79R1024 CLG-D
By: Zaffirini S.B. No. 327
A BILL TO BE ENTITLED
AN ACT
relating to the unauthorized collection and transmission of certain
information by computer; 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. COLLECTION AND TRANSMISSION OF CERTAIN INFORMATION BY
COMPUTER
Sec. 48.001. DEFINITIONS. In this chapter:
(1) "Authorized user" with respect to a computer means
a person who:
(A) owns the computer; or
(B) is authorized by the owner to use or exercise
control over the computer.
(2) "Keylogging program" means a computer program
that:
(A) is installed on a computer without the
knowledge of an authorized user of the computer; and
(B) transmits electronic communications
displaying all of the keystrokes made by a person using the computer
to another person.
(3) "Spyware" means an executable computer program,
including a keylogging program, that automatically and without the
knowledge or control of a person using a computer collects and
transmits to another person:
(A) information about the person using the
computer, including the person's identifying information; or
(B) information regarding the use of a computer,
including which Internet sites are visited by a person using the
computer.
(4) "Identifying information" has the meaning
assigned by Section 32.51, Penal Code.
Sec. 48.002. PROVISION OF SPYWARE; CONSENT OR NOTICE
REQUIRED. (a) If a person is not, or does not have the effective
consent of, an authorized user of the computer, a person may not
install, copy, download, or provide for downloading spyware to a
computer in this state unless:
(1) the person provides a clear and conspicuous notice
to an authorized user of the computer who is 18 years of age or older
that:
(A) appears set out from any electronic window or
form visible on the computer;
(B) states that spyware is being installed on,
copied to, or downloaded to the computer, as appropriate;
(C) describes the type of information that is
being collected and the name and address of the other person to whom
the information is being transmitted; and
(D) describes how the spyware is intended to
affect the performance or operation of the computer; and
(2) the person provides a method by which the
authorized user of the computer can:
(A) quickly and easily disable and remove the
spyware from the computer without affecting the performance or
operation of the computer; and
(B) if spyware is being installed, refuse the
installation and require that no further contact be made regarding
the installation.
(b) For purposes of Subsection (a), a person is considered
to provide spyware for downloading to a computer if:
(1) the person provides the spyware as an individual
product; or
(2) the spyware is bundled as a component of another
computer program provided or made available by the person,
regardless of whether that program can be downloaded from the
Internet.
(c) The notice required by Subsection (a) must be provided
during the initial execution, start-up, installation, download,
configuration, or operation of the computer, as appropriate.
Sec. 48.003. CIVIL PENALTY. (a) A person who violates this
chapter is liable to the state for a civil penalty not to exceed
$1,000 for each violation.
(b) The attorney general or the prosecuting attorney in the
county in which a violation occurs may:
(1) bring suit to recover the civil penalty imposed
under Subsection (a); or
(2) seek an injunction to prevent or restrain a
violation of this chapter.
(c) The attorney general or the prosecuting attorney may
recover reasonable expenses incurred in obtaining a civil penalty
under this section, including court costs and reasonable attorney's
fees.
Sec. 48.004. APPLICABILITY OF CHAPTER. This chapter does
not apply to a person who makes available to an authorized user of a
computer software that is:
(1) installed on, copied to, or downloaded to a
computer solely to diagnose or resolve technical difficulties;
(2) intended solely to facilitate ordinary and
expected access to and use of the computer; or
(3) considered reasonably necessary for any
legitimate law enforcement purpose as authorized by law.
SECTION 2. A civil penalty for a violation of Section
48.002, Business & Commerce Code, as added by this Act, may be
imposed only for a violation that occurs on or after January 1,
2006.
SECTION 3. This Act takes effect September 1, 2005.