text: 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.
target: 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.
feat_title: Spyware Control and Privacy Protection Act of 2000