January 31, 2007, Introduced by Senators BROWN, JELINEK, KAHN, RICHARDVILLE, BASHAM, BIRKHOLZ, CROPSEY and PAPPAGEORGE and referred to the Committee on Judiciary.
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 do any of the following:
(a) Intentionally and without authorization install or attempt
to install spyware into a computer, computer program, computer
system, or computer network belonging to another person.
(b) Intentionally and without authorization use or attempt to
use spyware that has been installed into a computer, computer
program, computer system, or computer network belonging to another
person.
(c) Manufacture, sell, or possess spyware with the intent that
it be used to violate this act.
(2) This section does not prohibit the person from being
charged with, convicted of, or sentenced for any other violation of
law arising out of the violation of this section.
(3) As used in this section:
(a) "Authorized user" means the owner of a computer, computer
program, computer system, or computer network or a person
authorized by the owner or the lessee to use the computer, computer
program, computer system, or computer network.
(b) "Cookie" means a nonexecutable text or data file that is
used by, or placed on, the computer, computer program, computer
system, or computer network, by an internet service provider,
interactive computer service, or internet website, to return
information to that provider, service, or website, or to any device
such as a web beacon to facilitate the use of the computer,
computer program, computer system, or computer network by an
authorized user.
(c) "Deceptively" means to knowingly do any of the following
with the intent to deceive or when unrelated to an authorized use:
(i) Make a materially false statement or pretense.
(ii) Omit material information regarding a use or conceal the
existence or purpose from an authorized user.
(d) "Install" means to attach or insert computer instructions
or a computer program.
(e) "Internet" means that term as defined in 47 USC 230.
(f) Except as provided in subsection (4), "spyware" means
computer instructions or a computer program that deceptively
monitors, collects, copies, or transfers copies of or is
deceptively installed to monitor, collect, copy, or transfer copies
of, data or information from or information regarding the use of a
computer, computer program, computer system, or computer network,
including any of the following:
(i) Keystrokes made by an authorized user.
(ii) Websites visited by an authorized user, other than
websites of the provider of the software or the originating website
location or uniform resource locator automatically sent to the
destination website when an authorized user changes websites.
(iii) Other data or information contained on the computer,
computer system, or computer network, such as personally
identifiable files on a hard drive.
(4) Spyware does not include any of the following:
(a) Conduct by a person acting pursuant to a valid legal
process within the scope of his or her legal authority.
(b) A cookie.
(c) Any of the following:
(i) Monitoring of, or interaction with, an authorized user's
internet or other network or connection service, or computer by a
telecommunications carrier, cable operator, computer hardware or
software provider, provider of information service, or interactive
computer service.
(ii) For network or computer security purposes, diagnostics,
technical support, repair, authorized updates of software, or
system firmware.
(iii) Authorized remote system management.
(iv) Detection or prevention of the unauthorized use of, or
fraudulent or other illegal activities in connection with, a
network, service, or computer software, including scanning for and
removing software with the reasonable belief that it was installed
in violation of this section.
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 or 5b 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 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.
(4) The court may order that a term of imprisonment imposed
under subsection (3) be served consecutively to any term of
imprisonment imposed for conviction of the underlying offense.
(5) If the prosecuting attorney intends to seek an enhanced
sentence under section 4 or section 5 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.
(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.
(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.
(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.