S.B. No. 327
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 that
includes the promotion of a commercial product or service,
including communication on an Internet website operated for a
commercial purpose.
(2) "Cause computer software to be copied" means to
distribute or transfer computer software or a component of computer
software. The term does not include:
(A) the transmission or routing of computer
software or a component of the software;
(B) the provision of intermediate temporary
storage or caching of software;
(C) the provision of a storage medium such as a
compact disk;
(D) a website;
(E) the distribution of computer software by a
third party through a computer server; or
(F) the provision of an information location
tool, such as a directory, index, reference, pointer, or hypertext
link, through which the user of a computer is able to locate
computer software.
(3) "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.
(4) "Damage," with respect to a computer, means
significant impairment to the integrity or availability of data,
computer software, a system, or information.
(5) "Execute," with respect to computer software,
means to perform a function or carry out instructions.
(6) "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.
(7) "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.
(8) "Person" means any individual, partnership,
corporation, limited liability company, or other organization, or a
combination of those organizations.
(9) "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) 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.
(b) This chapter does not apply to:
(1) the use of a navigation device, any interaction
with a navigation device, or the installation or use of computer
software on a navigation device by a multichannel video programming
distributor or video programmer in connection with the provision of
multichannel video programming or other services offered over a
multichannel video programming system if the provision of the
programming or other service is subject to 47 U.S.C. Section 338(i)
or 551; or
(2) the collection or disclosure of subscriber
information by a multichannel video programming distributor or
video programmer in connection with the provision of multichannel
video programming or other services offered over a multichannel
video programming system if the collection or disclosure of the
information is subject to 47 U.S.C. Section 338(i) or 551.
(c) In this section, "multichannel video programming
distributor" has the meaning assigned by 47 U.S.C. Section 522(13).
[Sections 48.004-48.050 reserved for expansion]
SUBCHAPTER B. PROHIBITED CONDUCT OR ACTIVITIES
Sec. 48.051. UNAUTHORIZED COLLECTION OR CULLING OF
PERSONALLY IDENTIFIABLE INFORMATION. If a person is not the owner
or operator of the computer, the person may not knowingly cause
computer software to be copied 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 ACCESS TO OR MODIFICATIONS OF
COMPUTER SETTINGS; COMPUTER DAMAGE. If a person is not the owner or
operator of the computer, the person may not knowingly cause
computer software to be copied 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;
(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
(iii) cause a third party affected by the
conduct to incur financial charges for a service not previously
authorized by the third party; 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 cause
computer software to be copied 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;
(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;
(5) change the name, location, or other designation of
computer software to prevent the owner from locating and removing
the software; or
(6) create randomized or intentionally deceptive file
names or random or intentionally deceptive directory folders,
formats, or registry entries to avoid detection and prevent the
owner from removing computer software.
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 cause 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.
[Sections 48.057-48.100 reserved for expansion]
SUBCHAPTER C. CIVIL REMEDIES
Sec. 48.101. CIVIL RELIEF. (a) The following persons, if
adversely affected by the violation, may bring a civil action
against a person who violates this chapter:
(1) a provider of computer software;
(2) an owner of a web page or trademark;
(3) a telecommunications carrier;
(4) a cable operator; or
(5) an Internet service provider.
(b) In addition to any other remedy provided by law and
except as provided by Subsection (g), 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 Subsection (b) 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
Subsection (b) 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 Subsection (b), 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.
(g) In the case of a violation of Section 48.052 that causes
a telecommunications carrier or cable operator to incur costs for
the origination, transport, or termination of a call triggered
using the modem of a customer of the telecommunications carrier or
cable operator as a result of the violation and in addition to any
other remedy provided by law, a telecommunications carrier or cable
operator bringing an action under this section may:
(1) apply to a court for an order to enjoin the
violation;
(2) recover the charges the telecommunications
carrier or cable operator is obligated to pay to a
telecommunications carrier, cable operator, other provider of
transmission capability, or an information service provider as a
result of the violation, including charges for the origination,
transport, or termination of the call;
(3) recover the costs of handling customer inquiries
or complaints with respect to amounts billed for calls as a result
of the violation;
(4) recover other costs, including court costs, and
reasonable attorney's fees; or
(5) both apply for injunctive relief and recover
charges and other costs as provided by this subsection.
Sec. 48.102. CIVIL PENALTY; INJUNCTION. (a) A person who
violates this chapter is liable to the state for a civil penalty in
an amount not to exceed $100,000 for each violation. The attorney
general may bring suit to recover the civil penalty imposed by this
subsection.
(b) If it appears to the attorney general that a person is
engaging in, has engaged in, or is about to engage in conduct that
violates this chapter, the attorney general may bring an action in
the name of this state against the person to restrain the violation
by a temporary restraining order or a permanent or temporary
injunction.
(c) The attorney general is entitled to recover reasonable
expenses incurred in obtaining injunctive relief, civil penalties,
or both, under this section, including reasonable attorney's fees
and court costs.
SECTION 2. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 327 passed the Senate on
April 14, 2005, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendments on May 27, 2005, by the
following vote: Yeas 29, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 327 passed the House, with
amendments, on May 25, 2005, by a non-record vote.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor