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H.B. 323 Enrolled
This bill enacts provisions within the Commerce and Trade Code relating to certain uses
. defines terms;
. prohibits spyware from delivering advertisements to a computer under certain
. requires spyware to provide removal procedures;
. allows a website, trademark, or copyright owner to bring an action to enforce the
. requires the Division of Consumer Protection to collect complaints.
Monies Appropriated in this Bill:
Other Special Clauses:
Utah Code Sections Affected:
13-39-101, Utah Code Annotated 1953
13-39-102, Utah Code Annotated 1953
13-39-201, Utah Code Annotated 1953
13-39-301, Utah Code Annotated 1953
13-39-302, Utah Code Annotated 1953
13-39-401, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 13-39-101 is enacted to read:
This chapter is known as the "Spyware Control Act."
Section 2. Section 13-39-102 is enacted to read:
As used in this chapter:
(1) "Context based triggering mechanism" means a software based trigger or program
residing on a consumer's computer that displays an advertisement according to:
(a) the current Internet website accessed by a user; or
(b) the contents or characteristics of the current Internet website accessed by a user.
(2) "Division" means the Division of Consumer Protection in the Department of
(3) "Internet" is as defined in the Internet Tax Freedom Act, Pub. L. No. 105-277.
(4) Except as provided in Subsection (5), "spyware" means software residing on a
(a) monitors the computer's usage;
(b) (i) sends information about the computer's usage to a remote computer or server; or
(ii) displays or causes to be displayed an advertisement in response to the computer's
usage if the advertisement:
(A) does not clearly identify the full legal name of the entity responsible for delivering the
(B) uses a federally registered trademark as a trigger for the display of the advertisement
by a person other than:
(I) the trademark owner;
(II) an authorized agent or licensee of the trademark owner; or
(III) a recognized Internet search engine;
(C) uses a triggering mechanism to display the advertisement according to the Internet
websites accessed by a user; or
(D) uses a context based triggering mechanism to display the advertisement that partially
or wholly covers or obscures paid advertising or other content on an Internet website in a way
that interferes with a user's ability to view the Internet website; and
(c) does not:
(i) obtain the consent of the user, at the time of, or after installation of the software but
before the software does any of the actions described in Subsection (4)(b):
(A) to a license agreement:
(I) presented in full; and
(II) written in plain language;
(B) to a notice of the collection of each specific type of information to be transmitted as a
result of the software installation;
(C) to a clear and representative full-size example of each type of advertisement that may
(D) to a truthful statement of the frequency with which each type of advertisement may
be delivered; and
(E) for each type of advertisement delivered by the software, a clear description of a
method by which a user may distinguish the advertisement by its appearance from an
advertisement generated by other software services; and
(ii) provide a method:
(A) by which a user may quickly and easily disable and remove the software from the
(B) that does not have other effects on the non-affiliated parts of the user's computer; and
(C) that uses obvious, standard, usual, and ordinary methods for removal of computer
(5) Notwithstanding Subsection (4), "spyware" does not include:
(a) software designed and installed solely to diagnose or resolve technical difficulties;
(b) software or data that solely report to an Internet website information previously
stored by the Internet website on the user's computer, including:
(ii) HTML code; or
(iii) Java Scripts; or
(c) an operating system.
(6) "Usage" means:
(a) the Internet websites accessed by a user;
(b) the contents or characteristics of the Internet websites accessed by a user;
(c) a user's personal information, including:
(i) a first and last name of a user, whether:
(A) given at birth or adoption;
(B) assumed; or
(C) legally changed;
(ii) any of the following with respect to a user's home or other physical address:
(A) the street name;
(B) the name of the city or town; or
(C) the zip code;
(iii) an electronic mail address;
(iv) a telephone number;
(v) a Social Security number;
(vi) any personal identification number;
(vii) a credit card number;
(viii) any access code associated with a credit card;
(ix) a date of birth, birth certificate number, or place of birth; or
(x) a password or access code; or
(d) a user's submission to forms or Internet websites.
(7) "User" means:
(a) a computer owner; or
(b) a person who accesses an Internet website.
Section 3. Section 13-39-201 is enacted to read:
13-39-201. Prohibited conduct.
(1) A person may not:
(a) install spyware on another person's computer;
(b) cause spyware to be installed on another person's computer; or
(c) use a context based triggering mechanism to display an advertisement that partially or
wholly covers or obscures paid advertising or other content on an Internet website in a way that
interferes with a user's ability to view the Internet website.
(2) It is not a defense to a violation of this section that a user may remove or hide an
Section 4. Section 13-39-301 is enacted to read:
13-39-301. Private action.
(1) An action for a violation of this chapter may be brought:
(a) against a person who:
(i) violates this chapter; or
(ii) causes a violation of this chapter; and
(b) by any of the following who are adversely affected by a violation of this chapter:
(i) an Internet website owner or registrant;
(ii) a trademark or copyright owner; or
(iii) an authorized advertiser on an Internet website.
(2) In an action under Subsection (1), a person may:
(a) obtain an injunction against committing any further violation of this chapter; and
(b) recover the greater of:
(i) actual damages; or
(ii) $10,000 for each separate violation of this chapter.
(3) In an action under Subsection (1), a court may:
(a) increase the damages up to three times the damages allowed by Subsection (2) if the
court finds the defendant willfully or knowingly violated this chapter; and
(b) award costs and reasonable attorney fees to a prevailing party.
(4) For purposes of this section, a separate violation occurs for each individual
occurrence that results in the display of an advertisement described in Subsection
Section 5. Section 13-39-302 is enacted to read:
13-39-302. Limitations on actions.
(1) A person may not bring an action for a violation of this chapter against an Internet
service provider for the routine transmission of:
(a) security information; or
(b) information that contains an advertisement violating this chapter.
(2) A person may not bring a class action under this chapter.
Section 6. Section 13-39-401 is enacted to read:
13-39-401. Information gathering -- Evaluations.
The division shall:
(1) establish procedures by which a person may report a violation of this chapter to the
(a) an Internet website; and
(b) a toll-free telephone number; and
(2) make recommendations to the Public Utilities and Technology Interim Committee if
the division finds a need for additional provisions to this chapter.
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