On March 26, 2010, the governor of Utah signed into law the Utah E-Commerce Integrity Act (S.B. 26), which prohibits certain Internet-related conduct, including phishing, pharming, spyware and cybersquatting that involves “a computer, software, or an advertisement located in, sent to, or displayed in” Utah. (Legislative history of the bill, and alternate text versions can be found here.)
Essentially, the bill provides the following:
- Prohibits the facilitation of “certain types of fraud and injury through use of electronic communications;”
- “Allows for the removal of domain names and online content by an Internet registrar or [ISP] under certain circumstances;”
- “Forbids the use of various types of software, commonly called spyware, if used for certain purposes;”
- “Provides exceptions from spyware provisions for various types of communications and interactions, including authorized diagnostics;”
- “Prohibits the registration of domain names under certain circumstances, commonly referred to as cybersquatting;” and
- “Provides civil penalties for a violation of cybersquatting provisions”.
It also prohibits the passage of contrary laws by subdivisions of the state and makes other technical changes.
Key among the provisions are definitions of what activities constitute phishing, pharming, spyware and cybersquatting. Notably, the statute only applies to activities that occur after July 1, 2010 (although for cybersquatting and infringement, the effective date is May 11, 2010).
Any ISP that is “adversely affected by the violation”; “an owner of a web page, computer server or trademark that is used without authorization by the violation;” or 3) the attorney general may file suit to recover damages for phishing or pharming activities. Either actual damages or “a civil penalty not to exceed $150,000” per violation can be awarded.
In the case of spyware, not only are the ISP, attorney general and trademark owner whose mark was used to deceive others able to file suit, but the owner of “a software company that expends resources in good faith assisting authorized users harmed by a violation” of this provision can also sue. The damages awarded in these instances can be actual and liquidated damages of between $1,000 and $1,00,000 as well as attorneys fees and costs. There are certain exceptions to the damages thresholds, depending on the circumstances.
The cybersquatting provisions are structured similarly to the AntiCybersquatting Consumer Protection Act (15 USC § 1125(d)), and permit the transfer of an affected domain name in the case of a successful judgment against the defendant, but also differ in certain ways from the federal provisions. Specifically, they allow personal names to be included in the scope of protection under the act and exempt domain name registrars from legal action except in cases of bad faith or reckless disregard. There are other differences as well, but these were the most obvious.