article: SECTION 1. SHORT TITLE. This Act may be cited as the ``Spyware Control and Privacy Protection Act of 2000''. SEC. 2. COLLECTION OF INFORMATION BY COMPUTER SOFTWARE. (a) Notice and Choice Required.-- (1) In general.--Any computer software made available to the public, whether by sale or without charge, that includes a capability to collect information about the user of such computer software, the hardware on which such computer software is used, or the manner in which such computer software is used, and to disclose to such information to any person other than the user of such computer software, shall include-- (A) a clear and conspicuous written notice, on the first electronic page of the instructions for the installation of such computer software, that such computer software includes such capability; (B) a description of the information subject to collection and the name and address of each person to whom such computer software will transmit or otherwise communicate such information; and (C) a clear and conspicuous written electronic notice, in a manner reasonably calculated to provide the user of such computer software with easily understood instructions on how to disable such capability without affecting the performance or operation of such computer software for the purposes for which such computer software was intended. (2) Enablement of capability.--A capability of computer software described in paragraph (1) may not be enabled unless the user of such computer software provides affirmative consent, in advance, to the enablement of the capability. (3) Exception.--The requirements in paragraphs (1) and (2) shall not apply to any capability of computer software that is reasonably needed to-- (A) determine whether or not the user is a licensed or authorized user of such computer software; (B) provide, upon request of the user, technical support of the use of such computer software by the user; or (C) enable an employer to monitor computer usage by its employees while such employees are within the scope of employment as authorized by applicable Federal, State, or local law. (4) Use of information collected through excepted capability.--Any information collected through a capability described in paragraph (1) for a purpose referred to in paragraph (3) may be utilized only for the purpose for which such information is collected under paragraph (3). (5) Access to information collected through excepted capability.--Any person collecting information about a user of computer software through a capability described in paragraph (1) shall-- (A) upon request of the user, provide reasonable access by user to information so collected; (B) provide a reasonable opportunity for the user to correct, delete, or supplement such information; and (C) make the correction or supplementary information a part of the information about the user for purposes of any future use of such information under this subsection. (6) Security of information collected through excepted capability.--Any person collecting information through a capability described in paragraph (1) shall establish and maintain reasonable procedures necessary to protect the security, confidentiality, and integrity of such information. (b) Preinstallation.--In the case of computer software described in subsection (a)(1) that is installed on a computer by someone other than the user of such computer software, whether through preinstallation by the provider of such computer or computer software, by installation by someone before delivery of such computer to the user, or otherwise, the notice and instructions under that subsection shall be provided in electronic form to the user before the first use of such computer software by the user. (c) Violations.--A violation of subsection (a) or (b) shall be treated as an unfair or deceptive act or practice proscribed by section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)). (d) Disclosure to Law Enforcement or Under Court Order.-- (1) In general.--Notwithstanding any other provision of this section, a computer software provider that collects information about users of the computer software may disclose information about a user of the computer software-- (A) to a law enforcement agency in response to a warrant issued under the Federal Rules of Criminal Procedure, an equivalent State warrant, or a court order issued in accordance with paragraph (3); or (B) in response to a court order in a civil proceeding granted upon a showing of compelling need for the information that cannot be accommodated by any other means if-- (i) the user to whom the information relates is given reasonable notice by the person seeking the information of the court proceeding at which the order is requested; and (ii) the user is afforded a reasonable opportunity to appear and contest the issuance of the requested order or to narrow its scope. (2) Safeguards against further disclosure.--A court that issues an order described in paragraph (1) shall impose appropriate safeguards on the use of the information to protect against its unauthorized disclosure. (3) Court orders.--A court order authorizing disclosure under paragraph (1)(A) may issue only with prior notice to the user and only if the law enforcement agency shows that there is probable cause to believe that the user has engaged, is engaging, or is about to engage in criminal activity and that the records or other information sought are material to the investigation of such activity. In the case of a State government authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this paragraph, on a motion made promptly by the computer software provider may quash or modify such order if the information or records requested are unreasonably voluminous in nature or if compliance with such order otherwise would cause an unreasonable burden on the provider. (e) Private Right of Action.-- (1) Actions authorized.--A person may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate Federal court, if such laws or rules prohibit such actions, either or both of the actions as follows: (A) An action based on a violation of subsection (a) or (b) to enjoin such violation. (B) An action to recover actual monetary loss for a violation of subsection (a) or (b) in an amount equal to the greater of-- (i) the amount of such actual monetary loss; or (ii) $2,500 for such violation, not to exceed a total amount of $500,000. (2) Additional remedy.--If the court in an action under paragraph (1) finds that the defendant willfully, knowingly, or repeatedly violated subsection (a) or (b), the court may, in its discretion, increase the amount of the award under paragraph (1)(B) to an amount not greater than three times the amount available under paragraph (1)(B)(ii). (3) Litigation costs and attorney fees.--In any action under paragraph (1), the court may, in its discretion, require an undertaking for the payment of the costs of such action and assess reasonable costs, including reasonable attorney fees, against the defendant. (4) Venue.--In addition to any contractual provision otherwise, venue for an action under paragraph (1) shall lie where the computer software concerned was installed or used or where the person alleged to have committed the violation concerned is found. (5) Protection of trade secrets.--At the request of any party to an action under paragraph (1), or any other participant in such action, the court may, in its discretion, issue a protective order and conduct proceedings in such action so as to protect the secrecy and security of the computer, computer network, computer data, computer program, and computer software involved in order to-- (A) prevent possible recurrence of the same or a similar act by another person; or (B) protect any trade secrets of such party or participant. (f) Definitions.--In this section: (1) Collect.--The term ``collect'' means the gathering of information about a computer or a user of computer software by any means, whether direct or indirect and whether active or passive. (2) Computer.--The term ``computer'' means a programmable electronic device that can store, retrieve, and process data. (3) Computer software.--(A) Except as provided in subparagraph (B), the term ``computer software'' means any program designed to cause a computer to perform a desired function or functions. (B) The term does not include a text file, or cookie, placed on a person's computer system by an Internet service provider, interactive computer service, or commercial Internet website to return information to the Internet service provider, interactive computer service, commercial Internet website, or third party if the person subsequently uses the Internet service provider or interactive computer service, or accesses the commercial Internet website. (4) Information.--The term ``information'' means information that personally identifies a user of computer software, including the following: (A) A first and last name, whether given at birth or adoption, assumed, or legally changed. (B) A home or other physical address including street name and name of a city or town. (C) An electronic mail address. (D) A telephone number. (E) A social security number. (F) A credit card number, any access code associated with the credit card, or both. (G) A birth date, birth certificate number, or place of birth. (H) Any other unique information identifying an individual that a computer software provider, Internet service provider, interactive computer service, or operator of a commercial Internet website collects and combines with information described in subparagraphs (A) through (G) of this paragraph. (5) Person.--The term ``person'' has the meaning given that term in section 3(32) of the Communications Act of 1934 (47 U.S.C. 153(32)). (6) User.--The term ``user'' means an individual who acquires, through purchase or otherwise, computer software for purposes other than resale. (g) Effective Date.--This section shall take effect 180 days after the date of the enactment of this Act.
summary: Prohibits such capability from being enabled unless the user consent in advance. Provides exceptions for any such capability reasonably needed to: (1) determine whether a user is a licensed or authorized user; (2) provide technical support for such software; or (3) enable an employer to monitor computer usage by employees within the scope of employment authorized by applicable Federal, State, or local law. Requires the protection of information collected through such exceptions. Treats each violations of such requirements and prohibition as an unfair or deceptive act or practice under the Federal Trade Commission Act. Authorizes a software provider to disclose such information to law enforcement officials or a court under a warrant or court order (requiring that the user be given notice of such request and an opportunity to contest). Requires a court issuing such an order to ensure appropriate safeguards on the use of such information. Provides a private right of action for users for enforcement of this Act. Authorizes a court, in such an action, to issue a protective order and conduct proceedings so as to protect trade secrets.