Florida Senate - 2009                       CS for CS for SB 164
       
       
       
       By the Committees on Judiciary; and Commerce; and Senator Ring
       
       
       
       
       590-02987-09                                           2009164c2
    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 an effective date.
   32  
   33  Be It Enacted by the Legislature of the State of Florida:
   34  
   35         Section 1. Section 815.03, Florida Statutes, is amended to
   36  read:
   37         815.03 Definitions.—As used in this chapter, unless the
   38  context clearly indicates otherwise:
   39         (1) “Access” means to approach, instruct, communicate with,
   40  store data in, retrieve data from, or otherwise make use of any
   41  resources of a computer, computer system, or computer network.
   42         (2)“Cause to be copied” means to distribute or transfer
   43  computer software or any component thereof. The term does not
   44  include:
   45         (a)Transmission, routing, provision of intermediate
   46  temporary storage, or caching of software;
   47         (b)A storage or hosting medium, such as a compact disk,
   48  website, or computer server through which the software was
   49  distributed by a third party; or
   50         (c)An information-location tool, such as a directory,
   51  index, reference, pointer, or hypertext link, through which the
   52  user of the computer locates software.
   53         (3)(2) “Computer” means an internally programmed, automatic
   54  device that performs data processing.
   55         (4)(3) “Computer contaminant” means any set of computer
   56  instructions designed to modify, damage, destroy, record, or
   57  transmit information within a computer, computer system, or
   58  computer network without the intent or permission of the owner
   59  of the information. The term includes, but is not limited to, a
   60  group of computer instructions commonly called viruses or worms
   61  which are self-replicating or self-propagating and which are
   62  designed to contaminate other computer programs or computer
   63  data; consume computer resources; modify, destroy, record, or
   64  transmit data; or in some other fashion usurp the normal
   65  operation of the computer, computer system, or computer network.
   66         (5)(4) “Computer network” means any system that provides
   67  communications between one or more computer systems and its
   68  input or output devices, including, but not limited to, display
   69  terminals and printers that are connected by telecommunication
   70  facilities.
   71         (6)(5) “Computer program or computer software” means a set
   72  of instructions or statements and related data which, when
   73  executed in actual or modified form, cause a computer, computer
   74  system, or computer network to perform specified functions.
   75  “Computer software” means a sequence of instructions written in
   76  any programming language that is executed on a computer.
   77  “Computer software” does not include a data component of a web
   78  page that is not executable independently of the web page.
   79         (7)(6) “Computer services” include, but are not limited to,
   80  computer time; data processing or storage functions; or other
   81  uses of a computer, computer system, or computer network.
   82         (8)(7) “Computer system” means a device or collection of
   83  devices, including support devices, one or more of which contain
   84  computer programs, electronic instructions, or input data and
   85  output data, and which perform functions, including, but not
   86  limited to, logic, arithmetic, data storage, retrieval,
   87  communication, or control. The term does not include calculators
   88  that are not programmable and that are not capable of being used
   89  in conjunction with external files.
   90         (9)“Computer virus” means a computer program or other set
   91  of instructions designed to degrade the performance of or
   92  disable a computer or computer network and designed to have the
   93  ability to replicate itself on other computers or computer
   94  networks without the authorization of the owners of those
   95  computers or computer networks.
   96         (10)“Damage” means any significant impairment to the
   97  integrity or availability of data, software, a system, or
   98  information.
   99         (11)(8) “Data” means a representation of information,
  100  knowledge, facts, concepts, computer software, computer
  101  programs, or instructions. Data may be in any form, in storage
  102  media or stored in the memory of the computer, or in transit or
  103  presented on a display device.
  104         (12)“Deceptive” means any of the following:
  105         (a)A materially false or fraudulent statement.
  106         (b)A statement or description that intentionally omits or
  107  misrepresents material information in order to deceive an owner
  108  or operator of a computer.
  109         (c)A material failure to provide a notice to an owner or
  110  operator regarding the installation or execution of computer
  111  software for the purpose of deceiving the owner or operator.
  112         (13)“Execute,” when used with respect to computer
  113  software, means the performance of the functions or the carrying
  114  out of the instructions of the computer software.
  115         (14)(9) “Financial instrument” means any check, draft,
  116  money order, certificate of deposit, letter of credit, bill of
  117  exchange, credit card, or marketable security.
  118         (15)(10) “Intellectual property” means data, including
  119  programs.
  120         (16)“Internet” means the global information system that is
  121  logically linked together by a globally unique address space
  122  based on the Internet protocol (IP), or its subsequent
  123  extensions, that is able to support communications using the
  124  transmission control protocol/Internet protocol (TCP/IP) suite,
  125  or its subsequent extensions, or other IP-compatible protocols,
  126  and that provides, uses, or makes accessible, publicly or
  127  privately, high-level services layered on the communications and
  128  related infrastructure described in this chapter.
  129         (17)“Owner or operator” means the owner or lessee of a
  130  computer, or a person using such computer with the owner or
  131  lessee’s authorization, but does not include a person who owned
  132  a computer before the first retail sale of the computer.
  133         (18)“Message” means a graphical, text, voice, or audible
  134  communication presented to an authorized user of a computer.
  135         (19)“Person” means any individual, partnership,
  136  corporation, limited liability company, or other organization,
  137  or any combination thereof.
  138         (20)“Personally identifiable information” means any of the
  139  following information if it allows the entity holding the
  140  information to identify the owner or operator of a computer:
  141         (a)The first name or first initial in combination with the
  142  last name.
  143         (b)A home or other physical address including street name.
  144         (c)Personal identification code in conjunction with a
  145  password required to access an identified account, other than a
  146  password, personal identification number, or other
  147  identification number transmitted by an authorized user to the
  148  issuer of the account or its agent.
  149         (d)Social security number, tax identification number,
  150  driver’s license number, passport number, or any other
  151  government-issued identification number.
  152         (e)Account balance, bank account number, or credit card
  153  numbers, overdraft history, or payment history that personally
  154  identifies an owner or operator of a computer.
  155         (21)(11) “Property” means anything of value as defined in
  156  s. 812.011 and includes, but is not limited to, financial
  157  instruments, information, including electronically produced data
  158  and computer software and programs in either machine-readable or
  159  human-readable form, and any other tangible or intangible item
  160  of value.
  161         Section 2. Section 815.051, Florida Statutes, is created to
  162  read:
  163         815.051Prohibitions; use of software.—A person who is not
  164  an owner or operator of a computer may not cause computer
  165  software to be copied on a computer knowingly, with conscious
  166  avoidance of actual knowledge, or willfully, and without
  167  authorization, or to use such software to do any of the
  168  following:
  169         (1)Modify, through deceptive means, settings of a computer
  170  which control any of the following:
  171         (a)The webpage that appears when an owner or operator
  172  launches an Internet browser or similar computer software used
  173  to access and navigate the Internet.
  174         (b)The default provider or web proxy that an owner or
  175  operator uses to access or search the Internet.
  176         (c)An owner’s or an operator’s list of bookmarks used to
  177  access web pages.
  178         (2)Collect, through deceptive means, personally
  179  identifiable information through any of the following means:
  180         (a)The use of a keystroke-logging function that records
  181  all or substantially all keystrokes made by an owner or operator
  182  of a computer and transfers that information from the computer
  183  to another person.
  184         (b)In a manner that correlates personally identifiable
  185  information with data regarding all or substantially all of the
  186  websites visited by an owner or operator, other than websites
  187  operated by the person providing the software, if the computer
  188  software was installed in a manner designed to conceal from all
  189  authorized users of the computer the fact that the software is
  190  being installed.
  191         (c)By extracting from the hard drive of an owner’s or an
  192  operator’s computer, an owner’s or an operator’s personally
  193  identifiable information for a purpose unrelated to any of the
  194  purposes of the software or service described to an authorized
  195  user.
  196         (3)Prevent, through deceptive means, an owner’s or an
  197  operator’s reasonable efforts to block the installation of or
  198  execution of, or to disable, computer software by causing
  199  computer software that the owner or operator has properly
  200  removed or disabled to automatically reinstall or reactivate on
  201  the computer without the authorization of an authorized user.
  202         (4)Deceptively misrepresent that computer software will be
  203  uninstalled or disabled by an owner’s or an operator’s action.
  204         (5)Through deceptive means, remove, disable, or render
  205  inoperative security, antispyware, or antivirus computer
  206  software installed on an owner’s or an operator’s computer.
  207         (6)Enable the use of an owner’s or an operator’s computer
  208  to do any of the following:
  209         (a)Access or use a modem or Internet service for the
  210  purpose of causing damage to an owner’s or an operator’s
  211  computer or causing an owner or operator, or a third party
  212  affected by such conduct, to incur financial charges for a
  213  service that the owner or operator did not authorize.
  214         (b)Open multiple, sequential, or stand-alone messages in
  215  an owner’s or an operator’s computer without the authorization
  216  of an owner or operator and with knowledge that a reasonable
  217  computer user could not close the messages without turning off
  218  the computer or closing the software application in which the
  219  messages appear; however, this paragraph does not apply to
  220  communications originated by the computer’s operating system,
  221  originated by a software application that the user chooses to
  222  activate, originated by a service provider that the user chooses
  223  to use, or presented for any of the purposes described in s.
  224  815.06(7).
  225         (c)Transmit or relay commercial electronic mail or a
  226  computer virus from the computer, if the transmission or
  227  relaying is initiated by a person other than the authorized user
  228  and without the authorization of an authorized user.
  229         (7)Use deceptive means to modify any of the following
  230  settings related the computer’s access to, or use of, the
  231  Internet:
  232         (a)Settings that protect information about an owner or
  233  operator for the purpose of obtaining personally identifiable
  234  information of the owner or operator.
  235         (b)Security settings for the purpose of causing damage to
  236  a computer.
  237         (c)Settings that protect the computer from the uses
  238  identified in subsection (6).
  239         (8)Use deceptive means to prevent, without the
  240  authorization of an owner or operator, an owner’s or an
  241  operator’s reasonable efforts to block the installation of, or
  242  to disable, computer software by doing any of the following:
  243         (a)Presenting the owner or operator with an option to
  244  decline installation of computer software with knowledge that,
  245  when the option is selected by the authorized user, the
  246  installation nevertheless proceeds.
  247         (b)Falsely representing that computer software has been
  248  disabled.
  249         (c)Requiring in a deceptive manner the user to access the
  250  Internet to remove the software with knowledge or reckless
  251  disregard of the fact that the software frequently operates in a
  252  manner that prevents the user from accessing the Internet.
  253         (d) Changing the name, location, or other designation
  254  information of the software for the purpose of preventing an
  255  authorized user from locating the software in order to remove
  256  it.
  257         (e)Using randomized or deceptive filenames, directory
  258  folders, formats, or registry entries for the purpose of
  259  avoiding detection and removal of the software by an authorized
  260  user.
  261         (f)Causing the installation of software in a particular
  262  computer directory or computer memory for the purpose of evading
  263  authorized users’ attempts to remove the software from the
  264  computer.
  265         (g)Requiring, without the authority of the owner of the
  266  computer, that an authorized user obtain a special code or
  267  download software from a third party in order to uninstall the
  268  software.
  269         Section 3. Section 815.053, Florida Statutes, is created to
  270  read:
  271         815.053Other prohibitions.—A person who is not an owner or
  272  operator of a computer may not do any of the following with
  273  regard to the computer:
  274         (1)Induce an owner or operator to install a computer
  275  software component onto the owner’s or operator’s computer by
  276  deceptively misrepresenting that installing computer software is
  277  necessary for security or privacy reasons or in order to open,
  278  view, or play a particular type of content.
  279         (2)Using deceptive means to cause the execution of a
  280  computer software component with the intent of causing the
  281  computer to use such component in a manner that violates any
  282  other provision of this chapter.
  283         Section 4. Section 815.055, Florida Statutes, is created to
  284  read:
  285         815.055 Exceptions.—Sections 815.051 and 815.053 do not:
  286         (1)Apply to the monitoring of, or interaction with, an
  287  owner’s or an operator’s Internet or other network connection,
  288  service, or computer by a telecommunications carrier, cable
  289  operator, computer hardware or software provider, or provider of
  290  information service or interactive computer service for purposes
  291  of network or computer security, diagnostics, technical support,
  292  maintenance, repair, network management, authorized updates of
  293  computer software or system firmware, authorized remote system
  294  management, or detection or prevention of the unauthorized use
  295  of, or fraudulent or other illegal activities in connection
  296  with, a network, service, or computer software, including
  297  scanning for and removing computer software proscribed under
  298  this chapter.
  299         (2)Impose liability on any communications service
  300  providers as defined in s. 202.11(2), commercial mobile service
  301  providers, or providers of information services, including, but
  302  not limited to, Internet access service providers and hosting
  303  service providers, if they provide the transmission, storage, or
  304  caching of electronic communications or messages of others or
  305  provide other related telecommunications, commercial mobile
  306  radio service, or information services used by others in
  307  violation of this chapter. This exemption from liability is
  308  consistent with and in addition to any liability exemption
  309  provided under 47 U.S.C. s. 230.
  310         (3)Prohibit or criminalize the use of software by parents
  311  or guardians to monitor Internet or computer usage of their
  312  minor children.
  313  
  314  This section does not provide a defense to liability under the
  315  common law or any other state or federal law, and may not be
  316  construed to be an affirmative grant of authority to engage in
  317  any of the activities listed in this section.
  318         Section 5. Section 815.06, Florida Statutes, is amended to
  319  read:
  320         815.06 Offenses against computer users.—
  321         (1) Whoever willfully, knowingly, and without
  322  authorization:
  323         (a) Accesses or causes to be accessed any computer,
  324  computer system, or computer network;
  325         (b) Disrupts or denies or causes the denial of computer
  326  system services to an authorized user of such computer system
  327  services, which, in whole or part, is owned by, under contract
  328  to, or operated for, on behalf of, or in conjunction with
  329  another;
  330         (c) Destroys, takes, injures, or damages equipment or
  331  supplies used or intended to be used in a computer, computer
  332  system, or computer network;
  333         (d) Destroys, injures, or damages any computer, computer
  334  system, or computer network; or
  335         (e)Violates s. 815.051 or s. 815.053; or
  336         (f)(e) Introduces any computer contaminant into any
  337  computer, computer system, or computer network,
  338  
  339  commits an offense against computer users.
  340         (2)(a) Except as provided in paragraphs (b) and (c),
  341  whoever violates subsection (1) commits a felony of the third
  342  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  343  775.084.
  344         (b) Whoever violates subsection (1) and:
  345         1. Damages a computer, computer equipment, computer
  346  supplies, a computer system, or a computer network, and the
  347  monetary damage or loss incurred as a result of the violation is
  348  $5,000 or greater;
  349         2. Commits the offense for the purpose of devising or
  350  executing any scheme or artifice to defraud or obtain property;
  351  or
  352         3. Interrupts or impairs a governmental operation or public
  353  communication, transportation, or supply of water, gas, or other
  354  public service,
  355  
  356  commits a felony of the second degree, punishable as provided in
  357  s. 775.082, s. 775.083, or s. 775.084.
  358         (c) Whoever violates subsection (1) and the violation
  359  endangers human life commits a felony of the first degree,
  360  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  361         (3) Whoever willfully, knowingly, and without authorization
  362  modifies equipment or supplies used or intended to be used in a
  363  computer, computer system, or computer network commits a
  364  misdemeanor of the first degree, punishable as provided in s.
  365  775.082 or s. 775.083.
  366         (4)The Department of Legal Affairs or a state attorney may
  367  file a civil action on behalf of the people of this state for
  368  injunctive relief against any person or group violating
  369  subsection (1) to restrain the prohibited activity. The court
  370  may award court costs and reasonable attorney’s fees to the
  371  prevailing party. The court may also impose a civil penalty that
  372  may not exceed $10,000 for each violation of subsection (1), and
  373  the total penalties may not exceed $1 million per defendant.
  374         (5)(4)(a) In addition to any other civil remedy available,
  375  the owner or lessee of the computer, computer system, computer
  376  network, computer program, computer equipment, computer
  377  supplies, or computer data may bring a civil action against any
  378  person convicted under this section for compensatory damages.
  379         (b) In any action brought under this subsection, the court
  380  may award reasonable attorney’s fees to the prevailing party.
  381         (6)(5) Any computer, computer system, computer network,
  382  computer software, or computer data owned by a defendant which
  383  is used during the commission of any violation of this section
  384  or any computer owned by the defendant which is used as a
  385  repository for the storage of software or data obtained in
  386  violation of this section is subject to forfeiture as provided
  387  under ss. 932.701-932.704.
  388         (7)(6) This section does not apply to any person who
  389  accesses his or her employer’s computer system, computer
  390  network, computer program, or computer data when acting within
  391  the scope of his or her lawful employment.
  392         (8)(7) For purposes of bringing a civil or criminal action
  393  under this section, a person who causes, by any means, the
  394  access to a computer, computer system, or computer network in
  395  one jurisdiction from another jurisdiction is deemed to have
  396  personally accessed the computer, computer system, or computer
  397  network in both jurisdictions.
  398         Section 6. This act shall take effect July 1, 2009.