Bill S244-2013

Establishes the crime of unlawful use of spyware and malware

Establishes the crime of unlawful use of spyware and malware; 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.

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  • Jan 8, 2014: REFERRED TO CODES
  • Jan 9, 2013: REFERRED TO CODES

Memo

BILL NUMBER:S244

TITLE OF BILL: An act to amend the penal law, in relation to establishing the crime of unlawful use of spyware and malware

PURPOSE: The act aims to protect the privacy of computer users by banning the dissemination of computer spyware and malware without the authorization of the owner of a computer.

SUMMARY OF PROVISIONS: Section 1 adds section 156.40 to the Penal Law to ban the use of computer spyware and malware, where spyware and malware are a computer program when downloaded and functioning, transmits information to a third party without the authorization of a computer user. Section 2 establishes an effective date of the first of November next succeeding date on which it shall have become a law.

JUSTIFICATION: Computer users download information from the internet without truly understanding what functions the programs will have. Many times computer users will encounter the opportunity to download a computer program from the internet that they believe will give them an innocuous program that will help them organize their lives. However, it sometimes is not known to the computer user what other functions the computer program will actually have and these seemingly harmless programs may also send information to a third party such as a marketing firm, or worse a person who wishes to commit identity theft. Key-logging computer programs record all of the keystrokes that a computer user makes while using a computer. Because many use computers for banking and credit card transactions, these programs allow for criminals to commit identity theft. Therefore, this legislation includes (but is not limited to) key-logging within the spyware ban.

PRIOR LEGISLATIVE HISTORY: S.4948 of 2007 04/24/07 Referred to Codes S.1670 of 2011 01/11/11 Referred to Codes 01/04/12 Referred to Codes

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.

EFFECTIVE DATE: This act shall take effect on the first of November next succeeding the date on which it shall have become a law.


Text

STATE OF NEW YORK ________________________________________________________________________ 244 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________
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 156.40 to read as follows: S 156.40 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.
(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.
(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
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.

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