| |
|
| |
| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
| |
| HOUSE BILL |
|
| |
| |
| INTRODUCED BY BOBACK, BAKER, CALTAGIRONE, CRUZ, DENLINGER, FLECK, GEIST, GOODMAN, HARKINS, HELM, HESS, KNOWLES, KORTZ, MAJOR, METZGAR, MICCARELLI, MILLER, MUNDY, MURPHY, O'NEILL, PICKETT, READSHAW, SAYLOR, SIPTROTH, YOUNGBLOOD AND MILNE, JULY 23, 2010 |
| |
| |
| REFERRED TO COMMITTEE ON CONSUMER AFFAIRS, JULY 23, 2010 |
| |
| |
| |
| AN ACT |
| |
1 | Providing for the protection of consumers from having spyware |
2 | deceptively installed on wireless communication devices and |
3 | for criminal enforcement. |
4 | TABLE OF CONTENTS |
5 | Section 1. Short title. |
6 | Section 2. Definitions. |
7 | Section 3. Spyware prohibition. |
8 | Section 4. Misrepresentation and deception. |
9 | Section 5. Nonapplicability. |
10 | Section 6. Criminal enforcement. |
11 | Section 7. Penalty. |
12 | Section 8. Construction. |
13 | Section 9. Effective date. |
14 | The General Assembly of the Commonwealth of Pennsylvania |
15 | hereby enacts as follows: |
16 | Section 1. Short title. |
17 | This act shall be known and may be cited as the Consumer |
|
1 | Protection Against Spyware on Wireless Devices Act. |
2 | Section 2. Definitions. |
3 | The following words and phrases when used in this act shall |
4 | have the meanings given to them in this section unless the |
5 | context clearly indicates otherwise: |
6 | "Authorized user." With respect to a wireless communication |
7 | device, a person who is the account subscriber or is authorized |
8 | by the account subscriber to use the device. |
9 | "Deceptive" or "deception." Includes, but is not limited to: |
10 | (1) An intentionally and materially false or fraudulent |
11 | statement. |
12 | (2) A statement or description that intentionally omits |
13 | or misrepresents material information in order to deceive the |
14 | authorized user. |
15 | (3) An intentional and material failure to provide any |
16 | notice to an authorized user regarding the download or |
17 | installation of software in order to deceive the authorized |
18 | user. |
19 | "Download." Transfer, transmit, install or otherwise cause |
20 | software to be received and stored on a wireless communication |
21 | device. |
22 | "Electronic communication." As defined in 18 Pa.C.S. § 5702 |
23 | (relating to definitions). |
24 | "Execute." With respect to software, the performance of the |
25 | functions or the carrying out of the instructions of the |
26 | software. |
27 | "Internet." The global information system that is logically |
28 | linked together by a globally unique address space based on the |
29 | Internet Protocol (IP), or its subsequent extensions, and that |
30 | is able to support communications using the Transmission Control |
|
1 | Protocol/Internet Protocol (TCP/IP) suite, or its subsequent |
2 | extensions, or other IP-compatible protocols, and that provides, |
3 | uses or makes accessible, either publicly or privately, high- |
4 | level services layered on the communications and related |
5 | infrastructure described in this act. |
6 | "Message." A graphical, electronic or text communication |
7 | presented to an authorized user other than communications |
8 | originated and sent by the operating system or communications |
9 | presented for any of the purposes described in section 6. |
10 | "Oral communication." As defined in 18 Pa.C.S. § 5702 |
11 | (relating to definitions). |
12 | "Person." Any individual, partnership, corporation, limited |
13 | liability company or other organization, or any combination |
14 | thereof. |
15 | "Software." A sequence of instructions or data, written in |
16 | any programming language, executed on a wireless communication |
17 | device. |
18 | "Spyware." Any software designed to be downloaded on a |
19 | wireless communication device and permit remote monitoring of |
20 | oral communications, text messages, electronic communications |
21 | usage patterns, photographic or video functionality or the |
22 | location of the user of the device on which it has been |
23 | installed. |
24 | "Wireless communication." Any oral, electronic text or |
25 | graphic communication or message sent or received by the |
26 | authorized user of a wireless communication device. |
27 | "Wireless communication device." Any cellular device or |
28 | handset capable of: |
29 | (1) Sending or receiving, in analog or digital format, |
30 | oral text or electronic communications and messaging. |
|
1 | (2) Connecting to the Internet. |
2 | (3) Taking, sending and receiving photographs or video. |
3 | "Wireless communications service provider." An entity |
4 | providing wireless communications networks or services that |
5 | enable users to send and receive oral, electronic text or |
6 | graphic communications; access the Internet; and download |
7 | applications and software directly to a wireless communication |
8 | device. |
9 | Section 3. Spyware prohibition. |
10 | Subject to the nonapplicability provisions of section 5, no |
11 | person shall cause spyware to be installed or downloaded onto a |
12 | wireless communication device without the express consent of the |
13 | authorized user, |
14 | Section 4. Misrepresentation and deception. |
15 | A person or entity who is not an authorized user shall not |
16 | induce an authorized user to install spyware onto a wireless |
17 | communication device by misrepresenting that installing software |
18 | is necessary for security or privacy reasons or in order to |
19 | open, view or play a particular type of content, or commit any |
20 | other misrepresenting or deceptive act with regard to a wireless |
21 | communication device of an authorized user in this Commonwealth. |
22 | Section 5. Nonapplicability. |
23 | Nothing in this act shall: |
24 | (1) Apply to installation of any software or hardware on |
25 | a wireless communication device by a wireless communications |
26 | device manufacturer or wireless communications service |
27 | provider, provided that the software or hardware is: |
28 | (i) Necessary or incident to the provision of |
29 | wireless communications service or the equipment or |
30 | facilities used, in the ordinary course of business, to |
|
1 | provide wireless communications service. |
2 | (ii) Used, pursuant to court order or exigent |
3 | circumstances, to assist an investigative or law |
4 | enforcement officer or locate persons suspected of |
5 | involvement in criminal activities. |
6 | (iii) Used by police and emergency communications |
7 | systems to locate any person calling 911 or a police |
8 | department, fire department or county emergency center. |
9 | (2) Apply to monitoring of or interaction with a user's |
10 | wireless communication device, including the Internet or |
11 | other network connection or service, by a wireless |
12 | communications service provider for the purpose of network |
13 | security, diagnostics, technical support, repair, authorized |
14 | updates of software, network management or maintenance or any |
15 | other administrative, commercial, technical or business |
16 | purpose. |
17 | (3) Apply to monitoring of or interaction with a user's |
18 | wireless communication device, including the Internet or |
19 | other network connection or service, by a wireless |
20 | communications service provider for the purpose of detecting |
21 | or preventing unauthorized use, fraud or other illegal |
22 | activity in connection with a network, service or computer |
23 | software, including scanning for and removing spyware |
24 | proscribed under this act. |
25 | (4) Impact or limit the rights of providers of |
26 | electronic communications under 18 U.S.C. § 2511 (relating to |
27 | interception and disclosure of wire, oral, or electronic |
28 | communications prohibited); 18 U.S.C. § 2701 et seq. |
29 | (relating to stored wire and electronic communications and |
30 | transactional records access); 18 U.S.C. § 3117 (relating to |
|
1 | mobile tracking devices), 18 U.S.C. § 3121 et seq. (relating |
2 | to pen registers and trap and trace devices); or 18 Pa.C.S. § |
3 | 5704 (relating to exceptions to prohibition of interception |
4 | and disclosure of communications). |
5 | Section 6. Criminal enforcement. |
6 | (a) District attorneys.--The district attorneys of the |
7 | several counties shall have authority to investigate and to |
8 | institute criminal proceedings for any violations of this act. |
9 | (b) Attorney General.--In addition to the authority |
10 | conferred upon the Attorney General under the act of October 15, |
11 | 1980 (P.L.950, No.164), known as the Commonwealth Attorneys Act, |
12 | the Attorney General shall have the authority to investigate and |
13 | institute criminal proceedings for any violation of this act. A |
14 | person charged with a violation of this act by the Attorney |
15 | General shall not have standing to challenge the authority of |
16 | the Attorney General to investigate or prosecute the case and, |
17 | if any such challenge is made, the challenge shall be dismissed |
18 | and no relief shall be available in the courts of this |
19 | Commonwealth to the person making the challenge. |
20 | (c) Proceedings against persons outside Commonwealth.--In |
21 | addition to powers conferred upon district attorneys and the |
22 | Attorney General in subsections (a) and (b), district attorneys |
23 | and the Attorney General shall have the authority to investigate |
24 | and initiate criminal proceedings against persons for violations |
25 | of this act in accordance with 18 Pa.C.S. § 102 (relating to |
26 | territorial applicability). |
27 | Section 7. Penalty. |
28 | Any person that violates a provision of section 3 or 4 |
29 | commits a felony of the second degree and shall, upon |
30 | conviction, be sentenced to imprisonment for not more than ten |
|
1 | years or to pay a fine, notwithstanding 18 Pa.C.S. § 1101 |
2 | (relating to fines), of not more than $25,000, or both. |
3 | Section 8. Construction. |
4 | The provisions of this act shall not be construed to limit |
5 | the jurisdiction and authority of the Office of Attorney |
6 | General, including, but not limited to, the jurisdiction and |
7 | authority granted pursuant to the act of October 15, 1980 |
8 | (P.L.950, No.164), known as the Commonwealth Attorneys Act, and |
9 | the act of December 17, 1968 (P.L.1224, No.387), known as the |
10 | Unfair Trade Practices and Consumer Protection Law. |
11 | Section 9. Effective date. |
12 | This act shall take effect in 60 days. |
|