House Passes First Spyware Bill

October 5, 2004. The House passed HR 2929, the "Securely Protect Yourself Against Cyber Trespass Act", or SPY ACT, on a roll call vote of 399-1. See, Roll Call No. 495. HR 2929 is the House Commerce Committee's spyware bill. The House is scheduled to consider HR 4661, the "Internet Spyware (I-SPY) Prevention Act of 2004", which is the House Judiciary Committee's bill, on Wednesday, October 6.

HR 2929 prohibits certain conduct with respect to spyware, and gives the Federal Trade Commission (FTC) civil enforcement authority. Legislation regarding the consumer protection and the FTC are within the jurisdiction of the House Commerce Committee. See, House Rule X.

HR 4661 amends Title 18 to provide criminal penalties for certain conduct related to spyware. Crime legislation is within the jurisdiction of the House Judiciary Committee.

Rep. Joe Barton (R-TX) stated at a press conference after the floor debate on HR 2929 that he supports HR 4661. He added that Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee, insisted on a separate floor vote for his Committee's bill.

The Senate has taken no action on either HR 2929 or HR 4661. However, there is a S 2145, the "Software Principles Yielding Better Levels of Consumer Knowledge Act", or SPY BLOCK Act, sponsored by Sen. Conrad Burns (R-MT) and others. The Senate Commerce Committee amended and approved S 2145 on September 22, 2004. See, story titled "Senate Commerce Committee Approves Spyware Bill" in TLJ Daily E-Mail Alert No. 983, September 24, 2004.

At the September 22 meeting, the Committee approved an amendment offered by Sen. George Allen (R-VA) that creates a new class of criminal prohibitions. This amendment contains the language of HR 4661 the House Judiciary Committee bill. However, the non-criminal provisions of S 2145 and HR 2929 and different.

Sponsors and supporters of HR 2929 addressed the nature, and evils consequences, of spyware during floor debate on Tuesday afternoon, and during a joint press conference after the debate. They referenced the loss of privacy, the theft of documents and information, identity theft and other fraud, and decreased computer performance.

Rep. Cliff Stearns (R-FL), who Chairs the Subcommittee on Commerce, Trade and Consumer Protection, said that this "is a major piece of legislation" and "probably one of the first privacy pieces of legislation".

Rep. Barton (at right) stated that he is committed to putting a bill on the President's desk for his signature, "this year". He added that he will "make phone calls to three or four Senators" about the possibility of a "pre-conference" on spyware legislation. That is, rather than having the House pass two bills and the Senate pass a bill, and then going to conference to reconcile the differences, he suggested that differences be reconciled quickly, and before Senate consideration, in order to facilitate final passage of legislation in the little time that remains of the 108th Congress.

Rep. John Dingell (D-MI), the ranking Democrat on the House Commerce Committee, stated before the roll call vote that the Congress is "on the brink" of passing spyware legislation, not only in the House, "but also in the Senate".

Rep. Dingell (at left) also stated, as he has before, that spyware is similar to wiretapping. He said that it is "the equivalent of having a wiretap on your phone that allows someone to listen to your conversations".

However, neither HR 2929, HR 4661 nor S 2145, would amend the Wiretap Act (in Title 18) or the Communications Act (in Title 47). Rather, they create a new body of statutory law to be enforced by the FTC, and a new criminal section that is not a part of the Wiretap Act. The criminal provisions of HR 4661 and S 2145 add a new Section 1030A to the Criminal Code titled "Illicit indirect use of protected computers" to create two narrow criminal prohibitions related to some of the more egregious forms of spyware. The existing Section 1030 pertains to fraud and related activity in connection with computers. It contains the bans on unauthorized access to computers that serves as the statutory basis for many prosecutions of hackers.

HR 2929 is also unlike the Wiretap Act in that the Wiretap Act is primarily a restraint upon government conduct, while HR 2929 is a restraint upon private conduct. HR 2929 contains a blanket exemption for "any act taken by a law enforcement agent in the performance of official duties".

Legislative History. The bills under consideration by the House and Senate were introduced by Rep. Mary Bono (R-CA), Rep. Bob Goodlatte (R-VA), and Sen. Conrad Burns (R-MT). However, the first spyware bill was introduced in the 106th Congress by Sen. John Edwards (D-NC). See, S 3180 (106th), the "Spyware Control and Privacy Protection Act of 2000". He introduced a bill, along with Sen. Ernest Hollings (D-SC), at the outset of the 107th Congress, in January of 2001. See, S 197 (107th), the "Spyware Control and Privacy Protection Act of 2001".

Rep. Bono (at left) and Rep. Edolphus Towns (D-NY) introduced HR 2929 on July 25, 2003. See, story titled "Rep. Bono Introduces Spyware Bill" in TLJ Daily E-Mail Alert No. 706, July 29, 2003.

The Subcommittee on Commerce, Trade, and Consumer Protection approved an amendment in the nature of a substitute [18 pages in PDF] on June 17, 2004. See also, story titled "House Subcommittee Approves Spyware Bill" in TLJ Daily E-Mail Alert No. 922, June 21, 2004.

The full Commerce Committee amended and approved HR 2929 on June 24, 2004. See, story titled "House Commerce Committee Approves Spyware Bill" in TLJ Daily E-Mail Alert No. 926, June 25, 2004. See also, House Report No. 108-619.

On June 23, 2004, Rep. Goodlatte, Rep. Zoe Lofgren (D-CA), and Rep. Lamar Smith (R-TX) introduced HR 4661 the "Internet Spyware (I-SPY) Prevention Act of 2004". See, story titled "Judiciary Committee Members Introduce Spyware Bill" in TLJ Daily E-Mail Alert No. 928, June 29, 2004,

The House Judiciary Committee approved its bill on September 8. See, story titled "House Judiciary Committee Approves Spyware Bill" in TLJ Daily E-Mail Alert No. 973, September 9, 2004.

On February 27, 2004, Sen. Conrad Burns (R-MT), Sen. Ron Wyden (D-OR), and Sen. Barbara Boxer (D-CA), introduced S 2145. See, story titled "Senators Introduce Anti-Spyware Bill" in TLJ Daily E-Mail Alert No. 847, March 2, 2004.

March 23, 2004, the Senate Commerce Committee's Subcommittee on Communications held a hearing on spyware and S 2145,

The Senate Commerce Committee amended and approved S 2145 on September 22, 2004. See, story titled "Senate Commerce Committee Approves Spyware Bill" in TLJ Daily E-Mail Alert No. 983, September 24, 2004.

Rep. Bono, the sponsor of HR 2929, discussed the negotiations with interested entities that produced the manager's amendment to HR 2929. She said that "the devil was always in the details, in tweaking the bill over time with industry. They had a lot of legitimate concerns, and at some points, I believe, they were actually worried because they like some version of spyware or adware. But eventually, through many many many hours of hard work with my colleagues up here, and industry, and other staff members, we were able to find a good good bill that not only will continue to promote technology and e-commerce, but will stomp out the insidious behavior that I think we have all described and heard so much."

She stated that the drafting and revising of the bill was "a very very arduous process" involving Members, their staff, and representatives of industry. She said that one of the issues was the automatic updating of software. She said that this is a good and legitimate practice, but the consumer ought to know what is being done.

She said that sponsors of the bill eventually obtained the support of Microsoft, which she described as "the 800 pound gorilla in the room".

The final vote was 399-1. Most of the 32 Members who did not vote are either engaged in election campaigns in close races, have health related reasons for missing the vote, or are retiring. Rep. Ron Paul (R-TX) cast the only vote against the bill. He frequently casts votes against bills. The four members of the House Judiciary Committee who voted against the bill during the full Committee markup -- Rep. Anna Eshoo (D-CA), Rep. Darrell Issa (R-CA), Rep. Ted Strickland (D-OH), and Rep. Bart Stupak (D-MI) -- all voted for the bill on the House floor.