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Senate backs spyware bill, creates private right of action
Summary
The Senate approved a fourth substitute of House Bill 323 after debate. The bill targets covert advertising/tracking software (spyware), creates a private right of action including damages and injunctive relief, and includes exceptions for ISPs and specified data types.
House Bill 323, a measure aimed at curbing spyware and certain tracking practices online, moved forward on March 2 after a floor discussion that emphasized consumer privacy concerns and carved-out exceptions.
Senator Valentine, floor sponsor, described technologies that insert ads and capture personal browsing or payment information without users’ informed consent. He summarized the fourth substitute as giving a private right of action to harmed users: “A private right of action includes damages, injunctive relief, [and] the ability to obtain reasonable attorneys’ fees,” Valentine said on the floor while explaining exemptions for Internet service providers and certain categories of data.
Senators acknowledged the technical difficulty of regulating rapidly evolving online practices. Senator Allen said the bill is “much required” and cited industry opposition, while Senator Aaron cautioned that legitimate, consumer-choice-based business models (for example, opt-in, ad-supported software offered for free) should not be unintentionally prohibited. Aaron asked whether the bill’s consent language would permit business models where users accept ads in exchange for free software and whether consent occurs before or after installation; Valentine noted that line 67’s consent provision and the software’s removal mechanisms were points that could be refined.
Under suspension of rules, the Senate read the fourth substitute of HB 323 for third consideration. The Senate recorded 24 yeas and no nays with five members absent; the bill passes to the third-reading calendar.
Next steps: HB 323 will return on the Senate’s third-reading calendar. Floor comments flagged consent language and technical exceptions as likely topics for amendment or technical cleanup in later stages.
