BILL NUMBER: SB 1436	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senator Murray

                        FEBRUARY 19, 2004

   An act to add Chapter 32 (commencing with Section 22947) to
Division 8 of the Business and Professions Code, relating to
business.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 1436, as introduced, Murray.  Computer spyware.
   Existing law provides for the regulation of various businesses by
the Department of Consumer Affairs.  No provision of existing law
provides for the regulation of computer spyware.
   This bill would require a person or entity providing computer
software containing spyware, as defined, to a computer in California
to disclose to the recipient that the software contains spyware and
what the spyware does.  The bill would authorize the recipient of
computer spyware transmitted in violation of the prohibitions, the
Internet service provider, or the Attorney General to bring an action
to recover actual damages.  The bill would authorize these parties
to recover liquidated damages of $1,000 per transmission, subject to
reduction by a court for specified reasons.  The bill would provide
for an award of reasonable attorney's fees and costs to a prevailing
plaintiff.
   This bill would prohibit the transmission to a computer in
California of software containing spyware in violation of the policy
of the recipient's Internet service provider.  The bill would
authorize a provider whose policy is violated to bring a civil action
to recover specified damages.  The bill would prohibit a provider
from bringing an action under both this provision and other
provisions being added by the bill for the same transmission of
software containing spyware.
   This bill would provide that if any part of these provisions or
their applications are held invalid, the invalidity would not affect
other provisions.
   Vote:  majority.  Appropriation:  no.  Fiscal committee:  yes.
State-mandated local program:  no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Chapter 32 (commencing with Section 22947) is added to
Division 8 of the Business and Professions Code, to read:

      CHAPTER 32.  CONSUMER PROTECTION AGAINST COMPUTER SPYWARE ACT

   22947.  This chapter shall be known as and may be cited as the
Consumer Protection Against Computer Spyware Act.
   22947.1.  For purposes of this chapter, "spyware" means an
executable program that automatically and without the control of a
computer user gathers and transmits to the provider of the program or
to a third party either of the following types of information:
   (a) Personal information or data of a user.
   (b) Data regarding computer usage, including, but not limited to,
which Internet sites are or have been visited by a user.
   22947.2.  (a) A person or entity that provides computer software
containing spyware to a computer in California shall disclose the
following information to the recipient of the software:
   (1) That the software contains spyware.
   (2) What the spyware does.
   (b) The statement required by subdivision (a) shall be in at least
18-point type and shall be included in the first appearing of the
following:
   (1) The software's opening download.
   (2) The Web site of the provider or of the software.
   (3) The initial installation screen for the software.
   22947.3.  (a) (1) In addition to any other remedies provided by
this chapter or by any other provision of law, a person who receives
computer software containing spyware in violation of Section 22947.2,
an Internet service provider, or the Attorney General may bring an
action against the violator to recover either or both of the
following:
   (A) Actual damages.
   (B) Liquidated damages of one thousand dollars ($1,000) for each
instance of software containing spyware provided in violation of
Section 22947.2.
   (2) The recipient, an Internet service provider, or the Attorney
General, if the prevailing plaintiff, may also recover reasonable
attorney's fees and costs.
   (3) There shall not be a cause of action against an Internet
service provider that is only involved in the routine transmission of
the software containing spyware over its computer network.
   (b) If the court finds that the defendant established and
implemented, with due care, practices and procedures reasonably
designed to effectively distribute the statement required by Section
22947.2, the court shall reduce the liquidated damages recoverable
under subdivision (a) to a maximum of one hundred dollars ($100) for
each provision of software containing spyware.
   22947.4.  (a) A person or entity may not transmit computer
software containing spyware to a computer in California in violation
of the policy of the recipient's Internet service provider.
   (b) (1) In addition to any other action available under law, an
Internet service provider whose policy on computer spyware
transmission is violated may bring a civil action to recover the
actual monetary loss suffered by that provider by reason of that
violation, or liquidated damages of fifty dollars ($50) for each
transmission of software containing spyware in violation of this
section, up to a maximum of twenty-five thousand dollars ($25,000)
per day, whichever amount is greater.
   (2) In any action brought pursuant to paragraph (1), the court may
award reasonable attorney's fees to a prevailing party.
   (3) In any action brought pursuant to paragraph (1), the Internet
service provider shall be required to establish as an element of its
cause of action that, prior to the alleged violation, the defendant
had actual notice of both of the following:
   (A) The Internet service provider's policy on the transmission of
software containing spyware.
   (B) The fact that the defendant's transmission of software
containing spyware would use or cause to be used the Internet service
provider's equipment.
   (4) (A) An Internet service provider who has brought an action
against a party under Section 22947.3 may not bring an action against
that party under this section for the same transmission of software
containing spyware.
   (B) An Internet service provider who has brought an action against
a party for a violation of this section may not bring an action
against that party under Section 22947.3 for the same transmission of
software containing spyware.
   22947.9.  The provisions of this chapter are severable.  If any
provision of this chapter or its application is held invalid, that
invalidity shall not affect any other provision or application that
can be given effect without the invalid provision or application.