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By: Zaffirini, Duncan S.B. No. 327
A BILL TO BE ENTITLED
AN ACT
relating to the installation, copying, or use of computer software
for unauthorized purposes; providing a penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 4, Business & Commerce Code, is amended by
adding Chapter 48 to read as follows:
CHAPTER 48. CONSUMER PROTECTION AGAINST COMPUTER SPYWARE ACT
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 48.001. SHORT TITLE. This chapter may be cited as the
Consumer Protection Against Computer Spyware Act.
Sec. 48.002. DEFINITIONS. In this chapter:
(1) "Advertisement" means a communication, the
primary purpose of which is the promotion of a commercial product or
service, including communication on an Internet website operated
for a commercial purpose.
(2) "Computer software" means a sequence of
instructions written in a programming language that is executed on
a computer. The term does not include:
(A) a web page; or
(B) a data component of a web page that cannot be
executed independently of that page.
(3) "Damage," with respect to a computer, means
significant impairment to the integrity or availability of data,
computer software, a system, or information.
(4) "Execute," with respect to computer software,
means to perform a function or carry out instructions.
(5) "Keystroke-logging function" means a function of a
computer software program that records all keystrokes made by a
person using a computer and transfers that information from the
computer to another person.
(6) "Owner or operator of a computer" means the owner
or lessee of a computer or an individual using a computer with the
authorization of the owner or lessee of the computer. If a computer
was sold at retail, the phrase "owner of a computer" does not
include the person who owned the computer before the date on which
the computer was sold.
(7) "Person" means any individual, partnership,
corporation, limited liability company, or other organization, or a
combination of those organizations.
(8) "Personally identifiable information," with
respect to an individual who is the owner or operator of a computer,
means:
(A) first name or first initial in combination
with last name;
(B) a home or other physical address, including
street name;
(C) an electronic mail address;
(D) a credit or debit card number;
(E) a bank account number;
(F) a password or access code associated with a
credit or debit card or bank account;
(G) a social security number, tax identification
number, driver's license number, passport number, or other
government-issued identification number; or
(H) any of the following information if the
information alone or in combination with other information
personally identifies the individual:
(i) account balances;
(ii) overdraft history; or
(iii) payment history.
Sec. 48.003. APPLICABILITY OF CHAPTER. (a) This chapter
does not apply to the transmission of computer software to the
computer of another by a person providing:
(1) the Internet connection, telephone connection, or
other means of transmission capability such as a compact disc or
digital video disc through which the software was made available;
(2) the storage or hosting of the software program or
an Internet web page through which the software was made available;
or
(3) an information location tool, such as a directory,
index, reference pointer, or hypertext link, through which the user
of the computer located the software, unless the person receives a
direct economic benefit from the execution of the software on the
computer.
(b) Section 48.052, other than Subdivision (1) of that
section, and Sections 48.053(4) and 48.055 do not apply to a
telecommunications carrier, cable operator, computer hardware or
software provider, or provider of information service or
interactive computer service that monitors or has interaction with
a subscriber's Internet or other network connection or service or a
protected computer for:
(1) network or computer security purposes;
(2) diagnostics, technical support, or repair
purposes;
(3) authorized updates of computer software or system
firmware;
(4) authorized remote system management; or
(5) detection or prevention of unauthorized use of or
fraudulent or other illegal activities in connection with a
network, service, or computer software, including scanning for and
removing software proscribed under this chapter.
[Sections 48.004-48.050 reserved for expansion]
SUBCHAPTER B. PROHIBITED CONDUCT OR ACTIVITIES
Sec. 48.051. UNAUTHORIZED COLLECTION OR TRANSMISSION OF
PERSONALLY IDENTIFIABLE INFORMATION. If a person is not the owner
or operator of the computer, the person may not knowingly transmit
computer software to a computer in this state and use the software
to:
(1) collect, through intentionally deceptive means:
(A) personally identifiable information by using
a keystroke-logging function; or
(B) personally identifiable information in a
manner that correlates that information with information regarding
all or substantially all of the websites visited by the owner or
operator of the computer, other than websites operated by the
person collecting the information; or
(2) cull, through intentionally deceptive means, the
following kinds of personally identifiable information from the
consumer's computer hard drive for a purpose wholly unrelated to
any of the purposes of the software or service described to an owner
or operator of the computer:
(A) a credit or debit card number;
(B) a bank account number;
(C) a password or access code associated with a
credit or debit card number or a bank account;
(D) a social security number;
(E) account balances; or
(F) overdraft history.
Sec. 48.052. UNAUTHORIZED TRANSMISSIONS OR MODIFICATIONS
OF COMPUTER SETTINGS; COMPUTER DAMAGE. If a person is not the owner
or operator of the computer, the person may not knowingly transmit
computer software to a computer in this state and use the software
to:
(1) modify, through intentionally deceptive means, a
setting that controls:
(A) the page that appears when an Internet
browser or a similar software program is launched to access and
navigate the Internet;
(B) the default provider or web proxy used to
access or search the Internet; or
(C) a list of bookmarks used to access web pages;
(2) take control of the computer by:
(A) accessing or using the computer's modem or
Internet service to:
(i) cause damage to the computer; or
(ii) cause the owner or operator of the
computer to incur financial charges for a service not previously
authorized by the owner or operator; or
(B) opening, without the consent of the owner or
operator of the computer, an advertisement that:
(i) is in the owner's or operator's Internet
browser in a multiple, sequential, or stand-alone form; and
(ii) cannot be closed by an ordinarily
reasonable person using the computer without closing the browser or
shutting down the computer;
(3) modify settings on the computer that relate to
access to or use of the Internet and protection of information for
purposes of stealing personally identifiable information of the
owner or operator of the computer; or
(4) modify security settings on the computer relating
to access to or use of the Internet for purposes of causing damage
to one or more computers.
Sec. 48.053. UNAUTHORIZED INTERFERENCE WITH INSTALLATION
OR DISABLING OF COMPUTER SOFTWARE. If a person is not the owner or
operator of the computer, the person may not knowingly transmit
computer software to a computer in this state and use the software
to:
(1) prevent, through intentionally deceptive means,
reasonable efforts of the owner or operator of the computer to block
the installation or execution of or to disable computer software by
causing computer software that the owner or operator has properly
removed or disabled to automatically reinstall or reactivate on the
computer;
(2) intentionally misrepresent to another that
computer software will be uninstalled or disabled by the actions of
the owner or operator of the computer;
(3) remove, disable, or render inoperative, through
intentionally deceptive means, security, antispyware, or antivirus
computer software installed on the computer; or
(4) prevent the owner's or operator's reasonable
efforts to block the installation of or to disable computer
software by:
(A) presenting the owner or operator with an
option to decline the installation of software knowing that, when
the option is selected, the installation process will continue to
proceed; or
(B) misrepresenting that software has been
disabled.
Sec. 48.054. KNOWING VIOLATION. A person knowingly
violates Section 48.051, 48.052, or 48.053 if the person:
(1) acts with actual knowledge of the facts that
constitute the violation; or
(2) consciously avoids information that would
establish actual knowledge of those facts.
Sec. 48.055. OTHER PROHIBITED CONDUCT. If a person is not
the owner or operator of the computer, the person may not:
(1) induce the owner or operator of a computer in this
state to install a computer software component to the computer by
intentionally misrepresenting the extent to which the installation
is necessary for security or privacy reasons, to open or view text,
or to play a particular type of musical or other content; or
(2) copy and execute or provide for the copying and
execution of a computer software component to a computer in this
state in a deceptive manner with the intent of causing the owner or
operator of the computer to use the component in a manner that
violates this chapter.
Sec. 48.056. DECEPTIVE ACT OR OMISSION. For purposes of
this chapter, a person is considered to have acted through
intentionally deceptive means if the person, with the intent to
deceive an owner or operator of a computer:
(1) intentionally makes a materially false or
fraudulent statement;
(2) intentionally makes a statement or uses a
description that omits or misrepresents material information; or
(3) intentionally and materially fails to provide to
the owner or operator any notice regarding the installation or
execution of computer software.
Sec. 48.057. TRANSMISSION OF COMPUTER SOFTWARE. For
purposes of this chapter, a person is considered to have
transmitted computer software to a computer if the person
transfers, sends, or makes available computer software, or a
component of the software, through:
(1) the Internet;
(2) a local area network of computers;
(3) other non-wire transmission;
(4) a disc or other data storage device; or
(5) any other medium.
[Sections 48.058-48.100 reserved for expansion]
SUBCHAPTER C. CIVIL REMEDIES
Sec. 48.101. CIVIL RELIEF. (a) The following persons may
bring a civil action against a person who violates this chapter:
(1) a provider of computer software who is adversely
affected by the violation;
(2) an owner of a web page or trademark who is
adversely affected by the violation; or
(3) the attorney general.
(b) In addition to any other remedy provided by law, a
person bringing an action under this section may:
(1) seek injunctive relief to restrain the violator
from continuing the violation;
(2) recover damages in an amount equal to the greater
of:
(A) actual damages arising from the violation; or
(B) $100,000 for each violation of the same
nature; or
(3) both seek injunctive relief and recover damages as
provided by this subsection.
(c) The court may increase an award of actual damages in an
action brought under this section to an amount not to exceed three
times the actual damages sustained if the court finds that the
violations have occurred with a frequency as to constitute a
pattern or practice.
(d) A plaintiff who prevails in an action filed under this
section is entitled to recover reasonable attorney's fees and court
costs.
(e) Each separate violation of this chapter is an actionable
violation.
(f) For purposes of this section, violations are of the same
nature if the violations consist of the same course of conduct or
action, regardless of the number of times the conduct or act
occurred.
SECTION 2. This Act takes effect September 1, 2005.