BILL REQ. #:  H-0206.2 

Prefiled 12/23/2004. Read first time 01/10/2005.   Referred to Committee on Technology, Energy & Communications.

     AN ACT Relating to computer spyware; and adding a new chapter to Title 19 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Advertisement" means a communication, the primary purpose of which is the commercial promotion of a commercial product or service, including content on an internet web site operated for a commercial purpose.
     (2) "Authorized user," with respect to a computer, means a person who owns or is authorized by the owner or lessee to use the computer. An "authorized user" does not include a person or entity that has obtained authorization to use the computer solely through the use of an end user license agreement.
     (3) "Computer software" means a sequence of instructions written in any programming language that is executed on a computer.
     (4) "Computer virus" means a computer program or other set of instructions that is designed to degrade the performance of or disable a computer or computer network and is designed to have the ability to replicate itself on other computers or computer networks without the authorization of the owners of those computers or computer networks.
     (5) "Consumer" means an individual who resides in this state and who uses the computer in question primarily for personal, family, or household purposes.
     (6) "Damage" means any significant impairment to the integrity or availability of data, software, a system, or information.
     (7) "Execute," when used with respect to computer software, means the performance of the functions or the carrying out of the instructions of the computer software.
     (8) "Intentionally deceptive" means any of the following:
     (a) An intentionally and materially false or fraudulent statement;
     (b) A statement or description that intentionally omits or misrepresents material information in order to deceive the consumer; and
     (c) An intentional and material failure to provide any notice to an authorized user regarding the download or installation of software in order to deceive the consumer.
     (9) "Internet" means the global information system that is logically linked together by a globally unique address space based on the internet protocol (IP), or its subsequent extensions, and that is able to support communications using the transmission control protocol/internet protocol (TCP/IP) suite, or its subsequent extensions, or other IP-compatible protocols, and that provides, uses, or makes accessible, either publicly or privately, high level services layered on the communications and related infrastructure described in this subsection.
     (10) "Person" means any individual, partnership, corporation, limited liability company, or other organization, or any combination thereof.
     (11) "Personally identifiable information" means any of the following:
     (a) First name or first initial in combination with last name;
     (b) Credit or debit card numbers or other financial account numbers;
     (c) A password or personal identification number required to access an identified financial account;
     (d) Social security number; and
     (e) Any of the following information in a form that personally identifies an authorized user:
     (i) Account balances;
     (ii) Overdraft history;
     (iii) Payment history;
     (iv) A history of web sites visited;
     (v) Home address;
     (vi) Work address; and
     (vii) A record of a purchase or purchases.

NEW SECTION.  Sec. 2   A person or entity that is not an authorized user shall not, with actual knowledge, with conscious avoidance of actual knowledge, or willfully, cause computer software to be copied onto the computer of a consumer in this state and use the software to do any of the following:
     (1) Modify, through intentionally deceptive means, any of the following settings related to the computer's access to, or use of, the internet:
     (a) The page that appears when an authorized user launches an internet browser or similar software program used to access and navigate the internet;
     (b) The default provider or web proxy the authorized user uses to access or search the internet; and
     (c) The authorized user's list of bookmarks used to access web pages;
     (2) Collect, through intentionally deceptive means, personally identifiable information that meets any of the following criteria:
     (a) It is collected through the use of a keystroke-logging function that records all keystrokes made by an authorized user who uses the computer and transfers that information from the computer to another person;
     (b) It includes all or substantially all of the web sites visited by an authorized user, other than web sites of the provider of the software, if the computer software was installed in a manner designed to conceal from all authorized users of the computer the fact that the software is being installed; and
     (c) It is a data element described in section 1(11) (b), (c), (d), or (e)(i) or (ii) of this act that is extracted 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 authorized user;
     (3) Prevent, without the authorization of an authorized user, through intentionally deceptive means, an authorized user's reasonable efforts to block the installation of, or to disable, software by causing software that the authorized user has properly removed or disabled to automatically reinstall or reactivate on the computer without the authorization of an authorized user;
     (4) Intentionally misrepresent that software will be uninstalled or disabled by an authorized user's action, with knowledge that the software will not be uninstalled or disabled; and
     (5) Through intentionally deceptive means, remove, disable, or render inoperative security, antispyware, or antivirus software installed on the computer.

NEW SECTION.  Sec. 3   (1) A person or entity that is not an authorized user shall not, with actual knowledge, with conscious avoidance of actual knowledge, or willfully, cause computer software to be copied onto the computer of a consumer in this state and use the software to do any of the following:
     (a) Take control of the consumer's computer by doing any of the following:
     (i) Transmitting or relaying commercial electronic mail or a computer virus from the consumer's computer, where the transmission or relaying is initiated by a person other than the authorized user and without the authorization of an authorized user;
     (ii) Accessing or using the consumer's modem or internet service to cause damage to the consumer's computer or to cause an authorized user to incur financial charges for a service that is not authorized by an authorized user;
     (iii) Using the consumer's computer as part of an activity performed by a group of computers to cause damage to another computer, including, but not limited to, launching a denial of service attack; and
     (iv) Opening multiple, sequential, stand-alone advertisements in the consumer's internet browser without the authorization of an authorized user and with knowledge that a reasonable computer user cannot close the advertisements without turning off the computer or closing the consumer's internet browser;
     (b) Modify any of the following settings related to the computer's access to, or use of, the internet:
     (i) An authorized user's security or other settings that protect information about the authorized user to steal personal information of an authorized user; and
     (ii) The security settings of the computer to cause damage to one or more computers; and
     (c) Prevent, without the authorization of an authorized user, an authorized user's reasonable efforts to block the installation of, or to disable, software by doing any of the following:
     (i) Presenting the authorized user with an option to decline installation of software with knowledge that, when the option is selected by the authorized user, the installation nevertheless proceeds; and
     (ii) Falsely representing that software has been disabled.
     (2) Nothing in this section applies to any monitoring of, or interaction with, a subscriber's internet or other network connection or service, or a protected computer, by a telecommunications carrier, cable operator, computer hardware or software provider, or provider of information service or interactive computer service for network or computer security purposes, diagnostics, technical support, repair, authorized updates of software or system firmware, authorized remote system management, or detection or prevention of the unauthorized use of or fraudulent or other illegal activities in connection with a network, service, or computer software, including scanning for and removing software under this chapter.

NEW SECTION.  Sec. 4   (1) A person or entity, who is not an authorized user, shall not do any of the following with regard to the computer of a consumer in this state:
     (a) Induce an authorized user to install a software component onto the computer by intentionally misrepresenting that installing software is necessary for security or privacy reasons or in order to open, view, or play a particular type of content; and
     (b) Deceptively cause the copying and execution on the computer of a computer software component with the intent of causing an authorized user to use the component in a way that violates any other provision of this section.
     (2) Nothing in this section shall apply to any monitoring of, or interaction with, a subscriber's internet or other network connection or service, or a protected computer, by a telecommunications carrier, cable operator, computer hardware or software provider, or provider of information service or interactive computer service for network or computer security purposes, diagnostics, technical support, repair, authorized updates of software or system firmware, authorized remote system management, or detection or prevention of the unauthorized use of or fraudulent or other illegal activities in connection with a network, service, or computer software, including scanning for and removing software under this chapter.

NEW SECTION.  Sec. 5   It is the intent of the legislature that this chapter is a matter of statewide concern. This chapter supersedes and preempts all rules, regulations, codes, ordinances, and other laws adopted by a city, county, city and county, municipality, or local agency regarding spyware and notices to consumers from computer software providers regarding information collection.

NEW SECTION.  Sec. 6   The legislature finds that the practices covered by this chapter are matters vitally affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW. A violation of this chapter is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the consumer protection act, chapter 19.86 RCW.

NEW SECTION.  Sec. 7   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 8   Sections 1 through 7 of this act constitute a new chapter in Title 19 RCW.