SENATE BILL No. 54

 

 

January 25, 2005, Introduced by Senators BROWN, PATTERSON and BISHOP and referred to the Committee on Technology and Energy.

 

 

 

 

 

 

     A bill to amend 1979 PA 53, entitled

 

"An act to prohibit access to computers, computer systems, and

computer networks for certain fraudulent purposes; to prohibit

intentional and unauthorized access, alteration, damage, and

destruction of computers, computer systems, computer networks,

computer software programs, and data; to prohibit the sending of

certain electronic messages; and to prescribe penalties,"

 

by amending section 7 (MCL 752.797), as amended by 2000 PA 180, and

 

by adding section 5b.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 5b. (1) A person shall not install or attempt to install

 

spyware into a computer program, computer, computer system, or

 

computer network belonging to another person unless all of the

 

following apply:

 

     (a) The person provides his or her name and business address

 


and a valid telephone number, e-mail address, or internet service

 

provider address where he or she can be reached.

 

     (b) If the spyware is to be installed on behalf of another

 

person, the person provides the name and business address and a

 

valid telephone number, e-mail address, or internet service

 

provider address of that other person.

 

     (c) The person provides specific notice of the intent to

 

install the spyware. The notice shall include a statement that

 

instructions or software will be downloaded into the computer

 

program, computer, computer system, or computer network, and how

 

the instructions or software are intended to affect the operation

 

of the computer program, computer, computer system, or computer

 

network.

 

     (d) If a fee is to be charged or may be incurred, the person

 

specifically states that a fee is to be charged or may be incurred

 

and the amount of the fee.

 

     (e) If information is to be obtained from the computer

 

program, computer, computer system, or computer network, the person

 

specifically states the information that is to be obtained.

 

     (f) If sexually explicit material will be displayed, a

 

statement that sexually explicit material will be displayed.

 

     (g) The notice provides a method by which the owner or person

 

responsible for maintaining the computer program, computer,

 

computer system, or computer network can refuse installation of the

 

spyware and require that no further contact be made regarding the

 

installation of spyware.

 

     (h) The owner or person responsible for maintaining the

 


computer program, computer, computer system, or computer network

 

affirmatively grants the right to install the spyware.

 

     (2) If the right to install spyware is authorized under this

 

section, the person installing the spyware shall not exceed the

 

nature or the scope of the authorization granted.

 

     (3) A person shall not manufacture, create, distribute, or

 

possess spyware to be used in violation of this section.

 

     (4) A person shall not subsequently contact a person who has

 

informed him or her under subsection (1)(g) that no further contact

 

is to be made.

 

     (5) Except as provided in subsection (6), as used in this

 

section, "spyware" means computer instructions or software

 

installed into a computer program, computer, computer system, or

 

computer network for any of the following purposes:

 

     (a) Monitoring the use of a computer program, computer,

 

computer system, or computer network.

 

     (b) Sending information about the use of a computer program,

 

computer, computer system, or computer network to a remote computer

 

or server or data collection site or point.

 

     (c) Displaying an advertisement or causing an advertisement to

 

be displayed in response to the use of a computer program,

 

computer, computer system, or computer network.

 

     (6) Spyware does not include any of the following:

 

     (a) Computer instructions or software installed into a

 

computer program, computer, computer system, or computer network by

 

the manufacturer of the computer program, computer, computer

 

system, or computer network and that is intended to facilitate

 


ordinary and expected access to and use of the computer program,

 

computer, computer system, or computer network.

 

     (b) Except as otherwise provided in this section, computer

 

instructions or software installed into a computer program,

 

computer, computer system, or computer network by the owner of that

 

computer program, computer, computer system, or computer network.

 

     (c) Computer instructions or software installed into a

 

computer program, computer, computer system, or computer network by

 

a person maintaining a computer program, computer, computer system,

 

or computer network on behalf of the owner of that computer

 

program, computer, computer system, or computer network while

 

acting within the scope of his or her authority.

 

     (d) An internet service provider acting within the scope of

 

his or her authority as an internet service provider.

 

     (e) A person authorized by law to conduct criminal

 

investigations while acting within the scope of his or her

 

authority as an investigator.

 

     (f) Instructions commonly known as cookies that are intended

 

solely to facilitate recognition of the computer for internet

 

access or internet use.

 

     Sec. 7. (1) A person who violates section 4 is guilty of a

 

crime as follows:

 

     (a) If the violation involves an aggregate amount of less than

 

$200.00, the person is guilty of a misdemeanor punishable by

 

imprisonment for not more than 93 days or a fine of not more than

 

$500.00 or 3 times the aggregate amount, whichever is greater, or

 

both imprisonment and a fine.

 


     (b) If any of the following apply, the person is guilty of a

 

misdemeanor punishable by imprisonment for not more than 1 year or

 

a fine of not more than $2,000.00 or 3 times the aggregate amount,

 

whichever is greater, or both imprisonment and a fine:

 

     (i) The violation involves an aggregate amount of $200.00 or

 

more but less than $1,000.00.

 

     (ii) The person violates this act and has a prior conviction.

 

     (c) If any of the following apply, the person is guilty of a

 

felony punishable by imprisonment for not more than 5 years or a

 

fine of not more than $10,000.00 or 3 times the aggregate amount,

 

whichever is greater, or both imprisonment and a fine:

 

     (i) The violation involves an aggregate amount of $1,000.00 or

 

more but less than $20,000.00.

 

     (ii) The person has 2 prior convictions.

 

     (d) If any of the following apply, the person is guilty of a

 

felony punishable by imprisonment for not more than 10 years or a

 

fine of not more than 3 times the aggregate amount, or both

 

imprisonment and a fine:

 

     (i) The violation involves an aggregate amount of $20,000.00 or

 

more.

 

     (ii) The person has 3 or more prior convictions.

 

     (2) A person who violates section 5 is guilty of a crime as

 

follows:

 

     (a) Except as provided in subdivision (b), the person is

 

guilty of a felony punishable by imprisonment for not more than 5

 

years or a fine of not more than $10,000.00, or both.

 

     (b) If the person has a prior conviction, the person is guilty

 


of a felony punishable by imprisonment for not more than 10 years

 

or a fine of not more than $50,000.00, or both.

 

     (3) A person who violates section 5b is guilty of a crime as

 

follows:

 

     (a) Except as provided in subdivisions (b) and (c), the person

 

is guilty of a misdemeanor punishable by imprisonment for not more

 

than 93 days or a fine of not more than $1,000.00, or both.

 

     (b) If the violation causes interruption of or interference to

 

the use of the computer program, computer, computer system, or

 

computer network, the person is guilty of a felony punishable by

 

imprisonment for not more than 2 years or a fine of not more than

 

$5,000.00, or both.

 

     (c) If the person has a prior conviction, the person is guilty

 

of a felony punishable by imprisonment for not more than 4 years or

 

a fine of not more than $10,000.00, or both.

 

     (4)   (3)  A person who violates section 6 is guilty of a

 

crime as follows:

 

     (a) If the underlying crime is a misdemeanor or a felony with

 

a maximum term of imprisonment of 1 year or less, the person is

 

guilty of a misdemeanor punishable by imprisonment for not more

 

than 1 year or a fine of not more than $5,000.00, or both.

 

     (b) If the underlying crime is a misdemeanor or a felony with

 

a maximum term of imprisonment of more than 1 year but less than 2

 

years, the person is guilty of a felony punishable by imprisonment

 

for not more than 2 years or a fine of not more than $5,000.00, or

 

both.

 

     (c) If the underlying crime is a misdemeanor or a felony with

 


a maximum term of imprisonment of 2 years or more but less than 4

 

years, the person is guilty of a felony punishable by imprisonment

 

for not more than 4 years or a fine of not more than $5,000.00, or

 

both.

 

     (d) If the underlying crime is a felony with a maximum term of

 

imprisonment of 4 years or more but less than 10 years, the person

 

is guilty of a felony punishable by imprisonment for not more than

 

7 years or a fine of not more than $5,000.00, or both.

 

     (e) If the underlying crime is a felony punishable by a

 

maximum term of imprisonment of 10 years or more but less than 20

 

years, the person is guilty of a felony punishable by imprisonment

 

for not more than 10 years or a fine of not more than $10,000.00,

 

or both.

 

     (f) If the underlying crime is a felony punishable by a

 

maximum term of imprisonment of 20 years or more or for life, the

 

person is guilty of a felony punishable by imprisonment for not

 

more than 20 years or a fine of not more than $20,000.00, or both.

 

     (5)   (4)  The court may order that a term of imprisonment

 

imposed under subsection  (3)  (4) be served consecutively to any

 

term of imprisonment imposed for conviction of the underlying

 

offense.

 

     (6)   (5)  If the prosecuting attorney intends to seek an

 

enhanced sentence under section 4,  or section  5, or 5a based upon

 

the defendant having a prior conviction, the prosecuting attorney

 

shall include on the complaint and information a statement listing

 

that prior conviction. The existence of the defendant's prior

 

conviction shall be determined by the court, without a jury, at

 


sentencing. The existence of a prior conviction may be established

 

by any evidence relevant for that purpose, including, but not

 

limited to, 1 or more of the following:

 

     (a) A copy of the judgment of conviction.

 

     (b) A transcript of a prior trial, plea-taking, or sentencing.

 

     (c) Information contained in a presentence report.

 

     (d) The defendant's statement.

 

     (7)   (6)  It is a rebuttable presumption in a prosecution for

 

a violation of section 5 that the person did not have authorization

 

from the owner, system operator, or other person who has authority

 

from the owner or system operator to grant permission to access the

 

computer program, computer, computer system, or computer network or

 

has exceeded authorization unless 1 or more of the following

 

circumstances existed at the time of access:

 

     (a) Written or oral permission was granted by the owner,

 

system operator, or other person who has authority from the owner

 

or system operator to grant permission of the accessed computer

 

program, computer, computer system, or computer network.

 

     (b) The accessed computer program, computer, computer system,

 

or computer network had a pre-programmed access procedure that

 

would display a bulletin, command, or other message before access

 

was achieved that a reasonable person would believe identified the

 

computer program, computer, computer system, or computer network as

 

within the public domain.

 

     (c) Access was achieved without the use of a set of

 

instructions, code, or computer program that bypasses, defrauds, or

 

otherwise circumvents the pre-programmed access procedure for the

 


computer program, computer, computer system, or computer network.

 

     (8)   (7)  The court may order a person convicted of violating

 

this act to reimburse this state or a local unit of government of

 

this state for expenses incurred in relation to the violation in

 

the same manner that expenses may be ordered to be reimbursed under

 

section 1f of chapter IX of the code of criminal procedure, 1927 PA

 

175, MCL 769.1f.

 

     (9)   (8)  As used in this section, "prior conviction" means a

 

violation or attempted violation of section 145d of the Michigan

 

penal code, 1931 PA 328, MCL 750.145d, or this act or a

 

substantially similar law of the United States, another state, or a

 

political subdivision of another state.