S T A T E O F N E W Y O R K
________________________________________________________________________
4057
2015-2016 Regular Sessions
I N S E N A T E
February 26, 2015
___________
Introduced by Sen. SAMPSON -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law, in relation to establishing the crime of
unlawful use of spyware and malware
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The penal law is amended by adding a new section 156.45 to
read as follows:
S 156.45 UNLAWFUL USE OF SPYWARE AND MALWARE.
1. A PERSON IS GUILTY OF UNLAWFUL USE OF SPYWARE AND MALWARE WHEN SUCH
PERSON OR ENTITY THAT IS NOT AN AUTHORIZED USER, AS DEFINED IN SUBDIVI-
SION FOUR OF THIS SECTION, WITH ACTUAL KNOWLEDGE, WITH CONSCIOUS AVOID-
ANCE OF ACTUAL KNOWLEDGE, OR WILLFULLY, CAUSES COMPUTER SOFTWARE TO BE
COPIED ONTO THE COMPUTER OF A CONSUMER IN THIS STATE AND USES THE SOFT-
WARE TO DO ANY OF THE FOLLOWING:
(A) MODIFY, THROUGH INTENTIONALLY DECEPTIVE MEANS, ANY OF THE FOLLOW-
ING SETTINGS RELATED TO THE COMPUTER'S ACCESS TO, OR USE OF, THE INTER-
NET:
(1) THE PAGE THAT APPEARS WHEN AN AUTHORIZED USER LAUNCHES AN INTERNET
BROWSER OR SIMILAR SOFTWARE PROGRAM USED TO ACCESS AND NAVIGATE THE
INTERNET.
(2) THE DEFAULT PROVIDER OR WEB PROXY THE AUTHORIZED USER USES TO
ACCESS OR SEARCH THE INTERNET.
(3) THE AUTHORIZED USER'S LIST OF BOOKMARKS USED TO ACCESS WEB PAGES.
(B) COLLECT, THROUGH INTENTIONALLY DECEPTIVE MEANS, PERSONALLY IDEN-
TIFIABLE INFORMATION THAT MEETS ANY OF THE FOLLOWING CRITERIA:
(1) 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.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09119-01-5
S. 4057 2
(2) 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.
(3) IT IS A DATA ELEMENT DESCRIBED IN SUBPARAGRAPH TWO, THREE, OR FOUR
OF PARAGRAPH (K) OF SUBDIVISION FOUR OF THIS SECTION, OR IN CLAUSE (A)
OR (B) OF SUBPARAGRAPH FIVE OF PARAGRAPH (K) OF SUBDIVISION FOUR OF THIS
SECTION, 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, THROUGH
INTENTIONALLY DECEPTIVE MEANS, AN AUTHORIZED USER'S REASONABLE EFFORTS
TO BLOCK THE INSTALLATION OF, OR TO DISABLE, SOFTWARE, BY CAUSING SOFT-
WARE THAT THE AUTHORIZED USER HAS PROPERLY REMOVED OR DISABLED TO AUTO-
MATICALLY REINSTALL OR REACTIVATE ON THE COMPUTER WITHOUT THE AUTHORI-
ZATION OF AN AUTHORIZED USER.
(D) INTENTIONALLY MISREPRESENT THAT SOFTWARE WILL BE UNINSTALLED OR
DISABLED BY AN AUTHORIZED USER'S ACTION, WITH KNOWLEDGE THAT THE SOFT-
WARE WILL NOT BE SO UNINSTALLED OR DISABLED.
(E) THROUGH INTENTIONALLY DECEPTIVE MEANS, 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, AS DEFINED IN
SUBDIVISION FOUR OF THIS SECTION, 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:
(1) 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.
(2) ASSESSING OR USING THE CONSUMER'S MODEM OR INTERNET SERVICE FOR
THE PURPOSE OF CAUSING DAMAGE TO THE CONSUMER'S COMPUTER OR OF CAUSING
AN AUTHORIZED USER TO INCUR FINANCIAL CHARGES FOR A SERVICE THAT IS NOT
AUTHORIZED BY AN AUTHORIZED USER.
(3) USING THE CONSUMER'S COMPUTER AS PART OF AN ACTIVITY PERFORMED BY
A GROUP OF COMPUTERS FOR THE PURPOSE OF CAUSING DAMAGE TO ANOTHER
COMPUTER, INCLUDING, BUT NOT LIMITED TO, LAUNCHING A DENIAL OF SERVICE
ATTACK.
(4) 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:
(1) 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.
(2) THE SECURITY SETTINGS OF THE COMPUTER FOR THE PURPOSE OF CAUSING
DAMAGE TO ONE OR MORE COMPUTERS.
S. 4057 3
(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:
(1) 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.
(2) FALSELY REPRESENTING THAT SOFTWARE HAS BEEN DISABLED.
(D) 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 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
PROSCRIBED UNDER THIS SECTION.
3. (A) A PERSON OR ENTITY, WHO IS NOT AN UNAUTHORIZED USER, AS DEFINED
IN SUBDIVISION FOUR OF THIS SECTION, SHALL NOT DO ANY OF THE FOLLOWING
WITH REGARD TO THE COMPUTER OF A CONSUMER IN THIS STATE:
(1) 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.
(2) DECEPTIVELY CAUSING 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
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
PROSCRIBED UNDER THIS SECTION.
4. FOR PURPOSES OF THIS SECTION:
(A) "ADVERTISEMENT" SHALL MEAN 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.
(B) "AUTHORIZED USER," WITH RESPECT TO A COMPUTER, SHALL MEAN 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.
(C) "COMPUTER SOFTWARE" SHALL MEAN A SEQUENCE OF INSTRUCTIONS WRITTEN
IN ANY PROGRAMMING LANGUAGE THAT IS EXECUTED ON A COMPUTER.
(D) "COMPUTER VIRUS" SHALL MEAN 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
S. 4057 4
REPLICATE ITSELF ON OTHER COMPUTERS OR COMPUTER NETWORKS WITHOUT THE
AUTHORIZATION OF THE OWNERS OF THOSE COMPUTERS OR COMPUTER NETWORKS.
(E) "CONSUMER" SHALL MEAN AN INDIVIDUAL WHO RESIDES IN THIS STATE AND
WHO USES THE COMPUTER IN QUESTION PRIMARILY FOR PERSONAL, FAMILY, OR
HOUSEHOLD PURPOSES.
(F) "DAMAGE" SHALL MEAN ANY SIGNIFICANT IMPAIRMENT TO THE INTEGRITY OR
AVAILABILITY OF DATA, SOFTWARE, A SYSTEM, OR INFORMATION.
(G) "EXECUTE," WHEN USED WITH RESPECT TO COMPUTER SOFTWARE, SHALL MEAN
THE PERFORMANCE OF THE FUNCTIONS OR THE CARRYING OUT OF THE INSTRUCTIONS
OF THE COMPUTER SOFTWARE.
(H) "INTENTIONALLY DECEPTIVE" SHALL MEAN ANY OF THE FOLLOWING:
(1) BY MEANS OF AN INTENTIONALLY AND MATERIALLY FALSE OR FRAUDULENT
STATEMENT.
(2) BY MEANS OF A STATEMENT OR DESCRIPTION THAT INTENTIONALLY OMITS OR
MISREPRESENTS MATERIAL INFORMATION IN ORDER TO DECEIVE THE CONSUMER.
(3) BY MEANS OF 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.
(I) "INTERNET" SHALL MEAN 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 SUBDIVI-
SION.
(J) "PERSON" SHALL MEAN ANY INDIVIDUAL, PARTNERSHIP, CORPORATION,
LIMITED LIABILITY COMPANY, OR OTHER ORGANIZATION, OR ANY COMBINATION
THEREOF.
(K) "PERSONALLY IDENTIFIABLE INFORMATION" SHALL MEAN ANY OF THE
FOLLOWING:
(1) FIRST NAME OR FIRST INITIAL IN COMBINATION WITH LAST NAME.
(2) CREDIT OR DEBIT CARD NUMBERS OR OTHER FINANCIAL ACCOUNT NUMBERS.
(3) A PASSWORD OR PERSONAL IDENTIFICATION NUMBER REQUIRED TO ACCESS AN
IDENTIFIED FINANCIAL ACCOUNT.
(4) SOCIAL SECURITY NUMBER.
(5) ANY OF THE FOLLOWING INFORMATION IN A FORM THAT PERSONALLY IDENTI-
FIES AN AUTHORIZED USER:
(A) ACCOUNT BALANCES.
(B) OVERDRAFT HISTORY.
(C) PAYMENT HISTORY.
(D) A HISTORY OF WEB SITES VISITED.
(E) HOME ADDRESS.
(F) WORK ADDRESS.
(G) A RECORD OF A PURCHASE OR PURCHASES.
UNLAWFUL USE OF SPYWARE AND MALWARE IS A CLASS A MISDEMEANOR,
PROVIDED, HOWEVER, THAT UNLAWFUL USE OF SPYWARE AND MALWARE BY A PERSON
WHO HAS BEEN PREVIOUSLY CONVICTED WITHIN THE LAST FIVE YEARS OF HAVING
VIOLATED THIS SECTION IS A CLASS E FELONY.
S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.