Florida Senate - 2009                        COMMITTEE AMENDMENT
       Bill No. SB 164
       
       
       
       
       
       
                                Barcode 146914                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: FAV            .                                
                  02/19/2009           .                                
                                       .                                
                                       .                                
                                       .                                
       —————————————————————————————————————————————————————————————————




       —————————————————————————————————————————————————————————————————       
       
       The Committee on Commerce (Rich) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2         
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 815.03, Florida Statutes, is amended to
    6  read:
    7         815.03 Definitions.—As used in this chapter, unless the
    8  context clearly indicates otherwise:
    9         (1) “Access” means to approach, instruct, communicate with,
   10  store data in, retrieve data from, or otherwise make use of any
   11  resources of a computer, computer system, or computer network.
   12         (2)“Cause to be copied” means to distribute or transfer
   13  computer software or any component thereof. The term does not
   14  include:
   15         (a)Transmission, routing, provision of intermediate
   16  temporary storage, or caching of software;
   17         (b)A storage or hosting medium, such as a compact disk,
   18  website, or computer server through which the software was
   19  distributed by a third party; or
   20         (c)An information-location tool, such as a directory,
   21  index, reference, pointer, or hypertext link, through which the
   22  user of the computer locates software.
   23         (3)(2) “Computer” means an internally programmed, automatic
   24  device that performs data processing.
   25         (4)(3) “Computer contaminant” means any set of computer
   26  instructions designed to modify, damage, destroy, record, or
   27  transmit information within a computer, computer system, or
   28  computer network without the intent or permission of the owner
   29  of the information. The term includes, but is not limited to, a
   30  group of computer instructions commonly called viruses or worms
   31  which are self-replicating or self-propagating and which are
   32  designed to contaminate other computer programs or computer
   33  data; consume computer resources; modify, destroy, record, or
   34  transmit data; or in some other fashion usurp the normal
   35  operation of the computer, computer system, or computer network.
   36         (5)(4) “Computer network” means any system that provides
   37  communications between one or more computer systems and its
   38  input or output devices, including, but not limited to, display
   39  terminals and printers that are connected by telecommunication
   40  facilities.
   41         (6)(5) “Computer program or computer software” means a set
   42  of instructions or statements and related data which, when
   43  executed in actual or modified form, cause a computer, computer
   44  system, or computer network to perform specified functions.
   45         (7)(6) “Computer services” include, but are not limited to,
   46  computer time; data processing or storage functions; or other
   47  uses of a computer, computer system, or computer network.
   48         (8)(7) “Computer system” means a device or collection of
   49  devices, including support devices, one or more of which contain
   50  computer programs, electronic instructions, or input data and
   51  output data, and which perform functions, including, but not
   52  limited to, logic, arithmetic, data storage, retrieval,
   53  communication, or control. The term does not include calculators
   54  that are not programmable and that are not capable of being used
   55  in conjunction with external files.
   56         (9)“Computer virus” means a computer program or other set
   57  of instructions that is designed to degrade the performance of
   58  or disable a computer or computer network and is designed to
   59  have the ability to replicate itself on other computers or
   60  computer networks without the authorization of the owners of
   61  those computers or computer networks.
   62         (10)“Damage” means any significant impairment to the
   63  integrity or availability of data, software, a system, or
   64  information.
   65         (11)(8) “Data” means a representation of information,
   66  knowledge, facts, concepts, computer software, computer
   67  programs, or instructions. Data may be in any form, in storage
   68  media or stored in the memory of the computer, or in transit or
   69  presented on a display device.
   70         (12)“Deceptive” means any of the following:
   71         (a)A materially false or fraudulent statement.
   72         (b)A statement or description that intentionally omits or
   73  misrepresents material information in order to deceive an owner
   74  or operator of a computer.
   75         (c)A material failure to provide a notice to an owner or
   76  operator regarding the installation or execution of computer
   77  software for the purpose of deceiving the owner or operator.
   78         (13)“Execute,” when used with respect to computer
   79  software, means the performance of the functions or the carrying
   80  out of the instructions of the computer software.
   81         (14)(9) “Financial instrument” means any check, draft,
   82  money order, certificate of deposit, letter of credit, bill of
   83  exchange, credit card, or marketable security.
   84         (15)(10) “Intellectual property” means data, including
   85  programs.
   86         (16)“Internet” means the global information system that is
   87  logically linked together by a globally unique address space
   88  based on the Internet protocol (IP), or its subsequent
   89  extensions, and that is able to support communications using the
   90  transmission control protocol/Internet protocol (TCP/IP) suite,
   91  or its subsequent extensions, or other IP-compatible protocols,
   92  and that provides, uses, or makes accessible, publicly or
   93  privately, high-level services layered on the communications and
   94  related infrastructure described in this chapter.
   95         (17)“Owner or operator” means the owner or lessee of a
   96  computer, or a person using such computer with the owner or
   97  lessee's authorization, but does not include a person who owned
   98  a computer before the first retail sale of the computer.
   99         (18)“Message” means a graphical, text, voice, or audible
  100  communication presented to an authorized user of a computer.
  101         (19)“Person” means any individual, partnership,
  102  corporation, limited liability company, or other organization,
  103  or any combination thereof.
  104         (20)“Personally identifiable information” means any of the
  105  following information if it allows the entity holding the
  106  information to identify the owner or operator of a computer:
  107         (a)The first name or first initial in combination with the
  108  last name.
  109         (b)A home or other physical address including street name.
  110         (c)Personal identification code in conjunction with a
  111  password required to access an identified account, other than a
  112  password, personal identification number, or other
  113  identification number transmitted by an authorized user to the
  114  issuer of the account or its agent.
  115         (d)Social security number, tax identification number,
  116  driver's license number, passport number, or any other
  117  government-issued identification number.
  118         (e)Account balance, bank account number, or credit card
  119  numbers, overdraft history, or payment history that personally
  120  identifies an owner or operator of a computer.
  121         (21)(11) “Property” means anything of value as defined in
  122  s. 812.011 and includes, but is not limited to, financial
  123  instruments, information, including electronically produced data
  124  and computer software and programs in either machine-readable or
  125  human-readable form, and any other tangible or intangible item
  126  of value.
  127         Section 2. Section 815.051, Florida Statutes, is created to
  128  read:
  129         815.051Prohibitions; use of software.—A person who is not
  130  an owner or operator of a computer may not cause computer
  131  software to be copied on a computer knowingly or with conscious
  132  avoidance of actual knowledge or willfully, and without
  133  authorization, or to use such software to do any of the
  134  following:
  135         (1)Modify, through deceptive means, settings of a computer
  136  which control any of the following:
  137         (a)The webpage that appears when an owner or operator
  138  launches an Internet browser or similar computer software used
  139  to access and navigate the Internet.
  140         (b)The default provider or web proxy that an owner or
  141  operator uses to access or search the Internet.
  142         (c)An owner's or an operator's list of bookmarks used to
  143  access web pages.
  144         (2)Collect, through deceptive means, personally
  145  identifiable information through any of the following means:
  146         (a)The use of a keystroke-logging function that records
  147  all or substantially all keystrokes made by an owner or operator
  148  of a computer and transfers that information from the computer
  149  to another person.
  150         (b)In a manner that correlates personally identifiable
  151  information with data regarding all or substantially all of the
  152  websites visited by an owner or operator, other than websites
  153  operated by the person providing the software, if the computer
  154  software was installed in a manner designed to conceal from all
  155  authorized users of the computer the fact that the software is
  156  being installed.
  157         (c)By extracting from the hard drive of an owner's or an
  158  operator's computer, an owner's or an operator's social security
  159  number, tax identification number, driver's license number,
  160  passport number, any other government-issued identification
  161  number, account balances, bank account numbers or credit card
  162  numbers, or overdraft history for a purpose unrelated to any of
  163  the purposes of the software or service described to an
  164  authorized user.
  165         (3)Prevent, through deceptive means, an owner's or an
  166  operator's reasonable efforts to block the installation of or
  167  execution of, or to disable, computer software by causing
  168  computer software that the owner or operator has properly
  169  removed or disabled to automatically reinstall or reactivate on
  170  the computer without the authorization of an authorized user.
  171         (4)Deceptively misrepresent that computer software will be
  172  uninstalled or disabled by an owner's or an operator's action.
  173         (5)Through deceptive means, remove, disable, or render
  174  inoperative security, antispyware, or antivirus computer
  175  software installed on an owner's or an operator's computer.
  176         (6)Enable the use of an owner's or an operator's computer
  177  to do any of the following:
  178         (a)Access or use a modem or Internet service for the
  179  purpose of causing damage to an owner's or an operator's
  180  computer or causing an owner or operator, or a third party
  181  affected by such conduct, to incur financial charges for a
  182  service that the owner or operator did not authorize.
  183         (b)Open multiple, sequential, or stand-alone messages in
  184  an owner's or an operator's computer without the authorization
  185  of an owner or operator and with knowledge that a reasonable
  186  computer user could not close the messages without turning off
  187  the computer or closing the software application in which the
  188  messages appear; however, this paragraph does not apply to
  189  communications originated by the computer’s operating system,
  190  originated by a software application that the user chooses to
  191  activate, originated by a service provider that the user chooses
  192  to use, or presented for any of the purposes described in s.
  193  815.06(6).
  194         (c)Transmit or relay commercial electronic mail or a
  195  computer virus from the computer, if the transmission or
  196  relaying is initiated by a person other than the authorized user
  197  and without the authorization of an authorized user.
  198         (7)Use deceptive means to modify any of the following
  199  settings related the computer’s access to, or use of, the
  200  Internet:
  201         (a)Settings that protect information about an owner or
  202  operator for the purpose of obtaining personally identifiable
  203  information of the owner or operator.
  204         (b)Security settings for the purpose of causing damage to
  205  a computer.
  206         (c)Settings that protect the computer from the uses
  207  identified in subsection (6).
  208         (8)Use deceptive means to prevent, without the
  209  authorization of an owner or operator, an owner's or an
  210  operator's reasonable efforts to block the installation of, or
  211  to disable, computer software by doing any of the following:
  212         (a)Presenting the owner or operator with an option to
  213  decline installation of computer software with knowledge that,
  214  when the option is selected by the authorized user, the
  215  installation nevertheless proceeds.
  216         (b)Falsely representing that computer software has been
  217  disabled.
  218         (c)Requiring in a deceptive manner the user to access the
  219  Internet to remove the software with knowledge or reckless
  220  disregard of the fact that the software frequently operates in a
  221  manner that prevents the user from accessing the Internet.
  222         (d) Changing the name, location, or other designation
  223  information of the software for the purpose of preventing an
  224  authorized user from locating the software in order to remove
  225  it.
  226         (e)Using randomized or deceptive filenames, directory
  227  folders, formats, or registry entries for the purpose of
  228  avoiding detection and removal of the software by an authorized
  229  user.
  230         (f)Causing the installation of software in a particular
  231  computer directory or computer memory for the purpose of evading
  232  authorized users’ attempts to remove the software from the
  233  computer.
  234         (g)Requiring, without the authority of the owner of the
  235  computer, that an authorized user obtain a special code or
  236  download software from a third party in order to uninstall the
  237  software.
  238         Section 3. Section 815.053, Florida Statutes, is created to
  239  read:
  240         815.053Other prohibitions.—A person who is not an owner or
  241  operator of a computer may not do any of the following with
  242  regard to the computer:
  243         (1)Induce an owner or operator to install a computer
  244  software component onto the owner's or operator's computer by
  245  deceptively misrepresenting that installing computer software is
  246  necessary for security or privacy reasons or in order to open,
  247  view, or play a particular type of content.
  248         (2)Using deceptive means to cause the execution of a
  249  computer software component with the intent of causing the
  250  computer to use such component in a manner that violates any
  251  other provision of this chapter.
  252         Section 4. Section 815.055, Florida Statutes, is created to
  253  read:
  254         815.055Exceptions.—
  255         (1)Sections 815.051 and 815.053 do not apply to the
  256  monitoring of, or interaction with, an owner's or an operator’s
  257  Internet or other network connection, service, or computer by a
  258  telecommunications carrier, cable operator, computer hardware or
  259  software provider, or provider of information service or
  260  interactive computer service for purposes of network or computer
  261  security, diagnostics, technical support, maintenance, repair,
  262  network management, authorized updates of computer software or
  263  system firmware, authorized remote system management, or
  264  detection or prevention of the unauthorized use of, or
  265  fraudulent or other illegal activities in connection with, a
  266  network, service, or computer software, including scanning for
  267  and removing computer software proscribed under this chapter.
  268         (2)This section does not provide a defense to liability
  269  under the common law or any other state or federal law, and may
  270  not be construed to be an affirmative grant of authority to
  271  engage in any of the activities listed in this section.
  272         (3)This section does not impose liability on any
  273  communications service providers as defined in s. 202.11(2),
  274  commercial mobile service providers, or providers of information
  275  services, including, but not limited to, Internet access service
  276  providers and hosting service providers, if they provide the
  277  transmission, storage, or caching of electronic communications
  278  or messages of others or provide other related
  279  telecommunications, commercial mobile radio service, or
  280  information services used by others in violation of this
  281  chapter. This exemption from liability is consistent with and in
  282  addition to any liability exemption provided under 47 U.S.C. s.
  283  230.
  284         (4)This section does not prohibit or criminalize the use
  285  of software by parents or guardians to monitor Internet or
  286  computer usage of their minor children.
  287         Section 5. Section 815.06, Florida Statutes, is amended to
  288  read:
  289         815.06 Offenses against computer users.—
  290         (1) Whoever willfully, knowingly, and without
  291  authorization:
  292         (a) Accesses or causes to be accessed any computer,
  293  computer system, or computer network;
  294         (b) Disrupts or denies or causes the denial of computer
  295  system services to an authorized user of such computer system
  296  services, which, in whole or part, is owned by, under contract
  297  to, or operated for, on behalf of, or in conjunction with
  298  another;
  299         (c) Destroys, takes, injures, or damages equipment or
  300  supplies used or intended to be used in a computer, computer
  301  system, or computer network;
  302         (d) Destroys, injures, or damages any computer, computer
  303  system, or computer network; or
  304         (e)Violates s. 815.051 or s. 815.053; or
  305         (f)(e) Introduces any computer contaminant into any
  306  computer, computer system, or computer network,
  307  commits an offense against computer users.
  308         (2)(a) Except as provided in paragraphs (b) and (c),
  309  whoever violates subsection (1) commits a felony of the third
  310  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  311  775.084.
  312         (b) Whoever violates subsection (1) and:
  313         1. Damages a computer, computer equipment, computer
  314  supplies, a computer system, or a computer network, and the
  315  monetary damage or loss incurred as a result of the violation is
  316  $5,000 or greater;
  317         2. Commits the offense for the purpose of devising or
  318  executing any scheme or artifice to defraud or obtain property;
  319  or
  320         3. Interrupts or impairs a governmental operation or public
  321  communication, transportation, or supply of water, gas, or other
  322  public service,
  323  commits a felony of the second degree, punishable as provided in
  324  s. 775.082, s. 775.083, or s. 775.084.
  325         (c) Whoever violates subsection (1) and the violation
  326  endangers human life commits a felony of the first degree,
  327  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  328         (3) Whoever willfully, knowingly, and without authorization
  329  modifies equipment or supplies used or intended to be used in a
  330  computer, computer system, or computer network commits a
  331  misdemeanor of the first degree, punishable as provided in s.
  332  775.082 or s. 775.083.
  333         (4)The Department of Legal Affairs or a state attorney may
  334  file a civil action on behalf of the people of this state for
  335  injunctive relief against any person or group violating
  336  subsection (1) to restrain the prohibited activity. The court
  337  may award court costs and reasonable attorney's fees to the
  338  prevailing party. The court may also impose a civil penalty that
  339  may not exceed $10,000 for each violation of subsection (1), and
  340  the total penalties may not exceed $1 million per defendant.
  341         (5)(4)(a) In addition to any other civil remedy available,
  342  the owner or lessee of the computer, computer system, computer
  343  network, computer program, computer equipment, computer
  344  supplies, or computer data may bring a civil action against any
  345  person convicted under this section for compensatory damages.
  346         (b) In any action brought under this subsection, the court
  347  may award reasonable attorney's fees to the prevailing party.
  348         (6)(5) Any computer, computer system, computer network,
  349  computer software, or computer data owned by a defendant which
  350  is used during the commission of any violation of this section
  351  or any computer owned by the defendant which is used as a
  352  repository for the storage of software or data obtained in
  353  violation of this section is subject to forfeiture as provided
  354  under ss. 932.701-932.704.
  355         (7)(6) This section does not apply to any person who
  356  accesses his or her employer's computer system, computer
  357  network, computer program, or computer data when acting within
  358  the scope of his or her lawful employment.
  359         (8)(7) For purposes of bringing a civil or criminal action
  360  under this section, a person who causes, by any means, the
  361  access to a computer, computer system, or computer network in
  362  one jurisdiction from another jurisdiction is deemed to have
  363  personally accessed the computer, computer system, or computer
  364  network in both jurisdictions.
  365         (9)This section does not prohibit a private litigant from
  366  filing a civil action for damages arising under this section.
  367         Section 5. This act shall take effect July 1, 2009.
  368         
  369  ================= T I T L E  A M E N D M E N T ================
  370         And the title is amended as follows:
  371         Delete everything before the enacting clause
  372  and insert:
  373         
  374                        A bill to be entitled                      
  375         An act relating to offenses against computer users;
  376         amending s. 815.03, F.S.; defining terms for purposes
  377         of the Florida Computer Crimes Act; creating s.
  378         815.051, F.S.; providing that a person who is not an
  379         owner or operator of a computer may not cause computer
  380         software to be copied on a computer knowingly or with
  381         conscious avoidance of actual knowledge or willfully,
  382         and without authorization, to undertake specified
  383         actions to a computer; creating s. 815.053, F.S.;
  384         prohibiting a person who is not an owner or operator
  385         of a computer from inducing an owner or operator to
  386         install a computer software component onto the owner's
  387         or operator's computer by deceptively misrepresenting
  388         that installing computer software is necessary for
  389         security or privacy reasons or by using deceptive
  390         means to cause the execution of a computer software
  391         component with the intent of causing the computer to
  392         use the component in a harmful manner; creating s.
  393         815.055, F.S.; providing exceptions; amending s.
  394         815.06, F.S.; providing that a violation of the act is
  395         a felony of the third degree; providing criminal
  396         penalties; providing enhanced criminal penalties under
  397         certain circumstances; authorizing the Department of
  398         Legal Affairs or a state attorney to file a civil
  399         action for injunctive relief against any person or
  400         group to restrain prohibited activities; authorizing a
  401         court to award court costs and attorney's fees to the
  402         prevailing party; permitting a court to impose a civil
  403         penalty not to exceed a stated amount for each offense
  404         against computer users; providing for civil actions by
  405         private litigants; providing an effective date.