Florida Senate - 2009                              CS for SB 164
       
       
       
       By the Committee on Commerce and Senator Ring
       
       
       
       
       577-02181A-09                                          2009164c1
    1                        A bill to be entitled                      
    2         An act relating to offenses against computer users;
    3         amending s. 815.03, F.S.; defining terms for purposes
    4         of the Florida Computer Crimes Act; creating s.
    5         815.051, F.S.; prohibiting a person who is not an
    6         owner or operator of a computer from causing computer
    7         software to be copied on a computer knowingly, with
    8         conscious avoidance of actual knowledge, or willfully
    9         and without authorization taking specified actions
   10         with respect to a computer; creating s. 815.053, F.S.;
   11         prohibiting a person who is not an owner or operator
   12         of a computer from inducing an owner or operator to
   13         install a computer software component onto the owner's
   14         or operator's computer by deceptively misrepresenting
   15         that installing computer software is necessary for
   16         security or privacy reasons or by using deceptive
   17         means to cause the execution of a computer software
   18         component with the intent of causing the computer to
   19         use the component in a harmful manner; creating s.
   20         815.055, F.S.; providing exceptions; amending s.
   21         815.06, F.S.; providing that a violation of the act is
   22         a felony of the third degree; providing criminal
   23         penalties; providing enhanced criminal penalties under
   24         certain circumstances; authorizing the Department of
   25         Legal Affairs or a state attorney to file a civil
   26         action for injunctive relief against any person or
   27         group to restrain prohibited activities; authorizing a
   28         court to award court costs and attorney's fees to the
   29         prevailing party; permitting a court to impose a civil
   30         penalty not to exceed a stated amount for each offense
   31         against computer users; providing for civil actions by
   32         private litigants; providing an effective date.
   33  
   34  Be It Enacted by the Legislature of the State of Florida:
   35  
   36         Section 1. Section 815.03, Florida Statutes, is amended to
   37  read:
   38         815.03 Definitions.—As used in this chapter, unless the
   39  context clearly indicates otherwise:
   40         (1) “Access” means to approach, instruct, communicate with,
   41  store data in, retrieve data from, or otherwise make use of any
   42  resources of a computer, computer system, or computer network.
   43         (2)“Cause to be copied” means to distribute or transfer
   44  computer software or any component thereof. The term does not
   45  include:
   46         (a)Transmission, routing, provision of intermediate
   47  temporary storage, or caching of software;
   48         (b)A storage or hosting medium, such as a compact disk,
   49  website, or computer server through which the software was
   50  distributed by a third party; or
   51         (c)An information-location tool, such as a directory,
   52  index, reference, pointer, or hypertext link, through which the
   53  user of the computer locates software.
   54         (3)(2) “Computer” means an internally programmed, automatic
   55  device that performs data processing.
   56         (4)(3) “Computer contaminant” means any set of computer
   57  instructions designed to modify, damage, destroy, record, or
   58  transmit information within a computer, computer system, or
   59  computer network without the intent or permission of the owner
   60  of the information. The term includes, but is not limited to, a
   61  group of computer instructions commonly called viruses or worms
   62  which are self-replicating or self-propagating and which are
   63  designed to contaminate other computer programs or computer
   64  data; consume computer resources; modify, destroy, record, or
   65  transmit data; or in some other fashion usurp the normal
   66  operation of the computer, computer system, or computer network.
   67         (5)(4) “Computer network” means any system that provides
   68  communications between one or more computer systems and its
   69  input or output devices, including, but not limited to, display
   70  terminals and printers that are connected by telecommunication
   71  facilities.
   72         (6)(5) “Computer program or computer software” means a set
   73  of instructions or statements and related data which, when
   74  executed in actual or modified form, cause a computer, computer
   75  system, or computer network to perform specified functions.
   76  “Computer software” means a sequence of instructions written in
   77  any programming language that is executed on a computer.
   78  “Computer software” does not include a data component of a web
   79  page that is not executable independently of the web page.
   80         (7)(6) “Computer services” include, but are not limited to,
   81  computer time; data processing or storage functions; or other
   82  uses of a computer, computer system, or computer network.
   83         (8)(7) “Computer system” means a device or collection of
   84  devices, including support devices, one or more of which contain
   85  computer programs, electronic instructions, or input data and
   86  output data, and which perform functions, including, but not
   87  limited to, logic, arithmetic, data storage, retrieval,
   88  communication, or control. The term does not include calculators
   89  that are not programmable and that are not capable of being used
   90  in conjunction with external files.
   91         (9)“Computer virus” means a computer program or other set
   92  of instructions designed to degrade the performance of or
   93  disable a computer or computer network and designed to have the
   94  ability to replicate itself on other computers or computer
   95  networks without the authorization of the owners of those
   96  computers or computer networks.
   97         (10)“Damage” means any significant impairment to the
   98  integrity or availability of data, software, a system, or
   99  information.
  100         (11)(8) “Data” means a representation of information,
  101  knowledge, facts, concepts, computer software, computer
  102  programs, or instructions. Data may be in any form, in storage
  103  media or stored in the memory of the computer, or in transit or
  104  presented on a display device.
  105         (12)“Deceptive” means any of the following:
  106         (a)A materially false or fraudulent statement.
  107         (b)A statement or description that intentionally omits or
  108  misrepresents material information in order to deceive an owner
  109  or operator of a computer.
  110         (c)A material failure to provide a notice to an owner or
  111  operator regarding the installation or execution of computer
  112  software for the purpose of deceiving the owner or operator.
  113         (13)“Execute,” when used with respect to computer
  114  software, means the performance of the functions or the carrying
  115  out of the instructions of the computer software.
  116         (14)(9) “Financial instrument” means any check, draft,
  117  money order, certificate of deposit, letter of credit, bill of
  118  exchange, credit card, or marketable security.
  119         (15)(10) “Intellectual property” means data, including
  120  programs.
  121         (16)“Internet” means the global information system that is
  122  logically linked together by a globally unique address space
  123  based on the Internet protocol (IP), or its subsequent
  124  extensions, that is able to support communications using the
  125  transmission control protocol/Internet protocol (TCP/IP) suite,
  126  or its subsequent extensions, or other IP-compatible protocols,
  127  and that provides, uses, or makes accessible, publicly or
  128  privately, high-level services layered on the communications and
  129  related infrastructure described in this chapter.
  130         (17)“Owner or operator” means the owner or lessee of a
  131  computer, or a person using such computer with the owner or
  132  lessee's authorization, but does not include a person who owned
  133  a computer before the first retail sale of the computer.
  134         (18)“Message” means a graphical, text, voice, or audible
  135  communication presented to an authorized user of a computer.
  136         (19)“Person” means any individual, partnership,
  137  corporation, limited liability company, or other organization,
  138  or any combination thereof.
  139         (20)“Personally identifiable information” means any of the
  140  following information if it allows the entity holding the
  141  information to identify the owner or operator of a computer:
  142         (a)The first name or first initial in combination with the
  143  last name.
  144         (b)A home or other physical address including street name.
  145         (c)Personal identification code in conjunction with a
  146  password required to access an identified account, other than a
  147  password, personal identification number, or other
  148  identification number transmitted by an authorized user to the
  149  issuer of the account or its agent.
  150         (d)Social security number, tax identification number,
  151  driver's license number, passport number, or any other
  152  government-issued identification number.
  153         (e)Account balance, bank account number, or credit card
  154  numbers, overdraft history, or payment history that personally
  155  identifies an owner or operator of a computer.
  156         (21)(11) “Property” means anything of value as defined in
  157  s. 812.011 and includes, but is not limited to, financial
  158  instruments, information, including electronically produced data
  159  and computer software and programs in either machine-readable or
  160  human-readable form, and any other tangible or intangible item
  161  of value.
  162         Section 2. Section 815.051, Florida Statutes, is created to
  163  read:
  164         815.051Prohibitions; use of software.—A person who is not
  165  an owner or operator of a computer may not cause computer
  166  software to be copied on a computer knowingly, with conscious
  167  avoidance of actual knowledge, or willfully, and without
  168  authorization, or to use such software to do any of the
  169  following:
  170         (1)Modify, through deceptive means, settings of a computer
  171  which control any of the following:
  172         (a)The webpage that appears when an owner or operator
  173  launches an Internet browser or similar computer software used
  174  to access and navigate the Internet.
  175         (b)The default provider or web proxy that an owner or
  176  operator uses to access or search the Internet.
  177         (c)An owner's or an operator's list of bookmarks used to
  178  access web pages.
  179         (2)Collect, through deceptive means, personally
  180  identifiable information through any of the following means:
  181         (a)The use of a keystroke-logging function that records
  182  all or substantially all keystrokes made by an owner or operator
  183  of a computer and transfers that information from the computer
  184  to another person.
  185         (b)In a manner that correlates personally identifiable
  186  information with data regarding all or substantially all of the
  187  websites visited by an owner or operator, other than websites
  188  operated by the person providing the software, if the computer
  189  software was installed in a manner designed to conceal from all
  190  authorized users of the computer the fact that the software is
  191  being installed.
  192         (c)By extracting from the hard drive of an owner's or an
  193  operator's computer, an owner's or an operator's social security
  194  number, tax identification number, driver's license number,
  195  passport number, any other government-issued identification
  196  number, account balances, bank account numbers or credit card
  197  numbers, or overdraft history for a purpose unrelated to any of
  198  the purposes of the software or service described to an
  199  authorized user.
  200         (3)Prevent, through deceptive means, an owner's or an
  201  operator's reasonable efforts to block the installation of or
  202  execution of, or to disable, computer software by causing
  203  computer software that the owner or operator has properly
  204  removed or disabled to automatically reinstall or reactivate on
  205  the computer without the authorization of an authorized user.
  206         (4)Deceptively misrepresent that computer software will be
  207  uninstalled or disabled by an owner's or an operator's action.
  208         (5)Through deceptive means, remove, disable, or render
  209  inoperative security, antispyware, or antivirus computer
  210  software installed on an owner's or an operator's computer.
  211         (6)Enable the use of an owner's or an operator's computer
  212  to do any of the following:
  213         (a)Access or use a modem or Internet service for the
  214  purpose of causing damage to an owner's or an operator's
  215  computer or causing an owner or operator, or a third party
  216  affected by such conduct, to incur financial charges for a
  217  service that the owner or operator did not authorize.
  218         (b)Open multiple, sequential, or stand-alone messages in
  219  an owner's or an operator's computer without the authorization
  220  of an owner or operator and with knowledge that a reasonable
  221  computer user could not close the messages without turning off
  222  the computer or closing the software application in which the
  223  messages appear; however, this paragraph does not apply to
  224  communications originated by the computer’s operating system,
  225  originated by a software application that the user chooses to
  226  activate, originated by a service provider that the user chooses
  227  to use, or presented for any of the purposes described in s.
  228  815.06(7).
  229         (c)Transmit or relay commercial electronic mail or a
  230  computer virus from the computer, if the transmission or
  231  relaying is initiated by a person other than the authorized user
  232  and without the authorization of an authorized user.
  233         (7)Use deceptive means to modify any of the following
  234  settings related the computer’s access to, or use of, the
  235  Internet:
  236         (a)Settings that protect information about an owner or
  237  operator for the purpose of obtaining personally identifiable
  238  information of the owner or operator.
  239         (b)Security settings for the purpose of causing damage to
  240  a computer.
  241         (c)Settings that protect the computer from the uses
  242  identified in subsection (6).
  243         (8)Use deceptive means to prevent, without the
  244  authorization of an owner or operator, an owner's or an
  245  operator's reasonable efforts to block the installation of, or
  246  to disable, computer software by doing any of the following:
  247         (a)Presenting the owner or operator with an option to
  248  decline installation of computer software with knowledge that,
  249  when the option is selected by the authorized user, the
  250  installation nevertheless proceeds.
  251         (b)Falsely representing that computer software has been
  252  disabled.
  253         (c)Requiring in a deceptive manner the user to access the
  254  Internet to remove the software with knowledge or reckless
  255  disregard of the fact that the software frequently operates in a
  256  manner that prevents the user from accessing the Internet.
  257         (d) Changing the name, location, or other designation
  258  information of the software for the purpose of preventing an
  259  authorized user from locating the software in order to remove
  260  it.
  261         (e)Using randomized or deceptive filenames, directory
  262  folders, formats, or registry entries for the purpose of
  263  avoiding detection and removal of the software by an authorized
  264  user.
  265         (f)Causing the installation of software in a particular
  266  computer directory or computer memory for the purpose of evading
  267  authorized users’ attempts to remove the software from the
  268  computer.
  269         (g)Requiring, without the authority of the owner of the
  270  computer, that an authorized user obtain a special code or
  271  download software from a third party in order to uninstall the
  272  software.
  273         Section 3. Section 815.053, Florida Statutes, is created to
  274  read:
  275         815.053Other prohibitions.—A person who is not an owner or
  276  operator of a computer may not do any of the following with
  277  regard to the computer:
  278         (1)Induce an owner or operator to install a computer
  279  software component onto the owner's or operator's computer by
  280  deceptively misrepresenting that installing computer software is
  281  necessary for security or privacy reasons or in order to open,
  282  view, or play a particular type of content.
  283         (2)Using deceptive means to cause the execution of a
  284  computer software component with the intent of causing the
  285  computer to use such component in a manner that violates any
  286  other provision of this chapter.
  287         Section 4. Section 815.055, Florida Statutes, is created to
  288  read:
  289         815.055Exceptions.—
  290         (1)Sections 815.051 and 815.053 do not apply to the
  291  monitoring of, or interaction with, an owner's or an operator’s
  292  Internet or other network connection, service, or computer by a
  293  telecommunications carrier, cable operator, computer hardware or
  294  software provider, or provider of information service or
  295  interactive computer service for purposes of network or computer
  296  security, diagnostics, technical support, maintenance, repair,
  297  network management, authorized updates of computer software or
  298  system firmware, authorized remote system management, or
  299  detection or prevention of the unauthorized use of, or
  300  fraudulent or other illegal activities in connection with, a
  301  network, service, or computer software, including scanning for
  302  and removing computer software proscribed under this chapter.
  303         (2)This section does not provide a defense to liability
  304  under the common law or any other state or federal law, and may
  305  not be construed to be an affirmative grant of authority to
  306  engage in any of the activities listed in this section.
  307         (3)This section does not impose liability on any
  308  communications service providers as defined in s. 202.11(2),
  309  commercial mobile service providers, or providers of information
  310  services, including, but not limited to, Internet access service
  311  providers and hosting service providers, if they provide the
  312  transmission, storage, or caching of electronic communications
  313  or messages of others or provide other related
  314  telecommunications, commercial mobile radio service, or
  315  information services used by others in violation of this
  316  chapter. This exemption from liability is consistent with and in
  317  addition to any liability exemption provided under 47 U.S.C. s.
  318  230.
  319         (4)This section does not prohibit or criminalize the use
  320  of software by parents or guardians to monitor Internet or
  321  computer usage of their minor children.
  322         Section 5. Section 815.06, Florida Statutes, is amended to
  323  read:
  324         815.06 Offenses against computer users.—
  325         (1) Whoever willfully, knowingly, and without
  326  authorization:
  327         (a) Accesses or causes to be accessed any computer,
  328  computer system, or computer network;
  329         (b) Disrupts or denies or causes the denial of computer
  330  system services to an authorized user of such computer system
  331  services, which, in whole or part, is owned by, under contract
  332  to, or operated for, on behalf of, or in conjunction with
  333  another;
  334         (c) Destroys, takes, injures, or damages equipment or
  335  supplies used or intended to be used in a computer, computer
  336  system, or computer network;
  337         (d) Destroys, injures, or damages any computer, computer
  338  system, or computer network; or
  339         (e)Violates s. 815.051 or s. 815.053; or
  340         (f)(e) Introduces any computer contaminant into any
  341  computer, computer system, or computer network,
  342  
  343  commits an offense against computer users.
  344         (2)(a) Except as provided in paragraphs (b) and (c),
  345  whoever violates subsection (1) commits a felony of the third
  346  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  347  775.084.
  348         (b) Whoever violates subsection (1) and:
  349         1. Damages a computer, computer equipment, computer
  350  supplies, a computer system, or a computer network, and the
  351  monetary damage or loss incurred as a result of the violation is
  352  $5,000 or greater;
  353         2. Commits the offense for the purpose of devising or
  354  executing any scheme or artifice to defraud or obtain property;
  355  or
  356         3. Interrupts or impairs a governmental operation or public
  357  communication, transportation, or supply of water, gas, or other
  358  public service,
  359  
  360  commits a felony of the second degree, punishable as provided in
  361  s. 775.082, s. 775.083, or s. 775.084.
  362         (c) Whoever violates subsection (1) and the violation
  363  endangers human life commits a felony of the first degree,
  364  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  365         (3) Whoever willfully, knowingly, and without authorization
  366  modifies equipment or supplies used or intended to be used in a
  367  computer, computer system, or computer network commits a
  368  misdemeanor of the first degree, punishable as provided in s.
  369  775.082 or s. 775.083.
  370         (4)The Department of Legal Affairs or a state attorney may
  371  file a civil action on behalf of the people of this state for
  372  injunctive relief against any person or group violating
  373  subsection (1) to restrain the prohibited activity. The court
  374  may award court costs and reasonable attorney's fees to the
  375  prevailing party. The court may also impose a civil penalty that
  376  may not exceed $10,000 for each violation of subsection (1), and
  377  the total penalties may not exceed $1 million per defendant.
  378         (5)(4)(a) In addition to any other civil remedy available,
  379  the owner or lessee of the computer, computer system, computer
  380  network, computer program, computer equipment, computer
  381  supplies, or computer data may bring a civil action against any
  382  person convicted under this section for compensatory damages.
  383         (b) In any action brought under this subsection, the court
  384  may award reasonable attorney's fees to the prevailing party.
  385         (6)(5) Any computer, computer system, computer network,
  386  computer software, or computer data owned by a defendant which
  387  is used during the commission of any violation of this section
  388  or any computer owned by the defendant which is used as a
  389  repository for the storage of software or data obtained in
  390  violation of this section is subject to forfeiture as provided
  391  under ss. 932.701-932.704.
  392         (7)(6) This section does not apply to any person who
  393  accesses his or her employer's computer system, computer
  394  network, computer program, or computer data when acting within
  395  the scope of his or her lawful employment.
  396         (8)(7) For purposes of bringing a civil or criminal action
  397  under this section, a person who causes, by any means, the
  398  access to a computer, computer system, or computer network in
  399  one jurisdiction from another jurisdiction is deemed to have
  400  personally accessed the computer, computer system, or computer
  401  network in both jurisdictions.
  402         (9)This section does not prohibit a private litigant from
  403  filing a civil action for damages arising under this section.
  404         Section 6. This act shall take effect July 1, 2009.