NY State Senate Bill 2011-S3374

Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 04, 2012	referred to consumer protection
Feb 17, 2011	referred to consumer protection

2011-S3374 (ACTIVE) - Details

Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Add Art 28-F §§491 - 494, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S4716
2013-2014: S3230

2011-S3374 (ACTIVE) - Summary

Enacts the "consumer protection against computer spyware act"; establishes a person or entity that is not an authorized user shall not cause computer software to be copied onto the computer of a consumer in this state and cause such software to do certain things; allows the attorney general to bring a civil action against any person violating the provisions of this act.

2011-S3374 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S3374

TITLE OF BILL:
An act
to amend the general business
law, in relation to enacting the "consumer protection against computer
spyware act"

PURPOSE:
This bill seeks to protect the privacy of computer users by
banning the dissemination of computer spyware.

SUMMARY OF SPECIFIC PROVISIONS:
This bill would amend the General Business Law to prohibit:

* An unauthorized user from, using deceptive means, modifying a
computers settings, collecting personally identifiable information,
removing anti-spyware or anti-virus software or misrepresenting
software that is being installed on a computer; or

* An unauthorized user from copying or causing to be copied into a
computer through deceptive means, software that takes over a computer
by using it to transmit a multiple spam email messages, opening
multiple stand-alone "pop-ups" or using the computer to cause damage
to another computer; or

* Modifying, through deceptive means, security settings that protect
personal information, settings that block reasonable efforts to block
or uninstall computer software;

* Inducing an authorized user to install software claiming it is
necessary for computer security.

This bill would further authorize the Attorney General to bring a
civil action against anyone who violates the provisions of this bill
to recover $500 for each violation and $100,000 for a pattern of
violations

JUSTIFICATION:
Computer users often download information from the internet without
truly understanding what function the programs will have.

Many times computer users will encounter the opportunity to download a
computer program from the internet that they believe will give them
an innocuous program that will help them organize their lives or
provide them additional security features. Sometimes however, it is
not known by the computer user what other functions the program will
actually have. Unbeknownst to the computer user these seemingly
harmless computer programs may also send information to a third party
such as a marketing firm, or worse a person who wishes to commit
identity theft.

This legislation seeks to hold those who deceive computer users into
installing software that significantly alters computer function and
security.


One of the large growing problems for personal computer users and
businesses is the threat of spyware.

It is estimated that 25% of business computers have been infected with
spyware and 65% of businesses plan to spend money on protecting their
computer network according to Forrester research.

This bill seeks to begin to address this growing problem.

LEGISLATIVE HISTORY:
2009-2010: S.4716 - Died in Consumer Protection
2007-2008: S.3655 - Referred to Codes Committee.
2005-2006: S.186C - Passed Senate in 2005, Died in Assembly; Died in
Senate Rules in 2006.

FISCAL IMPLICATIONS:
None Noted.

EFFECTIVE DATE:
This act shall take effect 90 days after it shall have
become a law.

2011-S3374 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3374

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 17, 2011
                               ___________

Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Consumer Protection

AN ACT to amend the general business law, in relation  to  enacting  the
  "consumer protection against computer spyware act"

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The general business law is amended by adding a new article
28-F to read as follows:
                              ARTICLE 28-F
              CONSUMER PROTECTION AGAINST COMPUTER SPYWARE
SECTION 491. SHORT TITLE.
        492. DEFINITIONS.
        493. CONSUMER PROTECTION AGAINST COMPUTER SPYWARE.
        494. ENFORCEMENT.
  S 491. SHORT TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY  BE  CITED  AS
THE "CONSUMER PROTECTION AGAINST COMPUTER SPYWARE ACT".
  S  492. DEFINITIONS. FOR PURPOSES OF THIS ARTICLE, THE FOLLOWING TERMS
HAVE THE FOLLOWING MEANINGS:
  1. "ADVERTISEMENT" MEANS A COMMUNICATION, THE PRIMARY PURPOSE OF WHICH
IS THE COMMERCIAL PROMOTION OF A COMMERCIAL PRODUCT OR SERVICE,  INCLUD-
ING 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.
  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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09450-01-1

S. 3374                             2

  5.  "CONSUMER"  MEANS  AN INDIVIDUAL WHO RESIDES IN THIS STATE AND WHO
USES THE COMPUTER IN QUESTION PRIMARILY FOR PERSONAL, FAMILY, OR  HOUSE-
HOLD 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. "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 SUBDIVISION.
  9.  "PERSON"  MEANS  ANY INDIVIDUAL, PARTNERSHIP, CORPORATION, LIMITED
LIABILITY COMPANY, OR OTHER ORGANIZATION, OR ANY COMBINATION THEREOF.
  10. "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; OR
  (E) ANY OF THE FOLLOWING INFORMATION IN A FORM THAT PERSONALLY IDENTI-
FIES 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; OR
  (VII) A RECORD OF A PURCHASE OR PURCHASES.
  S 493. CONSUMER PROTECTION AGAINST COMPUTER SPYWARE. 1.  A  PERSON  OR
ENTITY  THAT IS NOT AN AUTHORIZED USER SHALL NOT 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)  MODIFY  ANY  OF  THE FOLLOWING SETTINGS RELATED TO THE COMPUTER'S
ACCESS TO, OR USE OF, THE INTERNET:
  (I) THE PAGE THAT APPEARS WHEN AN AUTHORIZED USER LAUNCHES AN INTERNET
BROWSER OR SIMILAR SOFTWARE PROGRAM USED  TO  ACCESS  AND  NAVIGATE  THE
INTERNET;
  (II)  THE  DEFAULT  PROVIDER  OR WEB PROXY THE AUTHORIZED USER USES TO
ACCESS OR SEARCH THE INTERNET; OR
  (III) THE AUTHORIZED USER'S LIST  OF  BOOKMARKS  USED  TO  ACCESS  WEB
PAGES.
  (B)  COLLECT PERSONALLY IDENTIFIABLE INFORMATION THAT MEETS ANY OF THE
FOLLOWING CRITERIA:
  (I) IT IS COLLECTED THROUGH THE USE OF  A  KEYSTROKE-LOGGING  FUNCTION
THAT RECORDS KEYSTROKES MADE BY AN AUTHORIZED USER WHO USES THE COMPUTER
AND TRANSFERS THAT INFORMATION FROM THE COMPUTER TO ANOTHER PERSON;
  (II)  IT INCLUDES ALL OR SUBSTANTIALLY ALL OF THE WEB SITES VISITED BY
AN AUTHORIZED USER, OTHER THAN WEB SITES OF THE PROVIDER  OF  THE  SOFT-
WARE,  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; OR

S. 3374                             3

  (III)  IT  IS A DATA ELEMENT DESCRIBED IN PARAGRAPH (B), (C) OR (D) OR
SUBPARAGRAPH (I) OR (II) OF PARAGRAPH (E) OF SUBDIVISION TEN OF  SECTION
FOUR  HUNDRED  NINETY-TWO  OF  THIS  ARTICLE, 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.
  (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 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.
  (D)  REPRESENT  THAT  SOFTWARE  WILL  BE UNINSTALLED OR DISABLED BY AN
AUTHORIZED USER'S ACTION, WITH KNOWLEDGE THAT THE SOFTWARE WILL  NOT  BE
SO UNINSTALLED OR DISABLED.
  (E)  REMOVE,  DISABLE, OR RENDER INOPERATIVE SECURITY, ANTISPYWARE, OR
ANTIVIRUS SOFTWARE INSTALLED ON THE COMPUTER.
  2. A PERSON OR ENTITY THAT IS NOT AN AUTHORIZED USER SHALL  NOT  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; OR
  (II) 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  CONSUM-
ER'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  FOR  THE  PURPOSE OF STEALING
PERSONAL INFORMATION OF AN AUTHORIZED USER; OR
  (II) THE SECURITY SETTINGS OF THE COMPUTER FOR THE PURPOSE OF  CAUSING
DAMAGE TO ONE OR MORE COMPUTERS.
  (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 INSTALLA-
TION OF SOFTWARE WITH KNOWLEDGE THAT, WHEN THE OPTION IS  SELECTED    BY
THE AUTHORIZED USER, THE INSTALLATION NEVERTHELESS PROCEEDS; OR
  (II) FALSELY REPRESENTING THAT SOFTWARE HAS BEEN DISABLED.
  3.  (A) 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:
  (I) INDUCE AN AUTHORIZED USER TO INSTALL A SOFTWARE COMPONENT ONTO THE
COMPUTER BY REPRESENTING THAT INSTALLING SOFTWARE IS NECESSARY FOR SECU-
RITY  OR PRIVACY REASONS OR IN ORDER TO OPEN, VIEW, OR PLAY A PARTICULAR
TYPE OF CONTENT; OR
  (II) 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.
  (B)  NOTHING  IN  THIS  SECTION  SHALL  APPLY TO ANY MONITORING OF, OR
INTERACTION WITH, A SUBSCRIBER'S INTERNET OR OTHER NETWORK CONNECTION OR

S. 3374                             4

SERVICE, OR A PROTECTED COMPUTER, BY A TELECOMMUNICATIONS CARRIER, CABLE
OPERATOR, COMPUTER HARDWARE OR SOFTWARE PROVIDER, OR PROVIDER OF  INFOR-
MATION  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 MANAGE-
MENT, OR DETECTION OR PREVENTION OF THE UNAUTHORIZED USE OF  OR  FRAUDU-
LENT  OR OTHER ILLEGAL ACTIVITIES IN CONNECTION WITH A NETWORK, SERVICE,
OR COMPUTER SOFTWARE,  INCLUDING  SCANNING  FOR  AND  REMOVING  SOFTWARE
PRESCRIBED UNDER THIS ARTICLE.
  (C)  ANY  PROVISION  OF  A  CONTRACT OR AN AGREEMENT ENTERED INTO BY A
CONSUMER THAT DECEIVES A CONSUMER AND THAT PURPORTS OR MAY BE  CONSTRUED
TO  AUTHORIZE,  DIVERT,  OR  REQUIRE  ANYTHING  THAT  WOULD CONSTITUTE A
VIOLATION OF ANY OF THE PROVISIONS OF THIS SECTION IS HEREBY DECLARED TO
BE VOID AS AGAINST PUBLIC POLICY AND SHALL NOT BE ENFORCEABLE.
  S 494. ENFORCEMENT. THE ATTORNEY GENERAL  MAY  BRING  A  CIVIL  ACTION
AGAINST  ANY  PERSON  WHO VIOLATES THIS ARTICLE TO ENFORCE THE VIOLATION
AND MAY RECOVER ANY OR ALL OF THE FOLLOWING:
  1. A CIVIL PENALTY OF FIVE HUNDRED DOLLARS PER VIOLATION OF THIS ARTI-
CLE;
  2. COSTS AND A REASONABLE ATTORNEYS' FEE; AND
  3. AN ORDER TO ENJOIN THE VIOLATION.
  S 2. Severability. If any clause, sentence, paragraph, section or part
of this act shall be adjudged by any court of competent jurisdiction  to
be  invalid,  such  judgement shall not affect, impair or invalidate the
remainder thereof, but shall be confined in its operation to the clause,
sentence, paragraph, section or part thereof directly  involved  in  the
controversy in which such judgement shall have been rendered.
  S  3.  This  act shall take effect on the ninetieth day after it shall
have become a law.

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Senate Bill S3374

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Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

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2011-S3374 (ACTIVE) - Details

2011-S3374 (ACTIVE) - Summary

2011-S3374 (ACTIVE) - Sponsor Memo

2011-S3374 (ACTIVE) - Bill Text download pdf

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Sponsored By

Kevin S. Parker

Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

Actions

2011-S3374 (ACTIVE) - Details

2011-S3374 (ACTIVE) - Summary

2011-S3374 (ACTIVE) - Sponsor Memo

2011-S3374 (ACTIVE) - Bill Text download pdf

Comments