Adopted by House 1-30-08

HB4053 H JUD AM 1-29 #1

The Committee on the Judiciary moves to amend the committee substitute on page two, following the enacting clause, by striking out the remainder of the committee substitute and inserting in lieu thereof the following language:
That §61-3C-3 and §61-3C-16 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto four new sections, designated §61-3C-4a, §61-3C-4b, §61-3C-4c and §61-3C-4d, all to read as follows:
§61-3C-3. Definitions.
As used in this article, unless the context clearly indicates otherwise:
(a) "Access" means to instruct, communicate with, store data in, retrieve data from, intercept data from or otherwise make use of any computer, computer network, computer program, computer software, computer data or other computer resources.
(b) "Advertisement" means a communication, the primary purpose of which is the commercial promotion of a commercial product or service, including a communication on an Internet web site that is operated for a commercial purpose.
(b) (c) "Authorization" means the express or implied consent given by a person to another to access or use said person's computer, computer network, computer program, computer software, computer system, password, identifying code or personal identification number.
(c) (d) "Computer" means an electronic, magnetic, optical, electrochemical or other high speed data processing device performing logical, arithmetic or storage functions and includes any data storage facility or communication facility directly related to or operating in conjunction with such device. The term "computer" includes any connected or directly related device, equipment or facility which enables the computer to store, retrieve or communicate computer programs, computer data or the results of computer operations to or from a person, another computer or another device, but such term does not include an automated typewriter or typesetter, a portable hand-held calculator or other similar device.
(d) (e) "Computer contaminant" means any set of computer instructions that are designed to damage or destroy information within a computer, computer system or computer network without the consent or permission of the owner of the information. They include, but are not limited to, a group of computer instructions commonly called viruses or worms that are self-replicating or self-propagating and are designed to contaminate other computer programs or computer data, consume computer resources or damage or destroy the normal operation of the computer.
(e)(f) "Computer data" means any representation of knowledge, facts, concepts, instruction or other information computed, classified, processed, transmitted, received, retrieved, originated, stored, manifested, measured, detected, recorded, reproduced, handled or utilized by a computer, computer network, computer program or computer software and may be in any medium, including, but not limited to, computer print-outs, microfilm, microfiche, magnetic storage media, optical storage media, punch paper tape or punch cards, or it may be stored internally in read-only memory or random access memory of a computer or any other peripheral device.
(f) (g) "Computer network" means a set of connected devices and communication facilities, including more than one computer, with the capability to transmit computer data among them through such communication facilities.
(g) (h) "Computer operations" means arithmetic, logical, storage, display, monitoring or retrieval functions or any combination thereof and includes, but is not limited to, communication with, storage of data in or to, or retrieval of data from any device and the human manual manipulation of electronic magnetic impulses. A "computer operation" for a particular computer shall also mean any function for which that computer was designed.
(h) (i) "Computer program" means an ordered set of computer data representing instructions or statements, in a form readable by a computer, which controls, directs or otherwise influences the functioning of a computer or computer network.
(i) (j) "Computer software" means a set of computer programs, procedures and associated documentation concerned with computer data or with the operation of a computer, computer program or computer network sequence of instructions written in any programming language that is executed on a computer. "Computer software" does not include computer software that is a web page, or are data components of web pages that are not executable independently of the web page.
(j) (k) "Computer services" means computer access time, computer data processing or computer data storage and the computer data processed or stored in connection therewith.
(k) (l) "Computer supplies" means punch cards, paper tape, magnetic tape, magnetic disks or diskettes, optical disks or diskettes, disk or diskette packs, paper, microfilm and any other tangible input, output or storage medium used in connection with a computer, computer network, computer data, computer software or computer program.
(l) (m) "Computer resources" includes, but is not limited to, information retrieval; computer data processing, transmission and storage; and any other functions performed, in whole or in part, by the use of a computer, computer network, computer software or computer program.
(n) "Damage" means any significant impairment to the integrity or availability of data, computer software, a system, or information.
(o) "Execute" means the performance of the functions or the carrying out of the instructions of the computer software.
(p) "Financial instrument" includes, but is not limited to, any check, draft, warrant, money order, note, certificate of deposit, letter of credit, bill of exchange, credit or debit card, transaction authorization mechanism, marketable security or any computerized representation thereof.
(q) "Intentionally deceptive" means any of the following:
(1) An intentionally and materially false or fraudulent statement;
(2) A statement or description that intentionally omits or misrepresents material information in order to deceive an owner or operator; and
(3) An intentional and material failure to provide any notice to an owner or operator regarding the installation or execution of computer software in order to deceive the owner or operator.
(r) "Internet" means the global information system that is logically linked together by a globally unique address space based on the Internet protocol (IP), or its subsequent extensions, and that is able to support communications using the transmission control protocol/Internet protocol (TCP/IP) suite, or its subsequent extensions, or other IP-compatible protocols, and that provides, uses, or makes accessible, either publicly or privately, high level services layered on the communications and related infrastructure described in this subsection.
(m) (s) "Owner or Operator" means any person who owns or leases or is a licensee of a computer, computer network, computer data, computer program, computer software, computer resources or computer supplies the owner or lessee of a computer, or someone using such computer with the owner's or lessee's authorization. "Owner or operator" does not include any person who owns a computer before the first retail sale of such computer.
(n) (t) "Person" means any natural person, general partnership, limited partnership, trust, association, corporation, joint venture or any state, county or municipal government and any subdivision, branch, department or agency thereof.
(u) "Personally identifiable information" means any of the following with respect to an individual who is an owner or operator:
(1) First name or first initial in combination with last name;
(2) A home or other physical address including street name;
(3) An electronic mail address;
(4) A credit or debit card number, bank account number, or a password or access code associated with a credit or debit card or bank account;
(5) Social security number, tax identification number, driver's license number, passport number, or any other government-issued identification number; and
(6) Any of the following information in a form that personally identifies an owner or operator:
(i) Account balances;
(ii) Overdraft history; and
(iii) Payment history.
(o) (v) "Property" includes:
(1) Real property;
(2) Computers and computer networks;
(3) Financial instruments, computer data, computer programs, computer software and all other personal property regardless of whether they are:
(i) Tangible or intangible;
(ii) In a format readable by humans or by a computer;
(iii) In transit between computers or within a computer network or between any devices which comprise a computer; or
(iv) Located on any paper or in any device on which it is stored by a computer or by a human; and
(4) Computer services.
(w) "Transmit" means to transfer, send, or make available computer software, or any component thereof, via the Internet or any other medium, including local area networks of computers, other nonwire transmission, and disc or other data storage device. "Transmit" does not include any action by a person providing:
(1) The Internet connection, telephone connection, or other means of transmission capability such as a compact disk or digital video disk through which the software was made available;
(2) The storage or hosting of the software program or a web page through which the software was made available; or
(3) An information location tool, such as a directory, index reference, pointer, or hypertext link, through which the user of the computer located the software, unless such person receives a direct economic benefit from the execution of such software on the computer.
(p) (x) "Value" means having any potential to provide any direct or indirect gain or advantage to any person.
(q) "Financial instrument" includes, but is not limited to, any check, draft, warrant, money order, note, certificate of deposit, letter of credit, bill of exchange, credit or debit card, transaction authorization mechanism, marketable security or any computerized representation thereof.
(r) (y) "Value of property or computer services" shall be:
(1) The market value of the property or computer services at the time of a violation of this article; or
(2) If the property or computer services are unrecoverable, damaged or destroyed as a result of a violation of section six or seven of this article, the cost of reproducing or replacing the property or computer services at the time of the violation.
§61-3C-4a. Unlawful transmission of computer software to modify settings; collection of personal information by deceptive means; prevention of efforts to protect a computer.
It is unlawful for a person who is not an owner or operator to transmit computer software to the owner or operator's computer with actual knowledge or with conscious avoidance of actual knowledge and to use such software to do any of the following:
(1) Modify, through intentionally deceptive means, settings that control any of the following:
(a) The page that appears when an owner or operator launches an Internet browser or similar computer software used to access and navigate the Internet;
(b) The default provider or web proxy the owner or operator uses to access or search the Internet; and
(c) The owner or operator's list of bookmarks used to access web pages;
(2) Collect, through intentionally deceptive means, personally identifiable information:
(a) Through the use of a keystroke-logging function that records all keystrokes made by an owner or operator and transfers that information from the computer to another person;
(b) In a manner that correlates such information with data respecting all or substantially all of the web sites visited by an owner or operator, other than web sites operated by the person collecting such information; and
(c) Described in section three, subdivision (u), paragraphs (4), (5), or (6) of this article by extracting the information from the owner or operator's hard drive;
(3) Prevent, through intentionally deceptive means, an owner or operator's efforts to block the installation or execution of, or to disable, computer software by causing the software that the owner or operator has properly removed or disabled automatically to reinstall or reactivate on the computer;
(4) Intentionally misrepresent that computer software will be uninstalled or disabled by an owner or operator's action; or
(5) Through intentionally deceptive means, remove, disable, or render inoperative security, anti-spyware, or anti-virus computer software installed on the computer.
§61-3C-4b. Unlawful transmission of software to take control of a computer or by opening multiple pop-up windows; modifying computer setting to steal personal information or damage computer; preventing efforts to block or disable software.
It is unlawful for a person who is not an owner or operator to transmit computer software to the owner or operator's computer with actual knowledge or with conscious avoidance of actual knowledge and to use the software to do any of the following:
(1) Take control of the computer by:
(a) Accessing or using the modem or Internet service for such computer to cause damage to the computer or cause an owner or operator to incur financial charges for a service that is not authorized by the owner or operator;
(b) Opening multiple, sequential, stand-alone advertisements in the owner or operator's Internet browser without the authorization of an owner or operator and that a computer user cannot close without turning off the computer or closing the Internet browser;
(2) Modify any of the following settings related to the computer's access to, or use of, the Internet:
(a) Settings that protect information about the owner or operator in order to steal the owner or operator's personally identifiable information; and
(b) Security settings in order to cause damage to a computer; or
(3) Prevent an owner or operator's efforts to block the installation of, or to disable, computer software by doing any of the following:
(a) Presenting the owner or operator with an option to decline installation of computer software with knowledge that, when the option is selected, the installation nevertheless proceeds; and
(b) Falsely representing that computer software has been disabled.
§61-3C-4c. Unlawful inducement to install software or deceptively causing the execution of harmful software.
It is unlawful for a person who is not an owner or operator to do any of the following with regard to the owner or operator's computer:
(1) Induce an owner or operator to install a computer software component onto the computer by intentionally misrepresenting the extent to which installing the software is necessary for security or privacy reasons or in order to open, view, or play a particular type of content; or
(2) Deceptively cause the execution on the computer of a computer software component with the intent of causing the owner or operator to use the component in a manner that violates any other provision of this section.
§61-3C-4d. Exceptions.
Sections four-b and four-c of this article do not apply to any monitoring of, or interaction with, a subscriber's Internet or other network connection or service, or a computer, by a telecommunications carrier, cable operator, computer hardware or software provider, or provider of information service or interactive computer service for network or computer security purposes, diagnostics, technical support, maintenance, repair, authorized updates of software or system firmware, authorized remote system management, or detection or prevention of the use of or fraudulent or other illegal activities prohibited by this act in connection with a network, service, or computer software, including scanning for and removing software under this article.
§61-3C-16. Civil relief; damages.
(a) Any person whose property or person is injured by reason of a violation of any provision of this article may sue therefor in circuit court and may be entitled to recover for each violation:
(1) Compensatory damages;
(2) Punitive damages; and
(3) Such other relief, including injunctive relief, as the court may deem appropriate.
Without limiting the generality of the term, "damages" shall include loss of profits.
(b) The attorney general is authorized to receive and act on complaints, take action designed to obtain voluntary compliance with this article or commence proceedings against a person who violates this article to enjoin further violations and to recover damages as provided in subsection (a).
(c) At the request of any party to an action brought pursuant to this section, the court may, in its discretion, conduct all legal proceedings in such a manner as to protect the secrecy and security of the computer network, computer data, computer program or computer software involved in order to prevent any possible recurrence of the same or a similar act by another person or to protect any trade secret or confidential information of any person. For the purposes of this section "trade secret" means the whole or any portion or phase of any scientific or technological information, design, process, procedure or formula or improvement which is secret and of value. A trade secret shall be presumed to be secret when the owner thereof takes measures to prevent it from becoming available to persons other than those authorized by the owner to have access thereto for a limited purpose.
(c d) The provisions of this section shall not be construed to limit any person's right to pursue any additional civil remedy otherwise allowed by law.
(d e) A civil action under this section must be commenced before the earlier of: (1) Five years after the last act in the course of conduct constituting a violation of this article; or (2) two years after the plaintiff discovers or reasonably should have discovered the last act in the course of conduct constituting a violation of this article.