SB 140: "An Act relating to spyware and unsolicited Internet advertising."
00 SENATE BILL NO. 140 01 "An Act relating to spyware and unsolicited Internet advertising." 02 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 03 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 04 to read: 05 FINDINGS, INTENT, AND PURPOSE. (a) The legislature finds that computer users 06 have recently encountered a barrage of unwanted software programs, known as "spyware," 07 that attempt to take over their computers. Typically, spyware programs monitor the user's 08 activities to determine what Internet websites the user is visiting. After identifying products 09 or services that might interest the user, the spyware program shows pop-up advertisements 10 that encourage the user to make purchases from companies that have paid advertising fees to 11 the spyware provider. 12 (b) The legislature finds that these pop-ups advertisements are misleading and 13 anticompetitive and intrude into a zone properly reserved for the website the user specifically 14 requested. 15 (c) It is the intent of the legislature in this Act to prohibit spyware pop-up
01 advertisements on computers in this state. By prohibiting these pop-up advertisements, the 02 legislature in this Act seeks to undermine the economic incentives that encourage spyware 03 providers to sneak onto users' computers. 04 * Sec. 2. AS 45.45 is amended by adding new sections to read: 05 Article 10A. Deceptive Acts or Practices Relating to Spyware. 06 Sec. 45.45.792. Prohibited conduct relating to spyware. (a) It is unlawful 07 for a person who is not the owner or authorized user of a computer to engage in 08 deceptive acts or practices described in this subsection using spyware. Deceptive acts 09 or practices under this subsection are 10 (1) causing a pop-up advertisement to be shown on the computer 11 screen of a user by means of a spyware program, knowing or with reckless disregard 12 for the risk that the pop-up advertisement is 13 (A) displayed in response to a user accessing a specific 14 (i) mark; or 15 (ii) Internet website address; and 16 (B) purchased or acquired by a person other than 17 (i) the mark owner; 18 (ii) a licensee of the mark; 19 (iii) an authorized agent of the owner of the mark; 20 (iv) an authorized user of the mark; or 21 (v) a person advertising the lawful sale, lease, or 22 transfer of products bearing the mark through a secondary marketplace 23 for the sale of goods or services; and 24 (2) purchasing advertising that violates (1) of this subsection if the 25 purchaser of the advertising 26 (A) receives notice of the violation from the mark owner; and 27 (B) fails to stop the violation. 28 (b) It is not a violation of this section for a person to display a pop-up 29 advertisement under (a)(1) of this section if the spyware program includes a function 30 that 31 (1) requests information about the user's state of residence before
01 displaying a pop-up advertisement to the user, and the user indicates a residence 02 outside this state; 03 (2) implements a reasonably reliable automated system to determine 04 the user's likely geographic location, according to current best practices in the field, 05 and the system determines that it is unlikely that the user is located in this state; and 06 (3) does not prompt, ask, or otherwise encourage a user to indicate a 07 residence outside this state. 08 (c) It is not a violation of (a)(2) of this section if a person purchases 09 advertising that complies with the requirements of (b) of this section. 10 Sec. 45.45.794. Removal of potentially harmful software. Notwithstanding 11 AS 45.45.792, a provider of computer software or an interactive computer service 12 may, after notice to a customer, remove from or disable a program on the customer's 13 computer that is used to 14 (1) violate AS 45.45.792; or 15 (2) collect information from the computer of the customer without the 16 customer's knowledge. 17 Sec. 45.45.798. Definitions. In AS 45.45.792 - 45.45.798, 18 (1) "interactive computer service" means an information service, 19 system, or access software provider that provides or enables computer access by 20 multiple users to a computer server; "interactive computer service" includes an 21 Internet or online service provider or a service or system providing access to the 22 Internet, including a system operated by a library or educational institution; 23 (2) "Internet" means the combination of computer systems or networks 24 that make up the international network for interactive communications services, 25 including remote logins, file transfer, electronic mail, and newsgroups; 26 (3) "Internet or online service provider" means an interactive computer 27 service that provides software or other material that enables a person to transmit, 28 receive, display, forward, cache, search, subset, organize, reorganize, or translate 29 content; select or analyze content; or allow or disallow content; 30 (4) "mark" means a registered trademark, registered service mark, or 31 registered domain name in an Internet website address that is owned, licensed, or
01 lawfully used by a person doing business in this state; 02 (5) "pop-up advertisement" means material offering for sale or 03 advertising the availability or quality of a property, good, or service that is displayed 04 on a user's computer screen, without any request or consent of the user, separate from 05 an Internet website that a user intentionally accesses; 06 (6) "spyware" 07 (A) means software on the computer of a user who resides in 08 the state that 09 (i) collects information about an Internet website at the 10 time the Internet website is being viewed in the state, unless the 11 Internet website is the Internet website of the person who provides the 12 software; and 13 (ii) uses the information collected contemporaneously 14 to display a pop-up advertisement on the computer; 15 (B) does not mean 16 (i) an Internet website; 17 (ii) a service operated by an Internet or online service 18 provider accessed by a user; 19 (iii) software designed and installed primarily to 20 prevent, diagnose, detect, or resolve technical difficulties or prevent 21 fraudulent activities; 22 (iv) software designed and installed to protect the 23 security of the user's computer from unauthorized access or alteration; 24 (v) software or data that reports information to an 25 Internet website previously stored by the Internet website on the user's 26 computer, including a cookie; in this sub-subparagraph, "cookie" 27 means a text file that is placed on a computer to record information that 28 can be read or recognized when the user of the computer later accesses 29 a particular Internet website, online location, or online service by an 30 interactive computer service, Internet website, or a third party acting on 31 behalf of an interactive computer service or an Internet website;
01 (vi) software that provides the user with the capability 02 to search the Internet; 03 (vii) software installed on the user's computer with the 04 consent of the user the primary purpose of which is to prevent access to 05 certain Internet content; 06 (7) "user" means the owner or authorized user of a computer. 07 * Sec. 3. AS 45.50.471(b) is amended by adding a new paragraph to read: 08 (51) violating AS 45.45.792 (deceptive acts or practices relating to 09 spyware).