time it was rendered, unless within such thirty
days either party has instituted proceedings to have such order
corrected to accord with the mandate, in which event the order
of the Commission shall become final when so corrected.
(i) Modification or setting aside of order by Court of
Appeals.--If the order of the Commission is modified or set
aside by the court of appeals, and if (1) the time allowed for
filing a petition for certiorari has expired and no such
petition has been duly filed, or (2) the petition for
certiorari has been denied, or (3) the decision of the court
has been affirmed by the Supreme Court, then the order of the
Commission rendered in accordance with the mandate of the court
of appeals shall become final on the expiration of thirty days
from the time such order of the Commission was rendered, unless
within such thirty days either party has instituted proceedings
to have such order corrected so that it will accord with the
mandate, in which event the order of the Commission shall
become final when so corrected.
(j) Rehearing upon order or remand.--If the Supreme Court
orders a rehearing; or if the case is remanded by the court of
appeals to the Commission for a rehearing, and if (1) the time
allowed for filing a petition for certiorari has expired, and
no such petition has been duly filed, or (2) the petition for
certiorari has been denied, or (3) the decision of the court
has been affirmed by the Supreme Court, then the order of the
Commission rendered upon such rehearing shall become final in
the same manner as though no prior order of the Commission had
been rendered.
(k) ``Mandate'' defined.--As used in this section the term
``mandate,'' in case a mandate has been recalled prior to the
expiration of thirty days from the date of issuance thereof,
means the final mandate.
(l) Penalty for violation of order; injunctions and other
appropriate equitable relief.--Any person, partnership, or
corporation who violates an order of the Commission after it
has become final, and while such order is in effect, shall
forfeit and pay to the United States a civil penalty of not
more than $10,000 for each violation, which shall accrue to the
United States and may be recovered in a civil action brought by
the Attorney General of the United States. Each separate
violation of such an order shall be a separate offense, except
that in the case of a violation through continuing failure to
obey or neglect to obey a final order of the Commission, each
day of continuance of such failure or neglect shall be deemed a
separate offense. In such actions, the United States district
courts are empowered to grant mandatory injunctions and such
other and further equitable relief as they deem appropriate in
the enforcement of such final orders of the Commission.
(m) Civil actions for recovery of penalties for knowing
violations of rules and cease and desist orders respecting
unfair or deceptive acts or practices; jurisdiction; maximum
amount of penalties; continuing violations; de novo
determinations; compromise or settlement procedure.--
(1)(A) The Commission may commence a civil action to
recover a civil penalty in a district court of the
United States against any person, partnership, or
corporation which violates any rule under this Act
respecting unfair or deceptive acts or practices (other
than an interpretive rule or a rule violation of which
the Commission has provided is not an unfair or
deceptive act or practice in violation of subsection
(a)(1)) with actual knowledge or knowledge fairly
implied on the basis of objective circumstances that
such act is unfair or deceptive and is prohibited by
such rule. In such action, such person, partnership, or
corporation shall be liable for a civil penalty of not
more than $10,000 for each violation.
(B) If the Commission determines in a proceeding
under subsection (b) that any act or practice is unfair
or deceptive, and issues a final cease and desist
order, other than a consent order, with respect to such
act or practice, then the Commission may commence a
civil action to obtain a civil penalty in a district
court of the United States against any person,
partnership, or corporation which engages in such act
or practice--
(1) after such cease and desist order becomes
final (whether or not such person, partnership,
or corporation was subject to such cease and
desist order), and
(2) with actual knowledge that such act or
practice is unfair or deceptive and is unlawful
under subsection (a)(1) of this section.
In such action, such person, partnership, or
corporation shall be liable for a civil penalty of not
more than $10,000 for each violation.
(C) In the case of a violation through continuing
failure to comply with a rule or with section 5(a)(1),
each day of continuance of such failure shall be
treated as a separate violation, for purposes of
subparagraphs (A) and (B). In determining the amount of
such a civil penalty, 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.
(D) In the case of a violation involving an unfair or
deceptive act or practice in a national emergency period or
disaster period, or relating to an international disaster, the
amount of the civil penalty under this paragraph shall be
double the amount otherwise provided in this paragraph, if the
act or practice exploits popular reaction to the national
emergency or major disaster that is the basis for such period,
or to the international disaster.
(E) In this paragraph:
(i) The term ``national emergency period'' means the
period that--
(I) begins on the date the President declares
a national emergency under the National
Emergencies Act (50 U.S.C. 1601 et seq.); and
(II) ends on the expiration of the 1-year
period beginning on the date of the termination
of the national emergency.
(ii) The term ``disaster period'' means the 1-year
period beginning on the date the President declares an
emergency or major disaster under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act
(42 U.S.C. 5121 et seq.).
(iii) The term ``international disaster'' means any
natural or man-made disaster in response to which the
President furnishes assistance to any foreign country,
international organization, or private voluntary
organization pursuant to section 491 of the Foreign
Assistance Act (22 U.S.C. 2292(b)).
(2) If the cease and desist order establishing that
the act or practice is unfair or deceptive was not
issued against the defendant in a civil penalty action
under paragraph (1)(B) the issues of fact in such
action against such defendant shall be tried de novo.
Upon request of any party to such an action against
such defendant, the court shall also review the
determination of law made by the Commission in the
proceeding under subsection (b) that the act or
practice which was the subject of such proceeding
constituted an unfair or deceptive act or practice in
violation of subsection (a).
(3) The Commission may compromise or settle any
action for a civil penalty if such compromise or
settlement is accompanied by a public statement of its
reasons and is approved by the court.
(n) Definition of unfair acts or practices.--The Commission
shall have no authority under this section or section 18 to
declare unlawful an act or practice on the grounds that such
act or practice is unfair unless the act or practice causes or
is likely to cause substantial injury to consumers which is not
reasonably avoidable by consumers themselves and not outweighed
by countervailing benefits to consumers or to competition. In
determining whether an act or practice is unfair, the
Commission may consider established public policies as evidence
to be considered with all other evidence. Such public policy
considerations may not serve as a primary basis for such
determination.
FEDERAL TRADE COMMISSION ACT
SEC. 13. FALSE ADVERTISEMENTS; INJUNCTIONS AND RESTRAINING ORDERS.
[15 U.S.C. 53]
(a) Power of Commission; jurisdiction of courts.--Whenever
the Commission has reason to believe--
(1) that any person, partnership, or corporation is
engaged in, or is about to engage in, the dissemination
or the causing of the dissemination of any
advertisement in violation of section 12, and
(2) that the enjoining thereof pending the issuance
of a complaint by the Commission under section 5, and
until such complaint is dismissed by the Commission or
set aside by the court on review, or the order of the
Commission to cease and desist made thereon has become
final within the meaning of section 5, would be to the
interest of the public,
the Commission by any of its attorneys designated by it for
such purpose may bring suit in a district court of the United
States or in the United States court of any Territory, to
enjoin the dissemination or the causing of the dissemination of
such advertisement. Upon proper showing a temporary injunction
or restraining order shall be granted without bond. Any suit
may be brought where such person, partnership, or corporation
resides or transacts business, or wherever venue is proper
under section 1391 of title 28, United States Code. In
addition, the court may, if the court determines that the
interests of justice require that any other person,
partnership, or corporation should be a party in such suit,
cause such other person, partnership, or corporation to be
added as a party without regard to whether venue is otherwise
proper in the district in which the suit is brought. In any
suit under this section, process may be served on any person,
partnership, or corporation wherever it may be found.
(b) Temporary restraining orders; preliminary injunctions.--
Whenever the Commission has reason to believe
(1) that any person, partnership, or corporation is
violating, or is about to violate, any provision of law
enforced by the Federal Trade Commission, and
(2) that the enjoining thereof pending the issuance
of a complaint by the Commission and until such
complaint is dismissed by the Commission or set aside
by the court on review, or until the order of the
Commission made thereon has become final, would be in
the interest of the public
the Commission by any of its attorneys designated by it for
such purpose may bring suit in a district court of the United
States to enjoin any such act or practice. Upon a proper
showing that, weighing the equities and considering the
Commission's likelihood of ultimate success, such action would
be in the public interest, and after notice to the defendant, a
temporary restraining order or a preliminary injunction may be
granted without bond: Provided, however, That if a complaint is
not filed within such period (not exceeding 20 days) as may be
specified by the court after issuance of the temporary
restraining order or preliminary injunction, the order or
injunction shall be dissolved by the court and be of no further
force and effect: Provided further, That in proper cases the
Commission may seek, and after proper proof, the court may
issue, a permanent injunction. Any suit may be brought where
such person, partnership, or corporation resides or transacts
business, or wherever venue is proper under section 1391 of
title 28, United States Code. In addition, the court may, if
the court determines that the interests of justice require that
any other person, partnership, or corporation should be a party
in such suit, cause such other person, partnership, or
corporation to be added as a party without regard to whether
venue is otherwise proper in the district in which the suit is
brought. In any suit under this section, process may be served
on any person, partnership, or corporation wherever it may be
found.
(c) Service of process of the Commission; proof of service.--
Any process of the Commission under this section may be served
by any person duly authorized by the Commission--
(1) by delivering a copy of such process to the
person to be served, to a member of the partnership to
be served, or to the president, secretary, or other
executive officer or a director of the corporation to
be served;
(2) by leaving a copy of such process at the
residence or the principal office or place of business
of such person, partnership, or corporation; or
(3) by mailing a copy of such process by registered
mail or certified mail addressed to such person,
partnership, or corporation at his, or her, or its
residence, principal office, or principal place or
business. The verified return by the person serving
such process setting forth the manner of such service
shall be proof of the same.
(d) Exception of periodical publications.--Whenever it
appears to the satisfaction of the court in the case of a
newspaper, magazine, periodical, or other publication,
published at regular intervals--
(1) that restraining the dissemination of a false
advertisement in any particular issue of such
publication would delay the delivery of such issue
after the regular time therefor, and
(2) that such delay would be due to the method by
which the manufacture and distribution of such
publication is customarily conducted by the publisher
in accordance with sound business practice, and not to
any method or device adopted for the evasion of this
section or to prevent or delay the issuance of an
injunction or restraining order with respect to such
false advertisement or any other advertisement,
the court shall exclude such issue from the operation of the
restraining order or injunction.
(e) National Emergency or Disaster Period.--
(1) In general.--If a person, partnership, or
corporation is found, in an action under subsection
(b), to have committed a violation involving an unfair
or deceptive act or practice in a national emergency
period or a disaster period, or relating to an
international disaster, and if the act or practice
exploits popular reaction to the national emergency or
major disaster that is the basis for such period, or to
the international disaster, the court, after awarding
equitable relief (if any) under any other authority of
the court, shall hold the person, partnership, or
corporation liable for a civil penalty of not more than
$22,000 for each such violation.
(2) Definitions.--In this subsection:
(A) National emergency period.--The term
``national emergency period'' means the period
that--
(i) begins on the date the President
declares a national emergency under the
National Emergencies Act (50 U.S.C.
1601 et seq.); and
(ii) ends on the expiration of the 1-
year period beginning on the date of
the termination of the national
emergency.
(B) Disaster period.--The term ``disaster
period'' means the 1-year period beginning on
the date the President declares an emergency or
major disaster under the Robert T. Stafford
Disaster Relief and Emergency Assistance Act
(42 U.S.C. 5121 et seq.).
(C) International disaster.--The term
``international disaster'' means any natural or
man-made disaster in response to which the
President furnishes assistance to any foreign
country, international organization, or private
voluntary organization pursuant to section 491
of the Foreign Assistance Act (22 U.S.C.
2292(b)).
TITLE 18, UNITED STATES CODE
CHAPTER 47. FRAUD AND FALSE STATEMENTS
Sec. 1030A. Illicit indirect use of protected computers
(a) Furtherance of Criminal Offense.--Whoever intentionally
accesses a protected computer without authorization, or exceeds
authorized access to a protected computer, by causing a
computer program or code to be copied onto the protected
computer, and intentionally uses that program or code in
furtherance of another Federal criminal offense shall be fined
under this title or imprisoned not more than 5 years, or both.
(b) Security Protection.--Whoever intentionally accesses a
protected computer without authorization, or exceeds authorized
access to a protected computer, by causing a computer program
or code to be copied onto the protected computer, and by means
of that program or code intentionally impairs the security
protection of the protected computer shall be fined under this
title or imprisoned not more than 2 years, or both.
(c) Individual Exemption.--A person shall not violate this
section who solely provides--
(1) an Internet connection, telephone connection, or
other transmission or routing function through which
software is delivered to a protected computer for
installation;
(2) the storage or hosting of software, or of an
Internet website, through which software is made
available for installation to a protected computer; or
(3) an information location tool, such as a
directory, index, reference, pointer, or hypertext
link, through which a user of a protected computer
locates software available for installation.
(d) Network Exemption.--A provider of a network or online
service that an authorized user of a protected computer uses or
subscribes to shall not violate this section by any monitoring
or, interaction with, or installation of software for the
purpose of--
(1) protecting the security of the network, service,
or computer;
(2) facilitating diagnostics, technical support,
maintenance, network management, or repair; or
(3) preventing or detecting unauthorized, fraudulent,
or otherwise unlawful uses of the network or service.
(e) Definitions.--In this section:
(1) Computer; protected computer.--The terms
``computer'' and ``protected computer'' have the
meanings given such terms in section 1030(e) of this
title.
(2) State.--The term ``State'' includes each of the
several States, the District of Columbia, Puerto Rico,
and any other territory or possession of the United
States.
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