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Managing America: Internet

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Week Ending June 8, 2006

H.R.964 To protect users of the Internet from unknowing transmission of their personally identifiable information through spyware programs, and for other purposes.

This bill mirrors HR 1525 passed by the House in May but adds elements to clarify

This fairly reoccurring bill aims to protect personal computer users from identity theft through spyware and other programs that take control of a computer to send information back to the controlling computer. The information captured includes personal identification information as well as internet activity. The law applies to protected computers that, for the most part are computers used by individuals.

The bill allows for information about a user’s Internet activity if that information is only  information regarding Web pages within a particular Website or, in the case of any Internet-based search engine, user supplied search terms necessary to complete the search and return the results to the protected computer.

This bill goes further by requiring that any program attempting to collect allowed data must first announce themselves and ask permission to proceed. The current language proposed is “This program will collect and transmit information about you. Do you accept?'

With regard to information collection programs the language is likely to be “This program will collect information about Web pages you access and will use that information to display advertising on your computer. Do you accept?”

And other wording is “This program will collect and transmit information about you and will collect information about Web pages you access and use that information to display advertising on your computer. Do you accept?”

The name of the information collection program, a logo or trademark used to identify the program or a statement or other information that clearly identifies the program must be provided.

The notice must provide the user the opportunity to grant or deny the consent and to abandon or cancel transmission. The user must also have the right to access a page before granting or denying consent that explains a clear description of the types of information to be collected and sent by the collector, and the purpose for which the information is to be collected or sent.

The information collecting program must allow a user to remove or disable the installed program in a way that is easily identifiable and can be performed with undue effort or knowledge.

Embedded advertisements on web pages are not required to follow the procedures.

A telecommunications carrier, a provider of information service or interactive computer service, a cable operator, or a provider of transmission capability shall not be liable for transmitting, routing, hosting, storing or providing connections for information collection programs.

A study is ordered to consider such regulations on fields provided on Website for information intake. Another study would look at application of this type of law to cookies in the delivery of display advertising and how that may lead to transmitting third-party personally identifiable information. And the matter of whether or not existing programs imbedded before this bill becomes law will be studied.

Fines are extensive ranging from $1 million to $3 million. Civil penalties, however are not provided in this bill unless the collecting activity was committed with actual knowledge or fairly implied knowledge that such an act is deceptive or a violation of this Act. In that case the court will look to the degree of culpability, prior conduct, ability to pay and the effect on a business.

As is the case in previous bills, the law would not apply to law enforcement activities and network security, with some conditions.

The bill, if it becomes law, would supercede State authority on the matter.

Sponsor:  Rep. Edolphus Towns (D-NY-10)

Vote: Passed house 368 to 48 June 6, 2007 (RC 434)

Cost to the taxpayers: “Implementing H.R. 964 would increase spending by the FTC to enforce regulations prohibiting the unlawful use of spyware, subject to the availability of appropriated funds. Based on information from the agency, CBO estimates that such activities would cost about $1 million in 2008 and about $7 million over the 2008-2012 period”

Earmark Certification:   Regarding compliance with clause 9 of rule XXI of the Rules of the House of Representatives, H.R. 964 does not contain any congressional earmarks, limited tax benefits, or limited tariff benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.

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